Citation Nr: 21000965 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-21 675 DATE: January 6, 2021 ORDER Service connection for left foot hammertoes is denied. Service connection for a left foot and/or left ankle disorder is denied. FINDING OF FACT A chronic disorder of the left foot, left ankle, or left toes was not present in service or within one year thereafter, and is not otherwise etiologically related to the Veteran’s service. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot hammertoes have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2020). 2. The criteria for service connection for a left foot and/or left ankle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 until February 1975. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2020. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2019 and a transcript of the proceeding is of record. Duties to Notify and Assist 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 an 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 a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in September 2019. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior January 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran 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- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis At the October 2019 Board hearing the Veteran asserted that he has chronic disorders of the left foot, left ankle, and toes as a result of an in-service injury when he fell through a grate. The Veteran’s wife also stated that the Veteran frequently complained that his foot bothered him and it seemed to get worse over time. In October 2019 correspondence, the Veteran’s wife wrote that the Veteran had complained of left foot and ankle problems since the 1973 injury. Lay statements from JT and LR, who were fellow servicemembers, recalled that the Veteran had been limping aboard ship. Available VA and private medical records document the Veteran first reported left ankle symptoms in June 2015. The Veteran underwent a VA examination in December 2015 and VA obtained an addendum opinion in April 2017. The opinions obtained, however, were inadequate. Another VA examination was conducted in March 2020 and an adequate opinion was obtained. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). March 2020 VA examinations of the foot and ankle revealed diagnoses including left ankle synovitis and left foot diagnoses including left foot hammer toes and arthritis, and left foot calcaneal plantar spur with fibromatosis. Second, the Board finds that there was an in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s service treatment records (STRs) reveal that in June 1973 the Veteran fell through deck grating and had 4 abrasions and bruises on his left lower leg. Six days later the Veteran complained of pain and swelling that began the day prior, and he was observed to have swelling below the right knee with inflammation around the wounds and evidence of diminished circulation to the foot; the diagnosis was cellulitis. About a week later the swelling was subsiding and the Veteran was advised to not do any prolonged standing or walking for an additional 72 hours. The January 1975 separation examination was silent for any left foot, ankle or toe disabilities or defects, and on the January 1975 report of medical history the Veteran specifically denied foot trouble. Third, the Board finds that the evidence of record does not support a finding that the Veteran’s left foot disorders are related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In a June 2015 letter, Dr. H opined that the Veteran’s left ankle pain was consistent with osteoarthritis, and likely due to the 1973 in-service injury. Dr. H also stated that the Veteran’s hammertoes could by caused by the same injury. A June 2015 VA clinician also stated that left foot pain was likely osteoarthritis due to old trauma. In March 2020, a VA examiner opined that the Veteran’s various left foot disorders were not likely related to his active service, including the injury in June 1973. As such, the evidence of record contains an opinion of etiology favorable to the Veteran’s claim and a VA opinion that rejects the Veteran’s claim. Greater weight may be placed on one physician’s opinion over another depending on factors such as the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The professional credentials and experience of opinion providers are properly considered in assigning probative value. Sklar v. Brown, 5 Vet. App. 140, 146 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. Harris v. West, 203 F. 3d 1347, 1350-51 (Fed. Cir. 2000). “[M]ost of the probative value of a medical opinion comes from its reasoning.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). With these considerations in mind, the Board finds that the favorable opinion from Dr. H and the VA clinician has less probative value than the March 2020 VA examiner’s opinion. The positive opinions essentially contained no rationale and does not appear to have been based on a review of the Veteran’s STRs. In this regard, the opinions discussed the Veteran’s left ankle arthritis. The Board observes, however, that there are no indications of a left ankle injury during service, and there appears to be no current diagnosis of left ankle arthritis of record. The March 2020 VA examiner, on the other hand, made specific references to the Veteran’s STRs and noted the in-service incident and further noted the absence of any incidents pertaining to the left foot for the remaining portion of the Veteran’s active service. The March 2020 VA examiner also discussed the Veteran’s post-service left foot medical history and noted the lack of treatment for the Veteran’s left foot disorders until many years subsequent to service. The March 2020 VA examiner also observed that the Veteran had worked following service where he had stood for long periods of time for up to 8 hours a day working in the lumber industry until 1993 at which time he had a factory job that also involved standing for long periods of time on concrete for decades until retiring three years prior. Significantly, the March 2020 VA examiner noted that the Veteran had bilateral calcaneal spurs with fibromatosis, consistent with long-standing periods in a weightbearing position. The bilateral calcaneal spurs with fibromatosis, according to the March 2020 VA examiner, not only explained the Veteran’s pes planus on the right foot it explained “his abnormalities on his left foot.” This (the bilateral calcaneal spurs with fibromatosis) would not “support a contusion abrasion on the left foot as the cause as this patient has bilateral symmetrical loss of motion at the ankles and no degenerative changes noted.” As for left foot hammertoes, the examiner noted that the left foot hammertoes was an area of the foot “that is explained in response to his pes planus with pronation as this is an altered gait mechanism from the right foot causing the left foot not the left foot causing the pronation and pes planus on the right.” The examiner essentially summarized the other claimed disorders of the left foot as being “directly related to standing for long periods of time on a hard surface” at work for 40 years. In sum, and contrary to Dr. H’s opinion, the March 2020 VA examiner physician provided a sound rationale for the opinion expressed, and it is clear that the opinion was based on a comprehensive review of the Veteran’s medical history as well as a contemporaneous examination. Thus, the Board accords the March 2020 VA opinion significant weight. The Veteran’s assertion that his left foot disorders are related to service has been considered. The Board, however, finds that this opinion is not competent. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of orthopedic disorders, as between several potential causes. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Layno v. Brown, 6 Vet. App. 465 (1994) (layperson is competent to report only that which the person observed). Accordingly, to the extent these lay statements addressed the nexus element, the Board finds that they are not competent and are also outweighed by the VA examiner’s March 2020 opinion. The Veteran and the authors of the various lay statements submitted in support of the Veteran’s claims are competent to report that he has had symptoms related to his left foot since service. The Board notes, however, that the Veteran injured his left foot in June 1973, yet made no more complaints regarding his left foot during the portion of his military service. Furthermore, at discharge, no such complaints were noted and the clinical examination of the Veteran’s left foot was normal. In the same manner, the Veteran specifically denied that he had left foot pain at the time of his discharge from service. This conflicting evidence diminishes the credibility of the lay statements. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The March 2020 VA examiner was aware of these assertions of continuity of symptoms for the left foot and did not find them persuasive, noting that the reports of the Veteran limping during service did not reveal chronicity but simply were consistent with the acute phase of the Veteran’s left leg injury. The March 2020 VA examiner went on to state that the Veteran had made no such left leg or left foot complaints following service until more than four decades thereafter. In view of the evidence to the contrary, the Board does not find that the Veteran’s and other’s lay statements are sufficient to establish continuity of symptomatology for the left foot disorders. As the preponderance of evidence is unfavorable to the claims, service connection is not warranted, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.