Citation Nr: 20054496 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 10-03 561 DATE: August 18, 2020 ORDER Entitlement to service connection for a left foot disorder, claimed as nerve damage, to include as secondary to service-connected left ankle tendonitis, is denied. FINDING OF FACT The Veteran’s left foot disorder, claimed as nerve damage, is not secondary to service-connected left ankle tendonitis and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a left foot disorder, claimed as nerve damage, to include as secondary to service-connected left ankle tendonitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from February 1972 to September 1999. This matter has been remanded on multiple occasions, to include most recently, pursuant to an October 2018 Board Decision. Therein, additional development was directed to include scheduling the Veteran for a new VA examination. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (2014); 38 C.F.R. §§ 3.303 (a), 3.304 (2018). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2018). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2018). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, in determining whether service connection is warranted for a disability, 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 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for a left foot disorder, claimed as nerve damage, to include as secondary to service-connected left ankle tendonitis The Veteran contends that he suffers from a left foot disorder as causally related to active service. He further asserts that his symptoms are secondarily related to his service-connected left ankle tendonitis. As discussed more fully below, the preponderance of the evidence is against his claim. The threshold inquiry before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of left hallux valgus, and the record shows a grant of service connection for left ankle tendonitis, the preponderance of the evidence weighs against finding that the Veteran’s left foot condition is causally related to active service. Further, the record is silent for a current diagnosis of left foot neuropathy at time during the appeal period. Service treatment records show that the Veteran was treated for a Grade III left ankle sprain with possible lateral malleolus fracture in April and May 1986. Thereafter, physical therapy notes described the condition as resolved. In March 1999 the Veteran stepped on a nail and suffered a puncture wound to the left heal. During the physical examination, his heel was observed as swollen and painful to the touch. However, he maintained the ability to bear weight. No permanent injury or residual conditions were reported, thereafter. At separation, a physical examination in April 1999 was silent for any evidence of a left foot abnormality. The Veteran denied any history of chronic left foot problems. X-rays films, dated May 1999, revealed normal findings. Post service-treatment records show sporadic complaints of a left foot condition. In December 2007, the Veteran was evaluated for an onset of left foot pain on or about June 2007. No symptoms of numbness or tingling were indicated. Other symptoms included intermittent pain with walking, standing, or weight-bearing for prolonged periods. After onset, the Veteran’s symptoms persist for 2-3 hours. He acknowledged use of over-the-counter (OTC) medications, to include Tylenol, Ibuprofen, and Bengay patches to treat pain. On physical examination, both feet were observed as normal. There was no evidence of nerve damage during the clinical evaluation. No pain, tenderness, decreased sensation, swelling, heat, or redness was indicated. In June 2009, that the Veteran was evaluated and treated for acute non-traumatic left dorsum foot pain over a 2-week period. A musculoskeletal examination revealed pain and tenderness on palpation. Pain was described as 3 or 4 on a 10-point scale. Aggravating factors include prolonged walking or standing. Rest alleviates his symptoms. No direct history of trauma was reported. No hallux valgus was observed. Limited motion was also reported. Pursuant to a May 2014 Board remand decision, which implemented a Joint Motion for Remand (JMR) issued by U.S. Court of Appeals for Veterans Claims, the Veteran was afforded a VA examination. On VA examination in July 2014, a current diagnosis of chronic left hallux valgus was indicated. No pain or loss of function was observed. The examiner acknowledged a review of the medical evidence which suggested an onset of left foot pain in 2004 or 2005, several years after separation. In fact, a physical examination at separation found no evidence of a left foot abnormality or any related diagnosis in April 1999. Service treatment records show that the Veteran stepped on a nail and was treated for a puncture wound to the left heal in 1999. That condition healed without any complaints of residual symptoms. Presently, the Veteran reports circumferential left ankle pain with flare-ups and dorsum left mid-foot pain at the subtalar area of left ankle. No related symptoms were observed on during the current VA examination. Following the clinical evaluation, the examiner concluded that the Veteran’s left hallux valgus unrelated to in-service treatment for a left foot injury in 1999. His symptoms were also deemed unrelated to the Veteran’s current reports of flare ups of his left ankle tendonitis or foot pain. In May 2015, a subsequent examiner concluded that it is less likely as not (less than 50 percent probability) that the Veteran’s left foot hallux valgus had its onset during active service or otherwise casually related to active service. The opinion also found that it is less likely as not that this Veteran’s left foot hallux valgus was aggravated (permanently worsened) by one or more of his service-connected disabilities, including his left ankle tendonitis and left knee degenerative joint disease with patellofemoral syndrome. Pursuant to an October 2018 Board remand decision, the Veteran was afforded a new VA examination. In November 2019, the examiner listed current diagnoses including chronic left foot hallux valgus deformity and left ankle sprain. No complaints of or loss of function was associated the Veteran’s left foot hallux valgus. Intermittent pain and flare ups were associated with his left ankle sprain, along with a history of dorsum foot pain over subtalar joint of ankle. A physical examination of the left foot revealed normal objective findings. There was no evidence of a nerve condition impacting the left foot. Following the clinical evaluation, the examiner opined that it is less likely as not (less than 50 percent probability) that the Veteran suffers from left foot neuropathy as proximately due to or the result of service-connected left ankle tendonitis. In support of the stated conclusion, the examiner noted that there is no medical evidence of a pathophysiologic relationship between left ankle tendonitis and any related symptomology leading to or causing left foot neuropathy. Both conditions are anatomically different and have different physiological systems. In multiple lay statements dating back to April 2010, the Veteran reported a history of pain, soreness, and swelling in his left foot. He suggested a causal linkage to active service, to include as due to running two to five miles three times per week and marching over 15 miles on a continuous basis throughout his 28-year military career. In making all determinations, the Board has fully revealed all medical evidence and lay assertions of record. It also notes that the Veteran is generally deemed competent to report on his current symptoms and their onset. However, there is no evidence that he possesses the specialized skills and expertise necessary to render complex medical opinions or opine as nature and etiology of his current symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377. Further, mere conclusory or generalized lay assertions that an in- service event or illness caused a current disability are insufficient to establish nexus in the absence of competent medical evidence. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Review of the record indicates that the Veteran was treated for a left ankle strain and puncture wound to the left heel during active service. At separation, no left foot abnormalities were observed, and the Veteran denied any history of chronic left foot conditions. Post-service, complaints of intermittent left foot pain over a 2-week period were reported in June 2009. The reported symptomology occurred almost a decade after separation. In this case, the Veteran has been afforded multiple VA examinations. Although a current diagnosis of left foot hallux valgus was indicated, the condition was deemed unrelated to active service, to include as due to aggravation from the Veteran’s service-connected left knee degenerative joint disease and left ankle tendonitis. At no time, has a current diagnosis of neuropathy of the left foot ever been rendered. In fact, the examiner noted that there is no medical evidence of a pathophysiologic relationship between left ankle tendonitis and any related symptomology leading to or causing left foot neuropathy. While the Board is sympathetic to the Veteran’s subjective belief that his symptoms are causally related to active service, the medical evidence does not support his assertions. In fact, the medical evidence is silent for a current diagnosis of left foot neuropathy. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to service connection for a left foot disorder, claimed as nerve damage, to include as secondary to service-connected left ankle tendonitis must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.