Citation Nr: A20007342 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 10-32 489 DATE: April 30, 2020 ORDER Entitlement to service connection for a bilateral foot disability, to include osteoarthritis, pes planus, or any skin condition of the bilateral feet (collectively referred to as a “bilateral foot disability”), is denied. FINDING OF FACT The evidence of record is against finding that the Veteran’s bilateral foot disability occurred in, or is the result of, his period of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to May 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. As will be explained below, this claim has been the subject of multiple Board remands. At the time the most recent Supplemental Statement of the Case (SSOC) was issued, however, the Veteran filed a VA Form 10182, checking off the box that he wished to opt into the modernized system of review by withdrawing out of the legacy system of appeals the issue herein. Thus, the Veteran’s appeal now is reviewed under the modernized system. See 38 C.F.R. § 19.2(d). The Veteran selected the direct-review method of appeal. Thus, only the evidence available at the time of the January 31, 2020, SSOC, and no other, will be considered. See 38 C.F.R. §§ 20.202(b)(1), (c)(1), 20.301. The Veteran also listed that he was appealing the issue of service connection for memory loss, but that issue was not contained on the January 2020 SSOC and, therefore, will be addressed by a separate, future decision. A Board hearing was conducted via videoconference with the RO in Waco, Texas. A transcript of this hearing is contained within the electronic claims file. See January 24, 2012, Hearing Transcript (Tr.). The Veteran testified that he had an infection of his toe in service attributable to his persistent wearing of combat boots and an inability to change his socks. See id. at 9–11. The Board originally remanded this claim to obtain outstanding VA and private treatment records and to provide the Veteran with an initial examination for his bilateral feet, to include assessing whether the Veteran had any current skin condition of his feet. See February 3, 2014, Board Decision (Decision I). A March 2014 VA examiner diagnosed the Veteran with left great toe surgery for ingrown toenail during service but noted that no records were reviewed. A subsequent August 2014 opinion noted that records were reviewed, and that service treatment records (STRs) indicated left great toe surgery for ingrown toenail, which was related to military service. In January 2015, the Board again remanded this claim for clarification to determine whether the Veteran currently suffered from any condition of the bilateral feet. VA was instructed to provide the Veteran with another examination and to determine the nature and etiology of any bilateral foot condition. See January 26, 2015, Board Decision (Decision II). An April 2015 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The report indicates that the Veteran previously had an ingrown toenail of the left great tow, bilateral foot numbness, mild degenerative joint disease (DJD) of the bilateral first metatarsal phalange joints, as well as tiny calcaneal spurs, and bilateral pes planus. The provided opinion was as follows: The Veteran has mild [osteoarthritis] of his left great toe, as well of his right great toe as verified on x-rays today, as well as bilateral mild pes planus. In service he had local surgery for an ingrown toenail; this problem is completely resolved, today’s left foot exam reveals a completely normal great toenail. His claims for ongoing left foot pain are not substantiated by the medical records at all. Separation exam from service in 1984 revealed no foot complaints. Vesting exam in 2010 revealed no foot complaints either. The current complaint of bilateral foot numbness is more than likely related to his lower back [DJD] with [lower extremity] radiculopathy. Upon return to the Board, this claim again was remanded because the VA examiner failed to address whether the Veteran’s current foot disabilities of osteoarthritis of the bilateral big toes and pes planus are residuals of the of the Veteran’s in-service local surgery for a left ingrown toenail. Thus, remand was required for an addendum opinion. See July 20, 2015, Board Decision (Decision III). In September 2015, the same VA examiner that provided the above opinion stated that the Veteran’s osteoarthritis and pes planus are unrelated to his military service. The provided rationale was that “STRs only contain documentation of a left great toe ingrown nail and nothing else. This has nothing whatsoever to do with [osteoarthritis] or pes planus of the feet.” In October 2015, the Veteran was notified that the Veterans Law Judge (VLJ) that conducted the hearing and authored Decisions I–III no longer was employed with the Board. The Veteran was afforded an opportunity to have another hearing before a different VLJ, but he declined, in his December 2015 reply correspondence, that opportunity. Thus, the Board is satisfied that it has complied with the procedural requirements for conducting the Veteran’s hearing. See 38 C.F.R. § 20.604. In February 2016, the Board noted that VA still was required to obtain treatment records from a private physician identified by the Veteran at the time of his hearing (which the Veteran later confirmed no longer existed). Furthermore, it noted that VA substantially had failed to comply with the remand directives in Decision I, which stated that VA was to assess whether the Veteran had any current skin condition of his bilateral feet. Thus, remand was required to obtain current VA records, the outstanding private treatment records, and to provide the Veteran with an examination of this skin of his bilateral feet. See February 8, 2016, Board Decision (Decision IV). A February 2016 VA examination report noted physical examination of the Veteran’s skin and review of the claims file and recited the Veteran’s complaints and medical history. The examiner noted that the Veteran has no current skin condition related to military service but that the Veteran reports having a left ingrown toenail monthly cut by a pedicurist; at the time of examination, the toe appeared normal. When the claim was returned to the Board, it found that VA substantially had not complied with Decision III’s remand directives. Specifically, VA failed to obtain a medical opinion that addressed whether the Veteran’s current bilateral foot conditions (osteoarthritis and pes planus) were caused by, or etiologically related to, active service, to include the in-service surgery for left ingrown toenail (and any altered gait resulting from that surgery). See May 2, 2017, Board Decision (Decision V). A May 2017 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The examiner provided three separate opinions: It is at least as likely as not that the [V]eteran’s left ingrown toenail in Nov 1983 was caused by, aggravated by and the result of active military service. Rationale: The [V]eteran’s left ingrown toenail began while in active service and STRs indicate treatment for the condition. The [V]eteran gives a medically credible history of the condition. The [V]eteran sought no further follow up after the 10 day profile, and 5 months later on his separation physical indicated no residual of the [cryptococcosis] or its remedial surgery were still present. Remarks: No residuals of the above noted ingrown toenail is found on today’s examination. It is less likely as not that the current pes planus was caused by, aggravated by or the result of active military service. Rationale: STRs indicate no treatment for the condition while in active military service. There was no pes planus noted on either the entry or separation physicals in 1980 and 1984. The [V]eteran indicates on his separation physical that he has no foot conditions. Therefore it is less likely as not that the current pes planus was caused by or aggravated by active military service. It is less likely as not that the current pes planus was caused by, aggravated by or the result of the [V]eteran’s SC left ingrown toenail while in active military service. Rationale: STRs indicate no pes planus while in active military service. I know of no medical authority or peer reviewed medical literature which supports the contention that a dermatologic condition, such as an ingrown toenail, can be causative to or aggravate the development of pes planus. The [V]eteran’s antalgic gait following his nail removal would normally last a day or two, and his failure to report to follow up indicates that his gait was normal by the end of his 10 day profile period, and he returned to his regular duties. Antalgic gait does not affect the development of pes planus. In October 2017, the RO awarded the Veteran service connection for the removal of his left ingrown big toenail with a 10 percent disability rating effective June 10, 2008. Upon return to the Board, it again rejected the VA examiner’s opinions as inadequate because it “did not discuss whether the Veteran’s surgery for his ingrown [toenail] caused or is related to his current” conditions. March 13, 2018, Board Decision (Decision VI). Thus, the claim was remanded for an addendum opinion. During the interim, the Veteran was awarded, in an October 2018 rating decision, service connection for left foot neuropathy of the peroneal nerve associated with left ingrown great toenail removal. The Veteran received a 10 percent disability rating effective date of October 31, 2017. In October 2019, VA obtained another opinion. The examiner stated that the Veteran’s bilateral foot conditions of osteoarthritis of the bilateral big toes and bilateral pes planus less likely than not began in military service and medically are not related to the in-service surgery for left ingrown toenail or any altered gait resulting from that surgery. The examiner provided the following, extensive rationale: Although the [V]eteran asserts that his current bilateral foot condition began in service, the weight of the current available evidence however, refutes that claim for the following reasons discussed below. The toenail removal procedure is simple and usually takes no more than twenty minutes, a local anesthetic is injected and the nail is then removed. While this may be disturbing for the reader to contemplate, the operation is generally quite painless. Patients will typically have some drainage and tenderness for a week or two following the procedure but typically recovers completely without chronic toe pain, disorder of the musculoskeletal system is unexpected after this procedure. It is evident from the summarized evidence above that the [V]eteran recovered fully after the procedure without any long term residual or any resulting chronic gait impairment because multiple treatment records after service documented normal gait and normal foot exam for several years following the toenail removal. Thus, the current diagnosed bilateral foot condition is separate from, and not related to the 1983 toenail removal. His current diagnosed bilateral foot conditions developed long after active duty service and due to the factors explained in the next paragraph. Toenail and the current diagnosed feet condition belong to different body organ systems. The [n]ail belongs to the integumentary system, which is the organ system that protects the body from the outside. Whereas, pes planus and osteoarthritis is a disorder of the musculoskeletal system and it is therefore very unlikely tha[t] the nail that was removed in 1983 and which had since regrown has any causal relationship to the [V]eteran’s current diagnosed feet condition of pes planus and osteoarthritis. Furthermore, acquired pes planus is due to mismatch between active and passive arch stabilizers due to biomechanics and anatomic factors of which the most common is posterior tibial tendon dysfunction on which a history of a [toenail] removal has no relationship. The [V]eteran’s second diagnosed feet condition is osteoarthritis of the great toes, and osteoarthritis is unlikely to be caused by a specific event. It is multifactorial in nature and is due to complex interplay between mechanical, cellular, and biomechanical factors leading to end-stage pathology. According to UpToDate . . . multiple risk factors have been linked to osteoarthritis such as aging, genetics, and weight. The [V]eteran is 59 years old which in itself is one of the risk factors for developing osteoarthritis. Given the above understanding of osteoarthritis pathophysiology, it is less likely than not that this condition was caused or etiologically related to the 1983 nail that was removed and more likely than not related to chornic degenerative change associated with aging and obesity. Another diagnosis that according to VBMS has been previously attributed to the 198[3] nail removal is left foot neuropathy of the superficial peroneal nerve. Again, given the knowledge of anatomy of nail removal procedure, this condition is less likely than not due to the 1983 nail removal because the procedure of nail removal does not typically have any effect on the nerves, and furthermore, [the] physical exam of the feet and neurological system several months after the nail removal was normal. Given the aforementioned rationale, it is clear that the documentation in that Peripheral nerve C&P exam that attributed the [V]eteran’s peripheral nerve condition to the remote nail removal was clearly and unmistakably in error because it is clear that the toenail removal of 1983 did not result in a neuropathy[.] [H]is lower extremity neuropathy is more likely than not due to his documented lumbar radiculitis/radiculopathy. Given all the aforementioned, it is my opinion that the [V]eteran’s toenail removal during service resolved without residual. Thus, it is against this procedural backdrop that the Board now takes up, for the final time, this claim. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of ten percent within one year following discharge from service. When a chronic disease is not shown to have manifested to a compensable degree within one year after service, there is required, under 38 C.F.R. § 3.303(b), a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board acknowledges that the various VA examination reports verify that the Veteran currently suffers from bilateral osteoarthritis of the great toes and bilateral pes planus. Thus, the first element of service connection has been established. See Romanowsky, 26 Vet. App. 293; 38 C.F.R. § 3.303(a). The April 2015 VA examination report noted that x-rays of the Veteran’s feet from 2014 fist showed mild DJD of the bilateral big toes. Thus, because a diagnosis of DJD was not confirmed within one from separation from service, the application of presumptive service connection for a chronic condition is not applicable in this case. See 38 C.F.R. §§ 3.307(a), 3.309(a). Furthermore, there are no documented complaints of pain or symptoms of DJD since separation from service. Thus, the application of service connection based on continuity of symptomatology also is inapplicable in this case. See 38 C.F.R. § 3.303(b). Turning back to the principles of direct service connection, the Board also concedes that the Veteran had an ingrown toenail of the left big toe, which was removed by surgery in 1983. Thus, the second element of service connection has been established. See Romanowsky, 26 Vet. App. 293; 38 C.F.R. § 3.303(a). With respect to the third element of service connection, the Board finds that the weight of the evidence is against the Veteran’s claim. Over the course of this claim’s life, VA has obtained numerous medical opinions in an effort to help the Veteran substantiate his claim. Not one of those opinions has related the Veteran’s osteoarthritis of the bilateral big toes or bilateral pes planus to his in-service ingrown toenail or its surgical removal. All of these opinions have been recounted above, but the October 2019 VA examiner provided a particularly in-depth and articulate analysis explaining not only the procedure by which the Veteran’s toenail would have been removed, but why removal of a toenail would be unrelated to the development of osteoarthritis or pes planus. Furthermore, that examiner even goes as far as to provide a possible explanation for the cause of the Veteran’s current bilateral foot conditions, linking them to age, obesity, biomechanical factors, etc. While the Board recognizes that the Veteran may believe his current conditions are related to service, he is not competent to render such a complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Without any competent and credible medical opinion expressing a relation between the Veteran’s current conditions and his military service, the Board is unable to find that the third element of service connection has been satisfied. Furthermore, in the face of so many opinions expressing a negative relationship between the Veteran’s conditions and service, the Board finds that these opinions, most notably the October 2019 opinion, comport with the remaining competent and credible evidence of record. Thus, the third element of service connection has not been established. See Romanowsky, 26 Vet. App. 293; 38 C.F.R. § 3.303(a). Because the evidence of record does not support the Veteran’s claim for entitlement to service connection for a bilateral foot disability, to include osteoarthritis, pes planus, or any skin condition of the bilateral feet, the Veteran’s appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). In an April 2020, Post-Remand Brief, the Veteran’s representative argues that service connection should be granted because a February 2018 examiner opined that Veteran’s claimed “residuals of numbness over entire left foot, is at least as likely as not . . . proximately due to or the result of the Veteran’s service[-]connected . . . left ingrown great toenail removal . . . .” (Emphasis omitted). This argument, however, is a moot point. As noted above, the Veteran has received two 10 percent disability ratings: one for the actual in-service removal of his ingrown left great toenail, and a second rating for left lower extremity neuropathy associated with that in-service surgery. Thus, the Veteran already has been compensated for those symptoms. The conditions on appeal, however, do not warrant service connection for the reasons discussed above. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.