Citation Nr: 21002085 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-63 193 DATE: January 12, 2021 ORDER Entitlement to service connection for right leg pain as secondary to service-connected disabilities is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for left arm scar is remanded. FINDING OF FACT The evidence fails to establish that the Veteran’s claimed right leg disorder was incurred in, or is otherwise etiologically related to, his active duty military service; the disability was also not incurred or aggravated as secondary to the service-connected residuals of right fourth toe amputation. CONCLUSION OF LAW The criteria for entitlement to service connection for a right leg disorder 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 had active service, including from March 1960 to September 1960 and February 1964 to May 1967. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. These matters were previously before the Board in March 2019, when they were remanded for additional development to include new VA examinations. The record shows VA scheduled and obtained new examinations. The Board notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for appellate review. For the reasons discussed below, the Board finds the October 2019 VA knee and lower leg examination and medical opinion is sufficient while the October 2019 VA scars/disfigurement examination is not, as will be addressed in the remand section. The Board notes neither the Veteran nor his representative have asserted, nor does the record reflect, that the claimed right leg disability first manifested during service or was directly related to his active duty service. It has only been claimed that the disability is secondary to the Veteran’s service-connected disabilities. See Veteran’s April 2012 Supplemental Claim; see also February 2019 and December 2020 Appellate Briefs. Accordingly, the Board will only address whether the Veteran is entitled to service connection for his claimed right leg disability on a secondary basis. See Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). After reviewing the evidence of record, the Board finds that service connection for right leg pain as secondary to his service-connected disabilities is not warranted. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. However, VA will not concede aggravation unless the baseline level of severity of the non-service-connected disease is established by medical evidence. 38 C.F.R. § 3.310(b). 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). Determinations as to service connection will be based on review of the entire record and VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b). A Veteran is competent to report on that of which he or she has actually observed and is within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges the Veteran has a current right leg disorder. See October 2019 VA knee and lower leg conditions examination noting a diagnosis of right knee strain. Therefore, the only questions for the Board are whether the right leg condition is proximately due to, or aggravated by, the Veteran’s service-connected fourth right toe amputation residuals. The Board has thoroughly reviewed VA and private treatment records in the claims file. A January 2002 podiatry record notes shooting pain from the amputation site radiating proximally up the anterior aspect of the leg causing instability; no knee pain is noted on palpation. A January 2003 neurology record notes sharp shooting pain in the right knee. A June 2003 VA neurology record notes the Veteran is experiencing pain radiating down the lateral aspect of his right leg into his foot. A July 2003 private treatment record notes an impression of sciatica caused by a herniated L4 disc, by report. A July 2007 primacy care record noted the Veteran has chronic leg pain status post (s/p) toe amputation s/p several subsequent surgical procedures. An August 2008 surgical history record noted the Veteran wears a left knee sleeve and has limited range of motion (ROM) because of back pain. A separate August 2008 surgical nursing record noted the Veteran’s gait was normal. A December 2014 primary care record noted the Veteran was expressing concern about discomfort and instability in his right knee. The same record notes that the Veteran wears a full leg brace, but he is unable to wear it under his pants in winter and he is requesting a smaller leg brace. A March 2014 physical therapy record noted the Veteran reported to the outpatient clinic using a cane and has a guarded mildly antalgic gait. The same record noted the Veteran reported back pain rated at 5/10. A July 2014 VA neurology consultation record noted the Veteran’s gait was slightly wide and hesitant. A February 2016 VA primary care record notes the Veteran has pain in the right leg, worse with flexion of the hip, and full ROM is limited by pain in the hip. A December 2017 VA mental health outpatient record notes the Veteran uses a cane because of back pain. A February 2018 VA addendum record notes weakness in gait/transferring. An August 2018 VA psychiatry record notes the Veteran has a normal gait and sat upright in a chair. A November 2018 VA psychiatry record noted the Veteran walked with a cane and had a slow gait. An October 2019 primary care follow-up record noted the Veteran had a normal gait. A December 2019 VA treatment record noted the Veteran’s gait is stable with a cane. A July 2020 VA emergency room record noted the Veteran has a normal gait. The record also includes a May 2005 letter from the Veteran’s treating private physician. The letter notes that the Veteran has complained about foot pain at the amputation site and was instructed to use special shoes. The claims file includes a September 2005 VA neurological disorders examination for foot pain, wherein the reported history notes the Veteran received a cortisone shot for pain in 2001 which helped for approximately four months. However, the Veteran reported he began getting low back pain with pain radiating down. He stated that an MRI showed a bulging disk, and he has been using a cane for the past four to five years to help relieve the back and leg pain. The claims file includes an October 2018 VA amputation examination confirming that the Veteran’s right fourth toe was amputated. The Veteran reported current symptomatology including pain with touch and walking that has gotten worse and is now a shooting pain up his leg and into the back; he also reported spasms in the calves. The examination report noted a scar at the fourth toe 2.5 cm x 0.7 cm. The Veteran is noted to use custom shoes to protect sensitive nerves from unnecessary stimulation. In the remarks section of the report, the examiner noted a suspicion that radicular irritation is hyper-sensitizing the nerves at the amputation site. The examiner noted that the Veteran reports constant pain, not worsened with walking. The examiner continued, indicating a belief that the chronic complaints are confusion with overall hypersensitivity. The examiner noted no redness, heat, swelling, and mild sensitivity, decreasing proximally to the proximal head where there is no appreciable pain to palpation. The examiner concluded his remarks by noting that it is quite unlikely, especially without acute physical exam findings, that this site is flared up 40 years after the surgery for no good reasons. In an attached October 2018 medical opinion, the examiner opined the claimed feet and toe numbness, tingly radiating pain to include painful cramps and spasms are less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected residuals of right fourth toe amputation. As a rationale, the examiner noted that the Veteran’s symptoms are more consistent with bilateral radiculopathy, especially likely as the Veteran has a long history of lumbar and radicular complaints. The examiner noted an alternative cause of painful cramps and spasms to most likely be undiagnosed diabetes mellitus with (diabetic peripheral neuropathy) based on complete symmetry of the leg pain. Following the Board’s March 2019 remand, VA requested and obtained a VA knee and lower leg examination and medical opinion in October 2019. Following an in-person examination and file review, the examiner confirmed a diagnosis of right knee strain. The examiner noted the Veteran was unable to report the specific date of onset, but he did report experiencing knee pain after waking up one morning. Current symptoms include intermittent dull throbbing pain in the right knee. In the attached medical opinion, the examiner opined that it is less likely than not that the Veteran’s right knee condition was incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted the Veteran’s service dates. In addition, the January 1967 separation examination is silent for a right knee condition. Therefore, the right knee strain condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In an August 2020 deferred rating decision, the RO determined that the October 2019 examiner failed to provide a medical opinion based on aggravation. The examiner was requested to provide an addendum opinion to address service connection based on aggravation by any service-connected disabilities as listed in the January 2019 rating decision. The RO noted that if aggravation is found, the examiner should specify the baseline level of severity of the right leg pain before the chronic worsening and the level of severity of the right leg pain after the chronic worsening. In a subsequent September 2020 medical opinion, based on a review of the record, the same examiner reiterated the negative etiology opinion for direct service connection for right leg pain. The examiner also provided a medical opinion for secondary service connection, opining that the claimed condition is less likely than not (less than 50 percent probability) proximately due to, the result of, or aggravated by the Veteran’s service-connected condition. As a rationale, the examiner noted that there is no pathophysiological correlation between a right 4th toe amputation in causing a right knee strain condition. A review of medical literature yielded no evidence in establishing a correlation between right knee strain conditions being caused by right fourth toe amputation. The examiner also noted separately that there is no pathophysiological correlation between a painful scar residual of neuroma right 4th toe amputation and a right knee strain condition. While the Veteran is competent to observe lay symptoms including pain, the record does not establish that he has the training or credentials to provide a competent opinion as to a diagnosis or the etiology of such diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to medical opinions of record, particularly the September 2020 medical opinion, which failed to establish a secondary connection between the service-connected disabilities and right leg pain. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s right leg condition was caused by service, or was caused by or aggravated by his service-connected residuals of right fourth toe amputation. In the absence of competent evidence supporting the Veteran’s claim the Board finds that service connection is not warranted. There is no reasonable doubt to be resolved, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In the March 2019 remand, the Board acknowledged that the Veteran has a linear scar on his right foot at the 4th toe and multiple scars on his right wrist. After a thorough review of the October 2019 examination report, the Board observes that the examiner noted that the Veteran’s right lower extremity is not affected; the only scar identified on the examination was on the left forearm. The Board is unclear based on the face of the report if the Veteran only has one painful scar, located on his left forearm, or if the examiner only addressed the left forearm scar. A remand for an addendum is necessary to identify all of the service-connected scars on the Veteran’s body and clarify which ones are painful. The matters are REMANDED for the following action: Return the claims file to the October 2019 VA examiner (or, if unavailable, to another VA medical professional who has reviewed the file). The examiner is requested to identify the number, location, and size of all service-connected scars and identify which scars are painful. An additional VA examination may be conducted, if deemed necessary. A complete rationale for all opinions must be provided. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.