Citation Nr: 1632025 Decision Date: 08/11/16 Archive Date: 08/23/16 DOCKET NO. 09-36 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for metatarsalgia. 2. Entitlement to service connection for hallux valgus. 3. Entitlement to service connection for flat feet. 4. Entitlement to service connection for hammer toes. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1983 to August 1991. Thereafter, he served in the Tennessee National Guard and was called for active duty from February 2003 to July 2003 and from December 2003 to April 2005. There is also evidence of record that the Veteran may have been activated from September 7, 2005, to September 30, 2005, following Hurricane Katrina, but this service has not been verified. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board notes that, although the Veteran filed a claim for service connection for hammer toes, the medical evidence of record documents numerous foot conditions, including flat feet, recurrent metatarsalgia, hallux valgus and hammer toe in the second toes bilaterally. Additionally, the Veteran identified nerve damage in his feet in his December 2008 notice of disagreement and September 2009 substantive appeal. In its previous remand decisions, the Board characterized the Veteran's claim as service connection for a foot condition. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). As this decision grants two foot conditions and remands two, the claim has been expanded as reflected on the title page. In February 2014, the Veteran testified before the undersigned Veteran's Law Judge at a travel board hearing. The transcript of that proceeding has been associated with the claims file. In April 2014, March 2015, and November 2015, the Board remanded the case for further evidentiary development. The issues of entitlement to service connection for flat feet and hammer toes are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's metatarsalgia of the feet was incurred in service. 2. The Veteran's hallux valgus of the feet was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for metatarsalgia of the feet have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for service connection for hallux valgus of the feet have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran's service treatment records include a May 1983 enlistment examination report which shows that clinical evaluation of the feet were normal at the time of entrance to service. On the May 1983 Report of Medical History, the Veteran checked "no" for having or having ever had "foot trouble". The service treatment records reflect that the Veteran sought treatment for right foot pain in November 1983. Flat feet and metatarsalgia of the right foot were assessed. On a January 1988 report of medical history, the Veteran indicated that he had painful ankles when walking for extended periods. In April 1988, the Veteran complained of left ankle pain. The clinician assessed metatarsalgia. A June 2003 service treatment record noted foot pain. In May 2004, the Veteran was seen with complaints of numbness of the left foot. He stated that he had had sharp pain in the joint of the large toe on the left foot for one month, and he saw a civilian doctor who stated that a pinch nerve was causing the problem. The Veteran thought that this might be the case once again. On examination, the left foot was not painful to touch, only when walking. Range of motion was painful. The examiner drew a sketch of the left foot depicting the area of pain in the left great toe joint. The examiner prescribed a pain reliever for the left great toe pain. A March 2005 report of medical examination documented an abnormal evaluation of the feet and indicated the presence of bilateral callouses. A May 2005 treatment record indicated bilateral pain in the soles of the Veteran's feet. In February 2006, the Veteran reported left foot pain which he described as a recurrent problem for years. An assessment of left foot hallux valgus was rendered. A March 2006 VA examination noted pes planus and a moderate degree of valgus on both the right and left. X-ray results were within normal limits. In April 2006, the Veteran sought treatment for pain in the left second toe. The assessment was Morton's Neuroma. A May 2006 VA treatment record indicated a provisional diagnosis of Morton's Metatarsalgia. A private treatment record dated in November 2008 indicated hammer toe deformities and bunion deformities bilaterally. An April 2009 VA treatment record indicated hallux valgus of the left foot. No other abnormality was noted. During VA treatment in February 2010, the Veteran was found to have flat feet with metatarsalgia. In April 2011, the Veteran was afforded a VA examination. The examiner noted no on-going foot conditions other than flat feet, which he opined was a congenital problem not caused or aggravated by service. In August 2014, the Veteran underwent a VA examination of his feet. The examiner reported current diagnoses of bilateral hallux valgus and hammertoes. The examiner recognized a diagnosis of metatarsalgia in the right foot in 1983, but reported that the Veteran did not currently have metatarsalgia. As to whether the Veteran's current diagnoses were related to service, the examiner opined that there was no evidence that the metatarsalgia noted in service was recurrent or that the hammer toes or hallux valgus diagnosed in November 2008, three years after the Veteran's last period of active duty, were related to service. He also opined that the hammer toes can be caused by a hallux valgus. In July 2015, another VA clinician reviewed the claims file and provided a negative opinion, opining that the metatarsalgia had resolved, that no diagnosis of pes planus was noted, and that hallux valgus and hammer toes were not noted or diagnosed during service. The Veteran was again examined in January 2016. The examiner noted that there is no current diagnosis of flat feet and that the Veteran's metatarsalgia had resolved on the August 2014 examination. Addressing the hallux valgus and hammertoes, the examiner opined that these conditions were not related to service because they were not noted or diagnosed during service. The examiner also opined that a foot condition did not clearly and unmistakably preexist service. After review of the record, the Board finds that service connection for metatarsalgia of the feet and hallux valgus of the feet are warranted. At the outset, the Board notes that a foot disability was not shown to clearly and unmistakably preexist service; the Veteran is considered sound upon entry onto active duty. 38 U.S.C.A. § 1111. Turning first to the metatarsalgia claim, although the VA opinions of record are against the claim, those opinions are based on the absence of a current diagnosis of metatarsalgia. However, the requirement of a current disability is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, a diagnosis of metatarsalgia was reported during VA treatment in February 2010, after the filing of the Veteran's claim in March 2008. Given that the service treatment records contain diagnoses of bilateral metatarsalgia, and that such was found by VA clinicians in 2006 and 2010, the Board concludes that the evidence is at least in equipoise regarding whether the Veteran's metatarsalgia of the feet was incurred in service. 38 C.F.R. § 3.303(a). Accordingly, resolving all doubt in his favor, service connection for metatarsalgia of the feet is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). Addressing the hallux valgus claim, the VA opinions of record are based on the absence of an in-service report of hallux valgus. However, in May 2004, the Veteran complained of sharp pain in the joint of the large toe on the left foot and the examiner drew a sketch of the left foot depicting the area of pain in the left great toe joint which was in the area where a bunion or bony protusion may form as a result of hallux valgus. In addition, bilateral foot calluses were found in service during the March 2005 medical examination. Given that the Veteran continued to report pain in the soles of his feet after separation, that hallux valgus was noted during VA treatment shortly following service, and that hallux valgus was diagnosed during the claim period, the Board concludes that the evidence is at least in equipoise regarding whether the Veteran's hallux valgus of the bilateral feet was incurred in service. 38 C.F.R. § 3.303(a). Accordingly, resolving all doubt in his favor, service connection for hallux valgus of the bilateral feet is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). ORDER Service connection for metatarsalgia of the bilateral feet is granted. Service connection for hallux valgus of the bilateral feet is granted. REMAND While additional delay is regrettable, the Board finds that an examination by a podiatrist is needed prior to adjudication of the remaining claims. Concerning the flat feet claim, as previously noted, in April 2011, a VA examiner opined that the Veteran's flat feet were a congenital problem not caused or aggravated by service. The examiner did not provide a rationale for his conclusion. Addressing the hammer toes claim, the August 2014 VA examiner opined that second-digit hammer toes can be caused by a hallux valgus deformity but did not opine as to whether the hammer toes were, in fact, caused by the hallux valgus. Therefore, the Veteran should be scheduled for an examination by a podiatrist. The podiatrist should address whether the flat feet condition represents a congenital defect or disease, and whether the hammer toe condition is related to service or to the hallux valgus deformity. On remand, updated private and VA treatment records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all private medical care providers who have treated him for his feet since November 2008. After securing the necessary releases, the AOJ should request any relevant records. The AOJ should not request any records that are duplicates of those already contained in the claims file. In addition, obtain VA treatment records dating from January 2016 to the present. If any requested records cannot be obtained, the claims file should be annotated as such and the Veteran and his representative should be notified of such. 2. After the above has been completed to the extent possible, schedule the Veteran for an examination by a podiatrist. The claims file must be reviewed by the podiatrist in conjunction with the examination. After reviewing the claims file and examining the Veteran, the podiatrist should respond to the following: a. Are the Veteran's flat feet considered a congenital defect? For purposes of answering this question, the examiner is asked to consider a congenital defect to be a condition that is static in nature, such that it is incapable of improvement or deterioration. Alternatively, is the Veteran's flat feet considered a congenital disease? In answering this question, the examiner is asked to consider a congenital disease to be a condition that is progressive in nature, such that it can worsen over time. Rather than being a condition that is present at birth (congenital), can flat feet be a condition that is acquired or that develops during military service? Please explain why or why not. b. If it is determined that the flat feet is a congenital defect, was there additional disability superimposed upon that congenital defect during the Veteran's service or lifetime? If so, is it at least as likely as not (50 percent probability or greater) that the superimposed disability was related to any event or injury during the Veteran's service? Please explain why or why not. c. If it is determined that the flat feet is a congenital disease (or neither a congenital disease or defect), is it as likely as not that the condition is related to service. Please explain why or why not. In rendering these opinions, the podiatrist should discuss the lack of findings of flat feet or any history of foot problems on the Veteran's May 1983 enlistment examination report as well as indications of flat feet in 1983, 2006 and 2010, the April 2011 VA examiner's opinion that the flat feet are a congenital problem not caused or aggravated by service, and the August 2014 and January 2016 VA examination reports. The podiatrist should then address the hammer toe conditions: d. Is it at least as likely as not that the hammer toes of the second toes bilateral are related to service? Please explain why or why not. e. If not related to service, is it at least as likely as not that the hammer toe condition was caused by the service-connected hallux valgus? Please explain why or why not. f. If not caused by the hallux valgus, the examiner should provide an opinion as to whether it is at least as likely as not that the hammer toes have been permanently worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) the hallux valgus. Please explain why or why not. g. If the examiner finds that the Veteran's hammer toe condition has been permanently worsened beyond normal progression (aggravated) by the hallux valgus, the examiner should attempt to quantify the degree of aggravation beyond the baseline level of hammer toe condition that is attributed to the hallux valgus. In answering these questions the examiner should address the November 2008 private treatment record indicating hammer toe deformities and bunion deformities bilaterally and the August 2014 VA examiner's opinion that second digit hammer toes can be caused by a hallux valgus deformity. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs