Citation Nr: 20007499 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 10-04 191 DATE: January 30, 2020 ORDER Entitlement to service connection for elective amputation of the left fifth toe including as secondary to service-connected disabilities of the left foot is denied. FINDING OF FACT The evidence of record does not establish that the Veteran’s left fifth toe amputation is etiologically related to his active duty service, to include as secondary to his service-connected disabilities of the left foot. CONCLUSION OF LAW The criteria for service connection for elective amputation of the left fifth toe including as secondary to service-connected disabilities of the left foot have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1985 to May 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for additional development in November 2014 and August 2017. As will be discussed further below, the Board finds that there has been substantial compliance with its Remand directives and the matter is now properly before the Board. See Stegall v. West, 11 Vet. App. at 271. Entitlement to service connection for elective amputation of the left fifth toe including as secondary to service-connected disabilities of the left foot. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Under C.F.R. § 3.304(b), the Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. Only such conditions as are record in examination reports are to be considered as noted. A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238 (1994); Hunt v. Derwinski, 1 Vet. App. 292 (1991). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153 ; see also 38 C.F.R. § 3.306 ; Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran contends that his left fifth toe was amputated secondary to his service-connected hallux valgus deformity. In the alternative, the Veteran argues that a corn on the same toe which was noted on entry into service, was aggravated by service making necessary the amputation in 2007. There is no dispute that the Veteran’s left fifth toe was amputated in 2007. There is also no dispute that he is service connected for multiple disabilities of the left foot to include pes planus and a hallux valgus deformity. Therefore, the remaining issue is nexus. Turning to the Veteran’s first theory of entitlement, the Board acknowledges that a corn on the Veteran’s left fifth toe was noted at entry and has considered whether this condition was aggravated by service. The Veteran’s service treatment records contain various complaints of foot pain attributed to a hallux valgus deformity noted on entry. Notably, the entries pertaining to the left fifth toe specifically refer to tylomas, or calluses, under the toe. November 1988 STRs reveal debridement and surgery were discussed as possible treatment options for the tylomas. May 1989 STRs indicate that planned surgery on the left foot would focus primarily on the great toe while surgery on the right foot would treat the great, second and fourth toes. January 1990 STRs note that the left foot surgery would additionally address issues with the left fourth toe. Post-operative follow ups in February 1990 confirm the Veteran’s left foot surgery addressed only the great and fourth toes. There is no evidence to demonstrate an increase in disability in the left fifth toe during active service. While the Board acknowledges the Veteran experienced ongoing foot troubles during service, there is no indication that the Veteran’s left fifth toe corn was worsened. To the contrary, the Board observes the Veteran’s left fifth toe went largely unaddressed during treatment of the Veteran’s myriad foot conditions during service. While the Board acknowledges the Veteran’s lay contentions that his left toe injury was aggravated by service, the Veteran’s post-service treatment records indicate that he next sought treatment for a dislocated left fifth toe in 2006. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In order to determine the etiology of the Veteran’s left fifth toe amputation, the Board remanded the issue for a new VA examination in a November 2014 decision. However, the Veteran did not attend the examination and did not present good cause for not attending or attempt to reschedule. Therefore, there is insufficient evidence to establish that the Veteran’s left fifth toe corn was aggravated by service resulting in its ultimate amputation. In light of the Veteran’s contention that his left fifth toe amputation was related to his service-connected pes planus or hallux valgus deformity, the Board considered whether service connection could be granted on a secondary basis. The Veteran’s post-service VA treatment records reveal the Veteran underwent an osteotomy of the fifth metatarsal in April 2006. May 2006 VA imaging studies note “changes of destruction involving the lateral aspect of the head and proximal shaft of the fifth metatarsal associated with consolidated periosteal reaction along the medial aspect.” The physician noted that while this appearance could be explained by post-surgical changes, they could also be caused by an aggressive infection. In May 2006, imaging studies revealed no fracture or dislocation. In April 2007, the Veteran requested left fifth toe amputation. In August 2007, imaging testing revealed the toe was dislocated and in November 2007 the Veteran again requested surgery to stop pain in shoes and occasional breakdown. The Veteran’s left fifth toe was amputated in December 2007. There is no medical evidence of record linking the amputation to the Veteran’s service-connected disabilities of the left foot. As noted, the Veteran did not attend the examination to determine the etiology of his left foot amputation. Although the Veteran is competent to identify observable symptoms such as pain and their onset, he is not competent to determine the etiology of his left foot conditions. These questions are complicated and require greater knowledge of medicine and science than a lay person such as the Veteran possesses. Accordingly, his statements of nexus are of no probative value. Additionally, the Board cannot make medical determinations, to include whether an aggressive infection caused changes in the Veteran’s left fifth toe or whether it is a symptom of another diagnosed disability. The Board may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, the record contains no competent or probative evidence linking the Veteran’s amputation of the left fifth toe to either service or his service-connected foot conditions. For the foregoing reasons, the Board finds that the preponderance of the evidence does not support the Veteran’s claim for service connection for elective amputation of the left fifth toe. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.