Citation Nr: 1645184	
Decision Date: 12/01/16    Archive Date: 12/19/16

DOCKET NO.  13-06 701	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for right foot, status post-Austin bunionectomy and 2nd toe arthroplasty and osteotomy, claimed as secondary to the service-connected above-the-knee amputation of the left lower extremity.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION

The Veteran had active service from May 1965 to February 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA).

In August 2013, the Board remanded the case to the RO to schedule the Veteran for a videoconference hearing before a Veterans Law Judge.  In November 2013, the Veteran withdrew his request for a videoconference hearing that had been scheduled for December 2013.  Therefore, the hearing request is deemed withdrawn.

In April 2016, the claim was remanded again for further development.


FINDING OF FACT

The competent evidence is at least in equipoise as to whether the Veteran's right foot status post-Austin bunionectomy and 2nd toe arthroplasty and osteotomy is aggravated by the service-connected above-the-knee amputation of the left lower extremity.


CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for right foot status post-Austin bunionectomy and 2nd toe arthroplasty and osteotomy, to include as secondary to residuals of an above-the-knee amputation of the left lower extremity have been met.  38 U.S.C.A. §§ 1110, 1111, 1131, 1132 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met.  Given the fully favorable decision below, a detailed explanation of how VA complied with the VCAA is unnecessary.

II. Right Foot 

The Veteran asserts that he has a right foot disability, specifically a status post-Austin bunionectomy and 2nd toe arthroplasty and osteotomy impairment that is secondary to his service-connected above-the-knee amputation of the left lower extremity.

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310 (a).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995). 

When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for a claim to be denied.  Alemany v. Brown, 9 Vet. App. 518 (1996).

The STRs reflect that during service, the Veteran was involved in a motorcycle accident resulting in an above-the-knee amputation (AKA) of the left lower extremity.  In April 2002, private surgical records reflect that he had complained of progressive pain from a bunion deformity, and that a modified Austin bunionectomy hammer toe correction with arthrodesis proximal interphalangeal joint second tenotomy, capsulotomy second metatarsophalangeal joint, with injection for acute capsulitis was performed.

In an August 1982 disability examination it was noted no foot condition.

Treatment records reflect complaints of pain and surgical intervention for the right foot, to include a sore second digit, fungal toenails ingrown toenails hammertoes ulcer of the foot, pes planus atherosclerosis of the extremities venous insufficiency painful limb and hallux valgus.  (Treatment records dated from January 2004 to January 2013).

In August and December of 2009, the Veteran had two surgeries on his right foot.

A November 2009 X-ray of the right foot reflects previous right foot surgeries and surgical fixation.

In a December 2010 VA medical examination of the feet, the Veteran complained of right foot symptoms attributed to gait abnormality following his left AKA.  The VA examiner opined that he or she could not resolve whether the Veteran's right foot condition was the due to the left AKA without resorting to speculation.  He noted that the Veteran had been favoring left AKA with prosthesis therefore causing increase stress on his right knee.  

In a May 2011 statement, the podiatrist who performed the Veteran's right foot surgery in 2002, opined that his status post left leg amputation contributed to the development of his right lower extremity deformities and that his initial presentation was for a painful bunion on his right foot.

A December 2012 operative report, noted under indications for procedure: "he continues to have shifting and deviation of the toes with failure of toes to maintain adequate stability...given that this patient is an amputee, we have over exhausted these options (referring to conservative treatment) and at this point, we have discussed alternatives including surgical intervention."

An April 2016 VA examination reflects that the examiner reviewed the claims file.  The examiner opined that it was less likely than not (less than 50% probability) that any current right foot disability, disability inclusive of status post-Austin bunionectomy and 2nd toe arthroplasty and osteotomy was caused by or permanently aggravated by the Veteran's service-connected connected above-the-knee amputation of the left lower extremity.  The examiner's rationale was premised, in part, on the fact that STRs showed no right foot condition in service and that after service he was gainfully employed with the auto/sheriff's department.  The examiner further stated that he was diagnosed with a right foot bunion for which he had a bunionectomy in 2002-several years after service.  The examiner also stated that peer reviewed medical literature supported the conclusion that the right foot disabilities resulted from tight fitting shoes.  

Based on a review of the record, the evidence is in equipoise, the Board finds that service connection is warranted for the right foot status-post Austin bunionectomy and 2nd toe arthroplasty and osteotomy.

There is conflicting medical evidence that weighs both for and against the claim for service connection.  While the April 2016 VA examiner stated that it was less likely than not that any current right foot disability, disability inclusive of status post-Austin bunionectomy and 2nd toe arthroplasty and osteotomy was caused by or permanently aggravated by his service-connected connected above-the-knee amputation of the left lower extremity, the Board finds the opinion of little probative value.  The medical examiner extensively described the medical history.  The examiner did not opine on aggravation and merely stated that there was no evidence of a foot condition during service and provided an opinion that tight fitting shoes were the cause of the bunions.  The examiner also does not address the assertion by the Veteran and his private podiatrist that his abnormal gait from the amputation initially caused his right foot bunion, which led to his current disabilities.

However, the medical evidence in favor of service connection is also of reduced probative value in that the private examiner did not provide a rationale for his positive nexus opinion.  He stated that the "status post left leg amputation contributed to the development of his right lower extremity deformities and that his initial presentation was for a painful bunion on his right foot."  With regard to the December 2010 VA opinion, the examiner could not render an opinion without resort to speculation.  He concluded that the current right foot condition was more than likely caused by the bunion on his right foot.  But, the examiner did not opine as to whether the Veteran's gait abnormality caused the bunion on the right foot.  

As discussed above, the Board has sought an adequate medical opinion that is supported by rationale and the record.  Above, the insufficiencies of each opinion of record is noted.  Considering this evidence, however, the Board finds that further delay in adjudication of this appeal is not warranted.  The Board finds that the current evidence of record is at least in relative equipoise as to whether the Veteran's service-connected left lower extremity disability has permanently aggravated the right foot disability.

Accordingly, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise.  Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a right foot status post-Austin bunionectomy and 2nd toe arthroplasty and osteotomy caused by service-connected above-the-knee amputation of the left lower extremity, is warranted.  38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for right foot, status post-Austin bunionectomy and 2nd toe arthroplasty and osteotomy, claimed as secondary to the service-connected above-the-knee amputation of the left lower extremity, is granted.



____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs