Citation Nr: 1756913 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 13-10 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to service connection for right foot disability. REPRESENTATION Veteran represented by: Adam Neidenberg, Attorney at Law ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1984 to March 1985. The Veteran also had service in the Army National Guard, including active duty training (ACDUTRA) as discussed below. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. This matter has since been transferred to the RO in White River Junction, Vermont. In September 2016, the Board denied service connection for a right foot disability. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In June 2017, the Court granted a Joint Motion for Remand (JMR), vacating the Board's decision and remanding for additional proceedings. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's right foot disability is related to a right foot injury that occurred while he was on ACDUTRA. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, right foot disability was incurred in active military service. 38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA. Id. The Veteran contends that he is entitled to service connection for a right foot disability resulting from a trailer that landed on his right foot while on ACDUTRA in May 1981. The Veteran's military personnel records show that he was on active duty, ACDUTRA, or full time training duty from May 2, 1981, to May 16, 1981. Thus, if the Veteran has right foot disability due to this injury, he is entitled to service connection. According to a May 7, 1981 sick slip contained in the Veteran's service treatment records, a 1/4-ton trailer tipped back on top of the Veteran's right foot, from the ball to the little toe. The sick slip prescribed light duty for 24 hours. In an August 1984 report of medical history for enlistment in the National Guard, the Veteran denied a history of foot trouble, and the examining physician noted that the Veteran had no serious illness or injury. In a corresponding report of medical examination, the Veteran was clinically evaluated as normal with the exception of an identifying body mark, scar, or tattoo at his right chest, and mild flat feet. In an August 1988 report of medical history, the Veteran denied a history of foot trouble. The corresponding report of medical examination provides that the Veteran was clinically evaluated as normal with the exception of a body mark at his right chest and a scar at his right forearm. An August 1992 report of medical history indicates that the Veteran denied a history of foot trouble. According to the August 1992 report of medical examination, the Veteran was clinically evaluated as normal, and there were no noted defects or abnormalities. Following service, an April 2000 private medical information form completed by the Veteran indicates that he was experiencing pain in his right foot and that his condition began three years prior. The Veteran noted that he had no past problems with his feet and/or ankles and that he had no prior history of foot or ankle surgery. A November 2001 private operative report indicates that the Veteran had foot surgery on his right foot for a painful soft tissue mass at the third intermetatarsal space. Dr. W. Gould rendered a post-operative diagnosis of suspect neuroma (pending pathological evaluation of soft tissue mass). According to a private pathology report dated later in November 2011, the right foot soft tissue mass was consistent with neuroma. A June 2002 private treatment record reveals that the Veteran complained of a painful bunion deformity involving his right foot that had been painful since the end of 2001. Dr. Gould noted that the Veteran's past medical history was unremarkable, that the bunion was not injury-related, and while the Veteran was working he experienced a significant amount of soreness in the region. Dr. Gould performed a bunionectomy of the right foot in June 2002. According to the operative report, the pre- and post-operative diagnoses were painful bunion deformity, right foot. Dr. Gould performed another surgery on the Veteran's right foot in November 2002. According to the operative report, the pre- and post-operative diagnoses were elongated second metatarsal of the right foot and enlarged bone involving the dorsomedial aspect of the interphalangeal joint of the right hallux. An April 2008 private operative report notes that the Veteran was status post bunion correction, osteotomy, and dorsal approach resection of interdigital neuroma of the third web space of the right foot. A plantar approach resection of interdigital neuroma of the third web space and exploration and removal of osteophyte at the second metatarsophalangeal joint was performed on the Veteran's right foot. The physician rendered a post-operative diagnosis of recurrent interdigital neuroma of the right third web space and dorsal spurring of the right second metatarsal. According to a June 2008 private treatment record, the Veteran reported a couple of ankle sprains, which he felt were due to pain on the plantar aspect of his foot. The physician noted that he believed a hypertrophic scar was the source of much of the Veteran's discomfort, and he noted a diagnosis of status post plantar approach resection of right foot neuroma. At a September 2008 private treatment, the Veteran reported pinpoint areas of pain on his right foot and a burning sensation when flexing his foot. Dr. Vernadakis gave an impression of Morton's neuroma with probable additional neuroma. The treatment plan was exploration and excision of the neuromas. In November 2008, Dr. Vernadakis performed an excision of the medial plantar nerve neuroma at the distal aspect with transposition into the interossei muscle of the right foot. According to the operative report, the pre- and post-operative diagnosis was neuroma of the medial plantar nerve proximal to the digital vessels. The Veteran was afforded a VA foot examination in July 2011. The examiner noted the May 1981 trailer-related injury, the Veteran's history of pain and surgeries of the right foot since 2001, and the Veteran's current symptoms. The examiner rendered diagnoses of recurrent neuromas of right foot status post-surgical excisions and status post bunionectomy of the right foot. The examiner opined that it was less likely than not that the Veteran's current foot condition was related to the May 1981 foot injury. The examiner stressed that although neuromas can have some relationship to past injuries, the lack of medical evidence of foot complaints between the time of the injury and 2001 made it difficult to link the May 1981 injury to the Veteran's current condition. A November 2011 private treatment record provides that the Veteran reported ongoing significant discomfort at his right foot. Dr. Vernadakis detailed that the Veteran reported that on one occasion, a trailer rolled over his right foot while on active duty. Dr. Vernadakis wrote that the Veteran had symptoms for several years prior to receiving treatment from him in 2008. The treatment record lists assessments of Morton's neuroma of the left foot and neuritis. The Board notes that while the assessment of Morton's neuroma was assigned to the left foot, this appears to be in error, as the treatment record pertains to the Veteran's right foot. VA received several lay statements pertaining to the Veteran's right foot in October 2012. The Veteran's spouse detailed that the Veteran had constant right foot pain and discomfort, which limited his activity and made it difficult to find comfortable shoes. T.S. provided that for two years he commanded a headquarters to which the Veteran was assigned while serving as a Staff Sergeant in the National Guard, and he has known the Veteran since then. T.S. referenced the 1981 trailer-related injury and maintained that since that time, the Veteran has had increased problems with mobility as a result of that injury. W.L., a friend of the Veteran's since meeting during National Guard service, provided that he witnessed the 1981 injury occur. He described how, over the years, the Veteran has talked about his continuing right foot pain and cold sensation, in addition to the impact of the pain on his ability to walk. W.L. noted that he had driven the Veteran to medical appointments on a couple of occasions and that based on his observations, the Veteran has had difficulty performing day-to-day activities for a long time. In a December 2012 private treatment record, Dr. A. Vernadakis noted the Veteran's ongoing complaints of foot pain. Dr. Vernadakis wrote that the Veteran's pain appeared to predate an unsuccessful Morton's neuroma excision surgery and go back to the Veteran's 1981 foot injury. He also noted what while the Veteran had diabetes, he had no symptoms in the left foot, and the condition was not due to diabetic neuropathy. Dr. Vernadakis provided no other rationale for his conclusion that the Veteran's pain was related to the 1981 foot injury. In a January 2013 letter, the Veteran's private podiatrist, Dr. Gould, noted that the Veteran was his long-time patient and had multiple afflictions with his right foot. Dr. Gould referenced the May 1981 injury and stated that it was "quite logical to correlate this trauma to the chronic foot problems he has dealt with, and continues to deal with." Based on the above, the Veteran has met the current disability and in-service injury requirements. The dispositive issue in this case is therefore whether there is a relationship between the two. There are conflicting medical opinions on this question. The opinion of the July 2011 VA examiner was that there was no such relationship. In contrast, Drs. Vernadakis and Gould indicated that there was such a relationship. The parties to the JMR found the July 2011 VA examiner's opinion to be inadequate. The Board is thus left with the two positive private nexus opinions. To the extent that the rationale of these opinions was not detailed, there is no reasons or bases requirements imposed on physicians and the Board must read the opinions as a whole and in the context of the evidence of record. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Reading the opinions in this manner reflects that the private physicians based their conclusions on their examination of the Veteran and his description of the inservice injury and symptoms during the intervening years. Significantly, while these medical opinions relied, in part, on the service history provided by the Veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). Here, the Board finds the multiple lay statements of the Veteran and others regarding continuous symptoms since the documented in service injury to be competent and credible. Consequently, the positive private opinions are entitled to at least some probative weight. The Board is thus left with two adequate and probative positive opinions and no negative opinions. To remand for yet another medical opinion based on the JMR's finding of inadequacy of the sole negative nexus opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The evidence before the Board is thus at least evenly balanced as to whether the current right foot disability is related to the in-service injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right foot disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for right foot disability is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs