Citation Nr: 18159395 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-59 969 DATE: December 19, 2018 ORDER Entitlement to service connection for left foot disability, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis and capsulitis, not otherwise specified (NOS), of the 2nd metatarsophalangeal joint, is denied. Entitlement to service connection for right foot disability, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis, capsulitis, NOS, of the 2nd metatarsophalangeal joint, hammertoe syndrome, Morton’s neuroma of the 2nd interspace, arthritic-osteophytic spurring of the 2nd metatarsal, and osteoarthritis, is denied REMANDED Entitlement to service connection for skin disability, to include contact dermatitis, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the appellant has a left foot disability, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis and capsulitis, NOS, of the 2nd metatarsophalangeal joint, due to a disease or injury in service. 2. The preponderance of the evidence is against finding that the appellant has a right foot disability, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis, capsulitis, NOS, of the 2nd metatarsophalangeal joint, hammertoe syndrome, Morton’s neuroma of the 2nd interspace, arthritic-osteophytic spurring of the 2nd metatarsal, and osteoarthritis, which manifested to a compensable degree within the applicable presumptive period, demonstrated continuity of symptomatology or is otherwise etiologically related to disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis and capsulitis, NOS, of the 2nd metatarsophalangeal joint, are not met. 38 U.S.C. §§ 101, 1131, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for service connection for a right foot disability, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis, capsulitis, NOS, of the 2nd metatarsophalangeal joint, hammertoe syndrome, Morton’s neuroma of the 2nd interspace, arthritic-osteophytic spurring of the 2nd metatarsal, and osteoarthritis, are not met. 38 U.S.C. §§ 101, 1101, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had active service from January 1995 to June 1995, with additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) from August 1994 to July 2003 in the U.S. Army Reserves. The appellant’s claim for contact dermatitis has been recharacterized broadly as a claim for a skin disability, however diagnosed. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Similarly, the appellant’s claims for bilateral hallux valgus and bilateral plantar fasciitis have been recharacterized broadly as for a foot disability, however diagnosed, although bifurcated as left and right foot disabilities. Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion). In a November 2016 VA Form 9, substantive appeal, which perfected the appellant’s appeal herein, the appellant indicated both that she desired a video conference hearing before a Veterans Law Judge and did not desire a hearing. However, in a January 2017 statement, the appellant withdrew her hearing request. Thus, the hearing request is deemed withdrawn and the Board may proceed with appellate review. 38 C.F.R. § 20.704 (e). Since the most recent October 2016 statement of the case, issued for the appeal herein, additional evidence was associated with the record. The record does not reflect the appellant submitted a waiver of review by the Agency of Original Jurisdiction (AOJ) for this evidence. See 38 C.F.R. § 20.1304. However, if new evidence is submitted by the appellant with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the appellant explicitly requests AOJ consideration. Here, although the appellant’s substantive appeal was filed after February 2, 2013, the additional evidence included medical evidence developed by VA. However, as this evidence is duplicative and/or not relevant to the claims decided herein, a remand for the additional evidence to be considered by the AOJ is not warranted. Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Under VA regulations, in addition to a disability incurred in or aggravated by active duty, service connection may be granted when the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty during a period of ACDUTRA, and when the individual became disabled or died from an injury incurred or aggravated in line of duty during inactive duty training (INACDUTRA), to include when a cardiac arrest or a cerebrovascular accident occurs during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). To establish service connection on a direct incurrence basis, the appellant must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, will be presumed related to service if they were noted as chronic in service or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). 1. Entitlement to service connection for a left foot disability, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis and capsulitis, not otherwise specified (NOS), of the 2nd metatarsophalangeal joint The appellant asserts she has left foot disability due to her military service. Specifically, in her January 2016 notice of disagreement (NOD) and in other statements, she linked her foot disability due to wearing boots that were too small during basic training, which she believes led to bleeding and numbness. She also described instances during which her boots and feet were saturated with water. The initial question for the Board is whether the appellant has a current left foot disability. In this regard, various diagnoses of the left foot are of record, to include a February 2015 medical record which noted, in part, a diagnosis of bunion of the left foot and a provisional diagnosis of tarsal tunnel syndrome. A March 2015 medical record described a neurological and sensory evaluation was normal as to the left side except for a diminished 5th toe but endorsed diagnoses of plantar fasciitis and capsulitis, not otherwise specified (NOS), of the 2nd metatarsophalangeal joint, although the specific foot was not identified. An April 2015 medical record diagnosed capsulitis, NOS, of the bilateral 2nd metatarsophalangeal joint, hallux valgus, and hammer/mallet toe. Additionally, a March 2016 medical record noted bunions, calluses, and that the appellant was developing some symptoms of tarsal tunnel syndrome. A June 2016 medical record noted hammer toe of the left foot but another record of the same date reported chronic pain in the right foot and toes status post bunionectomy and surgical repair for traumatic injury to the 2nd digit. Upon examination, an October 2015 foot conditions disability benefits questionnaire diagnosed hallux valgus and plantar fasciitis of the left foot. Thus, the appellant is acknowledged to have current disability of the left foot, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis and capsulitis, NOS, of the 2nd metatarsophalangeal joint. As to in-service event or injury, a March 18, 1995 service treatment record documented the appellant complained of blisters on both feet since March 13th and that she reported a history of nerve damage in her right toes. The record provided an assessment/diagnosis of blister of the bilateral feet and did not endorse a diagnosis of nerve damage. Similarly, a March 22, 1995 service treatment record again noted a complaint of blisters on the right and left feet and provided an assessment of denuded skin secondary to friction. As to a nexus between current disability and an in-service event or injury, the appellant’s post service medical records do not reflect a diagnosis related to the left foot until many years after separation from service or complaints thereof. For instance, a November 2008 medical record documented the appellant’s complaint of right fifth toe pain for about a week and that she denied any trauma. Thereafter, an October 2009 medical record noted the appellant reported she injured her right foot when she dropped an object on it one week ago. Similarly, a May 2010 medical record documented the appellant reported she injured her right foot in October 2009 by dropping an exercise bike on her foot and that she further explained that her right foot never really healed and she reinjured it over the weekend when she dropped trampoline parts on the same foot. However, notably, in the November 2008 medical record the appellant did not report any left foot problems and denied any foot related trauma, except for the right foot. Further, the October 2009 and May 2010 medical records, which detailed post-service right foot injuries, did not document the existence of any left foot disability, or complaints thereof. Additionally, while an October 2013 medical record described, in pertinent part, that appellant had long standing foot pain, the duration of the pain was not characterized, and furthermore, the same medical record also noted that sometimes with exercise the appellant got a little transient numbness in the third, fourth, and fifth digit, which is not reflective of numbness as a long standing symptom. While the appellant is competent to report having experienced symptoms, to include pain, blistering, bleeding, and numbness, since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of her current left foot disability, variously diagnosed. The issue is medically complex and it requires specialized medical knowledge she has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, as discussed above, such complains are not evidenced by the post-service medical evidence of record until many years after separation from service. Additionally, while medical records do reflect the appellant’s reports of foot problems since service, such as a March 2016 medical record which stated the appellant had chronic foot pain dating back her time on active duty when she developed immersion and developed a localized nerve palsy from tight combat boots, such reports appear to be documentation of the appellant’s own report rather than an independent finding. Furthermore, such is contrary to the contemporaneous clinical evidence of record, as discussed above. In her November 2016 substantive appeal, the appellant reported, in part, that she was diagnosed with nerve damage to her toes on March 18, 1995, which was reconfirmed on March 22, 1995 and that her records dated one year after separation from the Army were lost. However, even if the appellant’s records dated one year after separation were lost, subsequent medical records reflect her reports of foot problems and related treatment, and as discussed above, did not reflect a left foot disability onset during active service. Moreover, contrary to the appellant’s assertion, while a March 18, 1995 service treatment record documented the appellant complained of blisters on both feet since March 13th and that she reported a history of nerve damage in her right toes, the record provided an assessment/diagnosis of blister of the bilateral feet and did not endorse a diagnosis of nerve damage. Similarly, a March 22, 1995 service treatment record again noted a complaint of blisters on the right and left feet and provided an assessment of denuded skin secondary to friction, but did not endorse a diagnosis of nerve damage. Moreover, the October 2015 VA examiner opined that the appellant’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of such, the October 2015 VA examiner noted there were no medical records based on plantar fasciitis or hallux valgus while on active duty. Notably, the October 2015 VA examiner documented the appellant’s report that the condition began during basic training from wearing boots that were too small. The October 2015 examiner’s opinion is probative, because it is based on review of the record and an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, while October 2015 did not address all diagnoses of record, the same rationale is applicable, namely there was no medical record of a chronic left foot disability during active service. Thus, the October 2015 opinion is entitled to substantial probative weight. The Board concludes that, while the appellant has current disability of the left foot, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis and capsulitis, NOS, of the 2nd metatarsophalangeal joint, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Thus, based on the reasons and bases discussed, the Board has considered the benefit of the doubt doctrine, but does not find that the evidence is of such approximate balance as to warrant its application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, as the preponderance of the evidence is against the claim, the appeal is denied. 2. Entitlement to service connection for a right foot disability, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis, capsulitis, NOS, of the 2nd metatarsophalangeal joint, hammertoe syndrome, Morton’s neuroma of the 2nd interspace, arthritic-osteophytic spurring of the 2nd metatarsal, and osteoarthritis The appellant asserts that she has right foot disability due to her military service. Specifically, in her January 2016 NOD and in other statements, she linked her foot disability due to wearing boots that were too small during basic training, which she believes led to bleeding and numbness. She also described instances during which her boots and feet were saturated with water. The initial question for the Board is whether the appellant has a current right foot disability. In this regard, various diagnoses of the right foot are of record, to include a February 2015 medical record which noted, in part, a diagnosis of bunion of the right foot and a provisional diagnosis of tarsal tunnel syndrome. A March 2015 medical record described a neurological and sensory evaluation was normal as to the right side except for a diminished 5th toe but endorsed diagnoses of plantar fasciitis and capsulitis, not otherwise specified (NOS), of the 2nd metatarsophalangeal joint, although the specific foot was not identified. An April 2015 medical record diagnosed capsulitis, NOS, of the bilateral 2nd metatarsophalangeal joint, hallux valgus, and hammer/mallet toe. A May 2015 medical record provided postoperative diagnoses of hallux valgus with painful bunion deformity of the right foot, hammertoe syndrome of the 2nd toe of the right foot, Morton’s neuroma of the 2nd interspace of the right foot, chronic capsulitis of the 2nd metatarsophalangeal joint secondary to an elongated metatarsal of the right foot. A September 2015 medical record provided postoperative diagnoses of 2nd metatarsal phalangeal joint dislocation with tear of plantar plate and tear of flexor longus tendon of the right foot. A July 2016 medical record provided postoperative diagnoses of hammertoe deformity 3rd and 4th toes of the right foot and contracted 3rd and 4th metatarsophalangeal joints. Additionally, a March 2016 medical record noted bunions, calluses, and that the appellant was developing some symptoms of tarsal tunnel syndrome and another March 2016 medical record noted hammer toe, acquired, of the right foot. A May 2016 record noted the appellant had surgery in March 2016 for right 4th and 5th toe arthroplasty with k-wire fixation. A June 2016 medical record reported chronic pain in the right foot and toes status post bunionectomy and surgical repair for traumatic injury to the 2nd digit. A December 2016 medical record provided postoperative diagnoses of hammertoe deformity, 2nd right toe, severely arthritic-osteophytic spurring of the 2nd metatarsal, neuroma, osteoarthritis and intractable pain. Upon examination, an October 2015 foot conditions disability benefits questionnaire diagnosed hallux valgus and plantar fasciitis of the right foot and also noted a right foot bunionectomy in 2015. Thus, the appellant is acknowledged to have current disability of the right foot, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis, capsulitis, NOS, of the 2nd metatarsophalangeal joint, hammertoe syndrome, Morton’s neuroma of the 2nd interspace, arthritic-osteophytic spurring of the 2nd metatarsal, and osteoarthritis. As to an in-service event or injury, a March 18, 1995 service treatment record documented the appellant complained of blisters on both feet since March 13th and that she reported a history of nerve damage in her right toes. The record provided an assessment/diagnosis of blister of the bilateral feet and did not endorse a diagnosis of nerve damage. Similarly, a March 22, 1995 service treatment record again noted a complaint of blisters on the right and left feet and provided an assessment of denuded skin second to friction. As to a nexus between current disability and an in-service event or injury, the appellant’s post service medical records do not reflect a diagnosis related to the right foot until many years after separation from service or complaints thereof. For instance, as described above, a November 2008 medical record documented the appellant’s complaint of right fifth toe pain for about a week and that she denied any trauma that she was aware of. Thereafter, an October 2009 medical record noted the appellant reported she injured her right foot when she dropped an object on it one week ago. Similarly, a May 2010 medical record documented the appellant reported she injured her right foot in October 2009 by dropping an exercise bike on her foot, and that she further explained that her right foot never really healed and she reinjured it over the weekend when she dropped trampoline parts on the same foot. Notably, the November 2008 medical record documented the appellant reported a right foot problem for one week rather than since her active service and denied knowledge of any right foot related trauma. Further, the October 2009 and May 2010 medical records, which detailed post-service right foot injuries, also did not report the existence of any right foot problems prior to the 2009 injury. Additionally, while an October 2013 medical record described, in pertinent part, that the appellant had long standing foot pain, the duration of the pain was not characterized, and furthermore, the same medical record also noted that sometimes with exercise the appellant got a little transient numbness in the third, fourth, and fifth digit, which is not reflective of numbness as a long standing symptom. While the appellant has a right foot diagnosis of osteoarthritis, which is a chronic disease under 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309 (a), it was not shown to have been chronic in service, or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. In this regard, such was diagnosed in a December 2016 medical record, which was many years after the appellant’s active service. Further, November 2008 and October 2009 radiology reports provided impressions of mild hallux valgus of the metatarsal head of the right great toe but also specifically found there was no acute abnormality in the right foot. Further, as discussed above, October 2009 and May 2010 medical records detailed post-service intercurrent right foot injuries. While the appellant is competent to report having experienced symptoms, to include pain, blistering, bleeding, and numbness, since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of her current right foot disability, variously diagnosed. The issue is medically complex and it requires specialized medical knowledge she has not been shown to possess. Jandreau, 492 F.3d at 1377 n.4. Further, as discussed above, such complains are not evidenced by the post-service medical evidence of record until many years after her active service. Additionally, while medical records do reflect the appellant’s reports of foot problems since service, such as a March 2016 medical record which stated the appellant had chronic foot pain dating back her time on active duty when she developed immersion and developed a localized nerve palsy from tight combat boots, such appears to be the appellant’s own report rather than an independent finding. Additionally, such reports are contrary to the contemporaneous clinical evidence of record, as discussed above. The Board notes that, in her November 2016 substantive appeal, the appellant reported, in part, that she was diagnosed with nerve damage to her toes on March 18, 1995, which was reconfirmed on March 22, 1995 and that her records dated one year after separation from the Army were lost. However, even if the appellant’s records dated one year after separation were lost, subsequent medical records reflect her reports of foot problems and related treatment, and as discussed above, did not reflect a right foot disability onset during active service. Moreover, contrary to the appellant’s assertion, while a March 18, 1995 service treatment record documented the appellant complained of blisters on both feet since March 13th and that she reported a history of nerve damage in her right toes, the record provided an assessment/diagnosis of blister of the bilateral feet and did not endorse a diagnosis of nerve damage. Similarly, a March 22, 1995 service treatment record again noted a complaint of blisters on the right and left feet and provided an assessment of denuded skin second to friction, but did not endorse a diagnosis of nerve damage. Moreover, the October 2015 VA examiner opined that the appellant’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of such, the October 2015 VA examiner noted there were no medical records based on plantar fasciitis or hallux valgus while on active duty. Notably, the October 2015 VA examiner documented the appellant’s report that the condition began during basic training from wearing boots that were too small. The October 2015 examiner’s opinion is probative, because it is based on review of the record and an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App.at 304. Further, while the October 2015 opinion did not address all diagnoses of record, the same rationale is applicable, namely there was no medical record of a chronic right foot disability during service. Thus, the October 2015 opinion is entitled to substantial probative weight. The Board concludes that, while the appellant has current disability of the right foot, variously diagnosed, to include bunions, calluses, hallux valgus, plantar fasciitis, capsulitis, NOS, of the 2nd metatarsophalangeal joint, hammertoe syndrome, Morton’s neuroma of the 2nd interspace, arthritic-osteophytic spurring 2nd metatarsal, and osteoarthritis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Thus, based on the reasons and bases discussed, the Board has considered the benefit of the doubt doctrine, but does not find that the evidence is of such approximate balance as to warrant its application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Accordingly, as the preponderance of the evidence is against the claim, the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for a skin disability, to include contact dermatitis, is remanded. The October 2015 skin diseases disability benefits questionnaire did not endorse a diagnosis of contact dermatitis, and thus did not provide a nexus opinion; however, it was noted that appellant used topical corticosteroids for a rash on her feet within the past 12 months. Further, a January 2016 medical record endorsed diagnoses of dermatitis of the left chin/check, seborrheic keratosis of the anterior neck, and melanocytic nevi of the left jaw and a March 2016 medical record noted a hyperkeratotic lesion of the right 4th digit. The Board cannot make a fully-informed decision because no VA examiner has opined whether the appellant has a skin disability diagnosed proximate to, or during the pendency of the claim, which is at least as likely as not related to an in-service injury, event, or disease. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not the appellant has a skin disability, diagnosed during or proximate to the claim, which is related to an in-service injury, event, or disease, to include, but not limited to, an October 2015 skin diseases disability benefits questionnaire note of a rash on her feet within the past 12 months, a January 2016 medical record endorsed diagnoses of dermatitis of the left chin/check, seborrheic keratosis of the anterior neck, and melanocytic nevi of the left jaw, and a March 2016 medical record note of a hyperkeratotic lesion of the right 4th digit,. Rationale must be provided for the opinion(s) proffered. 2. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the appellant and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel