Citation Nr: 1823918 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 12-35 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for right foot bunion. 2. Entitlement to service connection for bilateral hammertoes. 3. Entitlement to service connection for scoliosis, to include as secondary to a service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1978 to August 1998. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from December 2009 and February 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been included in the claims file. In June 2015, this appeal was remanded to the Agency of Original Jurisdiction for further development. Specifically, the appeal was remanded to obtain outstanding records and to obtain a VA opinion regarding the Veteran's right foot bunion, bilateral hammertoes, and scoliosis. Since remand, efforts have been undertaken to obtain outstanding records, and the Veteran underwent the requested VA examinations. Thus, the Board determines that there has been substantial compliance with the June 2015 remand directives, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). FINDINGS OF FACT 1. The Veteran's right foot bunion is etiologically linked to his active service. 2. The Veteran's bilateral hammertoes are etiologically linked to his active service. 3. The Veteran's scoliosis is a congenital defect and was aggravated during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot bunion have been met. 38 U.S.C. §§ 1131, 5107(b) (West 2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for bilateral hammertoes have been met. 38 U.S.C. §§ 1131, 5107(b) (West 2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for scoliosis have been met. 38 U.S.C. §§ 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.303(a)(c) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In light of the favorable decision to grant the Veteran's claims of service connection for right foot bunion, bilateral hammertoes, and scoliosis, any deficiency as to VA's duties to notify and assist, as to these issues, pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is rendered moot. Service Connection Right Bunion The Veteran contends that he has a right foot bunion related to his active service. Specifically, in written statements and at the March 2015 hearing, he has asserted that the shoes he had to wear during service caused his right foot bunion. The Board notes that during the appeal period in a June 2017 rating decision, the Veteran was granted service connection for a right foot bunion effective March 20, 2008. In a subsequent August 2017 Supplemental Statement of the Case, the RO indicated that service connection for a right foot bunion had been denied. Having reviewed the record, the Board finds that service connection for a right foot bunion is warranted. The record is clear that the Veteran has a current diagnosis for a right foot bunion. As to an in-service event, the Veteran has indicated that the bunion is the result of the shoes he had to wear in service as well as jumping from parachutes. The Veteran's service treatment records (STRs) do not reflect a diagnosis or treatment for a right foot bunion. His September 2007 separation examination does indicate a left foot bunion but not a right foot bunion. At the March 2015 hearing, the Veteran explained that he also had the right foot bunion at the time but the examiner did not examine it. Additionally, the Board notes, as indicated in a December 2008 VA record, only partial STRs are available for the Veteran's 20 year period of service. The Veteran did submit a May 1983 emergency care treatment note from 21 Evac Hospital showing a complaint for a right foot bunion. In the June 2015 remand, the Board noted this record and instructed the RO to attempt to obtain any additional personnel and service treatment records. A May 2017 email between the Seattle RO and Appeals Resource Center indicates that no additional records were found. When there is evidence that a veteran's service records have been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In consideration of the benefit of the doubt doctrine and the Veteran's consistent reports that he had a right foot bunion in service and wore stiff-toed shoes, an in-service event is conceded. As to a nexus, the Board notes the April 2017 VA opinion relied on in the June 2017 rating decision. The examiner indicated that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that from a medical standpoint, bunions are bony deformities at the base of the big toe when the big toe is pushed against another toe causing the metatarsal joint to stick out. The examiner stated that it can be caused or made worse by wearing tight or ill-fitting shoes/foot wear, chronic prolonged stress on the foot, foot injuries, certain heredity foot defects, or by medical conditions such as arthritis or diabetes complication. The examiner remarked that in the Veteran's case, he served in the military, which required airborne activities with parachute jumping and wearing military shoes, which can cause major stress on the feet and potential feet injuries. The examiner opined that therefore, it is reasonable to believe that the Veteran's right foot bunion condition is at least as likely as not etiologically related to his military service. As the examiner reviewed the record and considered the Veteran's lay statements and in-service duties, the Board finds the opinion probative. Given the probative evidence, the Board finds that service connection for a right foot bunion is granted. Hammertoes The Veteran contends that he has bilateral hammertoes related to his active service. Specifically, in written statements and at the March 2015 hearing, he has asserted that the shoes he had to wear during service caused his hammertoes as well. Having reviewed the record, the Board finds that service connection for bilateral hammertoes is warranted. The record is clear for a current diagnosis for bilateral hammertoes. As to an in-service event, the Veteran has indicated that his hammertoes are the result of the shoes he had to wear in service as well as jumping from parachutes. The Veteran's STRs do not reflect a diagnosis or treatment for hammertoes. However, as noted, his STRs are not complete. He submitted a July1987 emergency care treatment note from 43rd MASH showing a complaint for hammertoes. In the June 2015 remand, the Board noted this record and instructed the RO to attempt to obtain any additional personnel and service treatment records. As discussed, the May 2017 email between the Seattle RO and Appeals Resource Center indicates that no additional records were found. In consideration of the benefit of the doubt doctrine and the Veteran's consistent reports that he had bilateral hammertoes in service and wore stiff-toed shoes, the Board finds that thre is an in-service event. As to a nexus, the Board is presented with conflicting medical opinions. An April 2017 VA opinion was provided. As the opinion was unclear, the RO sought an addendum opinion. The August 2017 addendum was provided by a different VA examiner as the April 2017 VA examiner was not available. The August 2017 examiner indicated that the file was reviewed. The August 2017 examiner explained that the April 2017 opinion stated that STRs are incomplete but show no evidence of hammertoes in service and that the first post-service records for hammertoes is in February 2009, 10 years after the Veteran retired. The August 2017 examiner explained that the April 2017 examiner therefore opined that there is no chronicity of care. The Board again notes that records have been lost and by no fault of the Veteran. Thus, in consideration of the benefit of the doubt doctrine, the Board does not find the silence of the STRs to be indicative of a lack of complaint, especially in consideration of the Veteran's credible reports that he had bilateral hammertoes in service. In contrast to the April 2017 VA opinion, a May 2017 opinion from a Dr. K.K. from MD Family Practitioner provides a positive nexus opinion. Dr. K.K. stated that the record reflects that the Veteran has been diagnosed with hammer toes on both feet. Dr. K.K. explained that hammer toes feature an abnormal bend in the joints of toes. Dr. K.K. indicated that the known causes of hammer toes include wearing shoes that are too tight, which can crowd toes into a space preventing them from lying flat, or from certain trauma when toes are stubbed, jammed, or broken. Dr. K.K. sated that in this case, the Veteran served in the military, which required airborne activities with parachute jumping and wearing military shoes, which can cause major stress on feet and potential feet injuries. Dr. K.K. indicated that therefore, it is reasonable to believe that the Veteran's bilateral hammer toes condition is at least as likely as not etiologically related to his military service. As Dr. K.K. reviewed the record and considered the Veteran's lay statements and in-service duties, the Board finds the opinion highly probative. Given the most probative evidence, the Board finds that service connection for bilateral hammertoes is granted. Scoliosis The Veteran contends that his scoliosis is related to his active service. At the March 2015 hearing, he specified that his scoliosis is due to parachute jumping and the use of heavy equipment in service. At the outset, the Board notes that certain abnormal curvatures of the spine, including scoliosis, may be the result of a congenital or developmental defect, which are not considered diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2009); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (stating that congenital or developmental defects are not diseases or injuries within the meaning of VA law and regulation). As such, a congenital or developmental defect generally may not be service-connected as a matter of law. Nevertheless, service connection may be granted due to aggravation of a congenital or developmental defect by a superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990) (cited as 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental, or familial origin, unless the defect was subject to a superimposed disease or injury). See also Carpenter v. Brown, 8 Vet. App. 240 (1995); Monroe v. Brown, 4 Vet. App. 513 (1993). First, the Board must determine that the Veteran has a current diagnosis for scoliosis. An August 2009 lumbar spine x-ray located in Puget-Sound VA records indicates an impression of slight scoliosis. However, there are conflicting opinions as to whether the Veteran has a current diagnosis for scoliosis. In the August 2017 addendum, the examiner clarified that the April 2017 VA examiner had indicated there was no objective evidence of scoliosis present on current examination or on the Veteran's September 2014 lumbar spine x-ray. The August 2017 examiner also indicated that the April 2017 report stated that the slight scoliosis noted on the August 2009 lumbar spine x-ray was more likely than not positional in nature and not a true condition as it has not persisted and was not present on current examination. There are also numerous May 2017 opinions from Dr. K.K. regarding various aspects of the Veteran's scoliosis. In these opinions, Dr. K.K. indicates that the Veteran has scoliosis per the record. Dr. K.K. also explained that many patients with scoliosis remain asymptomatic for life. Both Dr. K.K. and the April 2017 VA examiner reviewed the record and applied medical standards. As such, the Board finds that the evidence is in equipoise as to a current diagnosis. Resolving any reasonable doubt in favor of the Veteran, the Board finds that there is a current diagnosis. 38 U.S.C. § 5107(b). As to an in-service incurrence, the Board finds the Veteran's reports of parachute jumping and wearing heavy equipment in service to be credible and probative. His reports have been consistent, and these activities are in line with military duties. Thus, the remaining issue is a nexus. As to a nexus for service connection for scoliosis, as discussed, it is relevant whether the condition is a congenital defect or disease. Having indicated that there is no current diagnosis, the April 2017 examiner did not address whether the condition is congenital or provide a nexus. However, Dr. K.K. indicated that the scoliosis is a congenital defect. In reaching this conclusion, Dr. K.K. explained that scoliosis is a structural spinal deformity characterized by decompensating of the normal vertebral alignment during rapid skeletal growth in an otherwise healthy infant and that it can develop between the ages of 10 to 18 years. He opined that the condition therefore did not develop during the Veteran's service. As Dr. K.K. provided a medical explanation of how and when the condition develops, the Board defers to his medical training. As such, the Board finds the opinion probative and determines that the Veteran's scoliosis is a congenital defect. As the condition is a congenital defect, the question regarding a nexus is whether it was aggravated during service. Dr. K.K. provided a positive opinion that the Veteran's condition was aggravated by service. Dr. K.K. reasoned that patients with significant spinal curvature are at risk of further curve progression and may develop long term problems such as chronic back pain and limited range of motion in spinal column. Dr. K.K. indicated that these can be aggravated when exposed to extra strain on the back from strenuous physical activities, such as sports and demanding military training. Dr. K.K. opined that therefore, the Veteran's scoliosis was at least as likely as not aggravated by his active duties. As Dr. K.K. reviewed the record and considered the Veteran's lay statements and the nature of his military duties, the Board finds the opinion probative. Given the probative evidence, the Board finds that service connection for scoliosis is granted. ORDER Entitlement to service connection for a right foot bunion is granted. Entitlement to service connection for bilateral hammertoes is granted. Entitlement to service connection for scoliosis is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs