Citation Nr: 1751743 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 17-30 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for right and left foot hammertoes. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1955 to January 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by the Fargo, North Dakota, Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, a hearing was held before a decision review officer (DRO); a transcript is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Right and left foot hammertoes were not manifested in service and are not shown to be etiologically related to the Veteran's service. CONCLUSION OF LAW Service connection for right and left foot hammertoes is not warranted. 38 U.S.C. §§ 101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) This matter was filed as a "Fully Developed Claim" (FDC) pursuant to VA's program to expedite claims. The notice that accompanies the FDC form satisfies VA's duty to notify. Regarding VA's duty to assist the Veteran, the RO has obtained his service treatment records (STRs), his VA treatment records, and private treatment records he identified. The RO arranged for a VA medical opinion in December 2016 (with an addendum opinion in May 2017). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Factual Background The Veteran contends that his current right and left foot hammertoes were a result of wearing boots that were too small in service. The Veteran's STRs note that he was issued a size 10.5 boots and a size 12 shoes. His STRs are silent for any complaint, finding, treatment, or diagnosis regarding the feet. On November 1957 service separation examination; his feet were normal on clinical evaluation. The earliest postservice clinical record pertaining to the feet in the record is a September 2006 VA treatment record which notes the Veteran's report sore and stiff feet in the morning. September 2006 X-rays were interpreted as showing "mild degenerative changes at the levels of the first MTP joints, with soft tissue prominence medial to the first joints" and "flexion deformities of several digits, with hallux valgus deviations particularly of the second, third and fourth digits bilaterally." A November 2006 VA treatment record notes the Veteran's complaint of sore feet. The Veteran indicated soreness in the arch and the metatarsal head. On physical examination, there was pain on palpation of the arch of the right foot. There was no pain on palpation to the metatarsal heads bilaterally. Toes were contracted two through five bilaterally. The diagnosis was plantar fasciitis A September 2008 private clinical record notes the Veteran's complaint of feet discomfort. He reported a "weird sensation now for 10 years" that had worsened over time. The diagnoses were hammertoes of the lessor digits as well as to the great toe, equinus and pes cavus. The podiatrist noted that the Veteran's "hammering digits are not completely reducible and with this he has distal and dorsal position of the plantar fat causing increased pressure to the metatarsal heads with discomfort with palpation to the metatarsophalangeal joints" An April 2016 VA treatment record notes hammertoes of the second, third and fourth toe bilaterally with tenderness on the right foot hammertoes. X-rays revealed degenerative changes and the second and third digits held in flexion. In an April 2016 statement, the Veteran reported that his feet have been damaged since service. He stated that he was issued a size 11 boots when he needed a size 12. He reported that he wore the size 11 boots for six weeks before he was given the proper size. On December 2016 VA examination, the diagnosis was bilateral second, third and fourth toe hammertoes. On physical examination there was tenderness to palpation of the second, third and fourth hammertoes, bilaterally. The examiner noted that "hammertoe deformity exists owing to the underlying pathoanatomy," and opined that the Veteran's hammertoes condition was less likely than not incurred in or caused by the claim in-service event. The examiner noted the Veteran's report that he was issued a size 11 boot, instead of a size 12 and had to wear them for six weeks. He observed that the Veteran's January 1958 separation examination does not note a foot condition and opined that there is no evidence that a chronic condition regarding the Veteran's bilateral hammertoes existed in-service. He indicated that the Veteran did not seek medical attention for his hammertoes until several years later. At the April 2017 DRO hearing, the Veteran testified that he recalled being issued a size 11 boot although he stated that he needed a size 12. He reported that he was told to take his boots and move on. He testified that he had painful blisters, which began to interfere with walking. He was questioned about his feet and explained that he was issued the wrong size boots. He testified that he was given salve for his feet and provided the proper fitting boots a couple of weeks later. In an April 2017 statement, the Veteran's wife reported that on their wedding night in April 1959, she saw that his toes were "bent in and the knuckle of the toe was sticking up in the air." She noted that the Veteran stated it was due to being issued boots that were too small in service. She reported that over the years his toes have worsened. The author of the December 2016 VA examination report then prepared a May 2017 clarifying addendum to that report. He opined that the Veteran's foot condition was less likely than not incurred in, or caused by wearing small boots while in service. He noted that the Veteran received VA treatment in May 2001 and there was no mention of foot pain. An examination of the extremities revealed "pedal pulses 1 to 2+"and no pedal edema. The examiner noted that the Veteran was seen at the VA in 2006 for bilateral foot pain and stiffness. The podiatrist noted that the Veteran's "toes were contracted second through fifth bilaterally". The diagnosis was plantar fasciitis, right heel. The examiner also referenced the Veteran's September 2008 private treatment record, which notes his report of a weird sensation in his feet for the past year. The examiner concluded that this would indicate that the Veteran's hammertoe pain started in approximately 1998. He stated that hammertoes, claw toes, and lesser toe deformities are "relatively common and arise from soft tissue injury, inflammatory arthritis, neuromuscular disorders, or trauma, although genetic predisposition may play a role". The examiner noted the Veteran's contention of a foot disability since service but stated that his separation exam does not document a bilateral foot condition and there is no medical evidence suggesting an ongoing bilateral foot condition. In his May 2017 substantive appeal, the Veteran reported that did not complain about his feet during his separation examination because he was ready to get out the Army, and he thought that he would have to stay longer if he complained. The Veteran also reported that the VA examiner was incorrect in his assessment that the Veteran's September 2008 report of a "weird sensation" in his feet for ten years related to his hammertoes condition. Analysis It is not in dispute that the Veteran now has right and left foot hammertoes; such pathology was diagnosed by private providers and on December 2016 VA examination. What remains necessary to substantiate the claim of service connection is evidence that such disability is etiologically related to his service. Whether or not that is so is a medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Although the Veteran's STRs note that he was issued size 10.5 boots and size 12 shoes, there is no evidence that right and left foot hammertoes were manifested in service or clinically demonstrated prior to September 2006. Accordingly, service connection for bilateral hammertoes on the basis that it became manifested in service and persisted is not warranted. What remains for consideration is whether the Veteran's current right and left foot hammertoes may somehow otherwise be etiologically related to his service. The only competent (medical) evidence in the record that directly addresses the matter of a nexus between the Veteran's current right and left foot hammertoes and his service is in the VA examiner's December 2016 opinion and March 2017 addendum opinion, which are against the Veteran's claim. The examiner expressed familiarity with the entire record and clearly explained the rationale for his opinion that the Veteran's bilateral hammertoes were less likely than not incurred in, or caused by wearing too small boots while in service. The Board finds the opinions, cumulatively merits substantial probative weight. The Veteran has not submitted any medical opinion in support of his claim. He has not presented any affirmative evidence of a relationship between his right and left foot hammertoes and his service, and none is suggested by the record. The Board has considered the Veteran's own statements and the lay statements by the Veteran's wife. However, whether or not there is a nexus between a currently diagnosed right and left foot hammertoes and Veteran's service is a medical question beyond the scope of common knowledge or capability of resolution by lay observation. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim. Accordingly, his appeal seeking service connection for right and left foot hammertoes must be denied. ORDER Service connection for right and left foot hammertoes is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs