Citation Nr: 18155515 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-40 469 DATE: December 4, 2018 ORDER 1. Entitlement to service connection for a left foot disability, to include hallux valgus, as secondary to service-connected diabetes mellitus type II is denied. 2. Entitlement to service connection for a right foot disability, to include hallux valgus, as secondary to service-connected diabetes mellitus type II is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s a left foot disability, to include hallux valgus, is proximately due to or aggravated by his service-connected diabetes mellitus type II. 2. The preponderance of the evidence is against finding that the Veteran’s right foot disability, to include hallux valgus, is proximately due to or aggravated by his service-connected diabetes mellitus type II. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability, to include hallux valgus, as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for service connection for a right foot disability, as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from February 1966 to February 1969. This case comes before the Board of Veterans’ Appeals (Board) from a 2013 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in Waco, Texas. Service Connection for bilateral foot disability secondary to diabetes mellitus type II The Veteran contends that he is entitled to service connection for his left and right foot disabilities, to include hallux valgus, as being secondary to his service-connected diabetes mellitus type II. Initially, the Board notes that it appears that the Veteran’s claim for service connection for his right and left feet relates to peripheral neuropathy of the lower extremities. For example, in his May 2014 notice of disagreement, he wrote he was disagreeing with the denial of “[s]ervice connection for [right] foot/leg cond[ition] due to [service-connected] diabetes (neuropathy).” The Veteran wrote the same statement for the left foot. He described having pain and numbness in his lower extremities, which he wrote, “includes my feet.” He added that he felt this burning pain and numbness were caused by diabetic neuropathy. In a June 2018 rating decision, the RO granted service connection for peripheral neuropathy of the right and left lower extremities. Thus, it would appear that service connection has been granted for the disabilities for which the Veteran was seeking service connection. Regardless, the Veteran has perfected an appeal for service connection for a bilateral foot disability, as being secondary to service-connected diabetes mellitus. Thus, the Board will decide these claims. On this note, the Board adds that from the Veteran’s submissions, he is not alleging that he incurred a bilateral foot disability in service, but rather that it is secondary to the service-connected diabetes mellitus. Therefore, the Board is limiting its discussion to secondary service connection. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on June 1, 2018. However, the appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the grant of service connection for a bilateral foot disability secondary to diabetes mellitus type II. The reasons follow. Because the facts for the right and left and foot disabilities are essentially the same, the Board will analyze the disabilities together. Concerning a current disability, in an April 2013 examination report, the VA examiner diagnosed the Veteran with bilateral hallux valgus. Thus, there is evidence of a current disability. The Veteran is service connected for diabetes mellitus, and thus he has evidence of a service-connected disability. The remaining issue to consider is whether bilateral hallux valgus is caused or aggravated by the service-connected diabetes mellitus. In a September 2013 addendum to the April 2013 VA examination report, the examiner concluded that the Veteran’s bilateral hallux valgus was less likely as not (less than 50 percent probability) proximately due to or aggravated by the Veteran’s diabetes mellitus type II. The examiner’s rationale was that hallux valgus involves the first metatarsal phalangeal joint of the foot and is not caused or aggravated by diabetes mellitus. The Board finds this opinion to be probative because it is based on medical expertise, the exam was conducted in person, and the examiner addressed the disability at issue and explained why there is not a relationship between the Veteran’s bilateral hallux valgus and the service-connected diabetes mellitus. The Veteran has not submitted evidence of a relationship between the diagnosis of bilateral hallux valgus and diabetes mellitus. Thus, the only competent evidence addressing whether there is a relationship between hallux valgus and diabetes mellitus is the September 2013 negative nexus opinion. The Board acknowledges the Veteran’s 2016 statements concerning entitlement to service connection for a bilateral foot disability, which, again, are about peripheral neuropathy. As already noted above, the Veteran is currently service connected for diabetic neuropathy in the lower extremities. For all the reasons laid out above, the Board finds that the evidence preponderates against the Veteran’s claims for service connection for a bilateral foot disability, to include hallux valgus, as being secondary to diabetes mellitus type II. Since the evidence preponderates against the claim, the benefit of the doubt doctrine is inapplicable, and the claim is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. H. Vasil, Associate Counsel