Citation Nr: 18140043 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 13-30 873 DATE: October 2, 2018 ORDER Entitlement to service connection for right foot hallux valgus, traumatic arthropathy, Morton's neuralgia, metatarsalgia, and degenerative osteoarthritis is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s right foot hallux valgus, traumatic arthropathy, Morton’s neuralgia, metatarsalgia, and degenerative osteoarthritis began during active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right foot hallux valgus, traumatic arthropathy, Morton’s neuralgia, metatarsalgia, and degenerative osteoarthritis are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1970 to September 1974. This matter initially came before the Board of Veterans’ Appeals (Board) from January 2011 and October 2012 rating decisions. The Veteran testified before the undersigned Veterans Law Judge at a May 2017 videoconference hearing and a transcript of the hearing has been associated with his claims file. In August 2017, the Board remanded this matter for further development. As explained in the August 2017 remand, although the Veteran did not submit a timely notice of disagreement (NOD) with the January 2011 rating decision, new and material evidence pertinent to the claim of service connection for right foot disability was associated with the claims file within the one-year period following the issuance of the January 2011 decision. Hence, that decision did not become final. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The claim was readjudicated in the October 2012 rating decision and the Veteran submitted a timely NOD with that decision. Moreover, as for characterization of the issue on appeal, the Board explained in the August 2017 remand that the Veteran’s claim was mistakenly adjudicated by the agency of original jurisdiction (AOJ) as a claim of service connection for left foot disability. In light of the evidence of a right foot fracture in service and the Veteran’s explanation that he intended to seek service connection for right foot disability, the Board recharacterized the issue on appeal as a claim of service connection for right foot disability. Entitlement to service connection for right foot hallux valgus, traumatic arthropathy, Morton's neuralgia, metatarsalgia, and degenerative osteoarthritis Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has current right foot disability which had its onset in service when he incurred a right foot injury. The Board concludes, for the following reasons, that the Veteran has current diagnoses of right foot hallux valgus, traumatic arthropathy, Morton’s neuralgia, metatarsalgia, and degenerative osteoarthritis, and that the evidence is at least evenly balanced as to whether these disabilities began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). An April 2012 VA x-ray report, a July 2017 VA podiatry consultation note, and the report of an October 2017 VA foot examination show the Veteran has current diagnoses of right foot hallux valgus, traumatic arthropathy, Morton’s neuralgia, metatarsalgia, and degenerative osteoarthritis. There is also evidence of right foot injury in service and evidence of continuous right foot symptoms in the years since service which indicates that the current right foot hallux valgus, traumatic arthropathy, Morton’s neuralgia, metatarsalgia, and degenerative osteoarthritis were incurred in service. In this regard, the Veteran’s service treatment records indicate that he injured his right foot in August 1974 when a bell fell on his foot. Examination revealed that his 3rd toe was discolored and tender and that there was a small hairline fracture at the distal end of the 3rd toe. The Veteran was diagnosed as having a right foot contusion. Moreover, the Veteran’s post-service medical records and lay statements indicate that his right foot symptoms (including pain) have continued in the years since service. He explained during the May 2017 hearing that he sought treatment for his foot shortly following his separation from service, but that such treatment records are unavailable and that he was told at the time of such treatment that there was not much that could be done for his foot symptoms. He also indicated that he did not file an earlier claim of service connection because he was unaware of the process for seeking VA disability compensation. The physician who conducted a November 2010 VA foot examination opined that it was not likely (“less likely as not”) that the Veteran’s right foot symptoms were related to injuries that began in service. He reasoned that the Veteran had an uncomplicated toe fracture in service with good healing. His current right foot symptoms consisting of cramping were an unlikely residual symptom from a simple toe fracture. Examination of the foot during the November 2010 examination revealed a mild bunion, but it was an otherwise unremarkable foot examination. It was likely (“as likely as not”) that the Veteran’s right foot symptoms had no relationship to his remote toe fracture. Rather, they were due to another unknown etiology. The physician who conducted the October 2017 VA foot examination opined that the Veteran’s foot disability was not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. The rationale was that the October 2017 examination reflected findings consistent with Morton’s neuroma (tenderness between the metatarsal heads with positive squeeze test) without physical finding of the right middle toe. The August 1974 service treatment record documented a right third toe injury from a bell falling on the Veteran’s steel toed boot. There apparently was an x-ray taken, but there was no x-ray report in his records. There was a note with a drawing of the distal toe with a linear line at the distal toe, and not involving the joint. Diagnoses of contusion and possible hairline fracture were provided. There were no other records of toe pain in service. The history of the Veteran’s hairline fracture not involving the joint of the distal toe was that it was healing without sequelae. If the joint was not involved in the fracture, it was not likely (“less likely than not”) that arthritis would develop. Given this fact, and the greater than 30-year interval between the Veteran’s injury and his current complaints, it was not likely (“less likely than not”) that the August 1974 injury contributed to any right foot arthritis. The November 2010 and October 2017 opinions are of limited probative value because they are at least partially based on a finding that the Veteran’s right foot injury in service resolved without any further complications. The opinions do not reflect consideration of the Veteran’s reports of continuous foot symptoms in the years since his foot injury in service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Moreover, the November 2010 opinion only identifies the Veteran’s right foot disability as involving a mild bunion, and the examiner did not have the opportunity to consider and comment upon the later diagnosed hallux valgus, traumatic arthropathy, Morton’s neuralgia, metatarsalgia, and degenerative osteoarthritis. The Veteran is competent to report continuous right foot symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is nothing to explicitly contradict his reports and they are consistent with the evidence of record. Thus, the Board finds that the reports of continuous right foot symptoms in the years since service are credible. In sum, the evidence reflects that the Veteran experienced a right foot injury in service and that there have been continuous right foot symptoms in the years since service. He has also been diagnosed as having current right foot hallux valgus, traumatic arthropathy, Morton’s neuralgia, metatarsalgia, and degenerative osteoarthritis. There is no probative medical opinion contrary to a conclusion that the current right foot disabilities had their onset in service. Hence, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current right foot hallux valgus, traumatic arthropathy, Morton’s neuralgia, metatarsalgia, and degenerative osteoarthritis had their onset in service. 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 the currently diagnosed right foot hallux valgus, traumatic arthropathy, Morton’s neuralgia, metatarsalgia, and degenerative osteoarthritis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel