Citation Nr: 21002137 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 18-42 066 DATE: January 12, 2021 ORDER Entitlement to service connection for degenerative arthritis of the spine, claimed as chronic back pain, to include as secondary to service-connected residuals of injury to the right foot, with clawfoot deformity, hammertoes, and plantar fasciitis is granted. Entitlement to service connection for peroneal neuropathy, right lower extremity is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s degenerative arthritis of the spine is secondary to service-connected residuals of injury to the right foot, with clawfoot deformity, hammertoes, and plantar fasciitis. 2. Resolving reasonable doubt in his favor, the Board finds that the Veteran’s peroneal neuropathy, right lower extremity, is related to his in-service injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the spine, to include as secondary to service-connected residuals of injury to the right foot, with clawfoot deformity, hammertoes, and plantar fasciitis, have been met. 38 U.S.C. § 1110, 1154, 5107 (2012); 38 C.F.R. § 3.303; 38 C.F.R. § 3.309 (2019). 2. The criteria for entitlement to service connection for peroneal neuropathy, right lower extremity, have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to August 1974. This appeal comes to the Board of Veterans’ Appeals (Board) from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A Board virtual hearing was held before the undersigned Veterans Law Judge in September 2020. The hearing transcript has been associated with the Veteran’s claims file. During the September 2020 hearing, the Veteran’s representative requested to hold the record open for 60 days to submit additional evidence. In November 2020, the Veteran submitted additional evidence with a waiver of RO consideration and requested to close the record and waive the remaining time extension. See 38 U.S.C. § 7105 (e). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 21.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Establishing service connection generally requires competent evidence showing: (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 present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. 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, generally medical, establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for degenerative arthritis of the spine, claimed as chronic back pain, to include as secondary to service-connected residuals of injury to the right foot, with clawfoot deformity, hammertoes, and plantar fasciitis The Veteran asserts entitlement to service connection for a spine disability, to include as secondary to his service-connected clawfoot. Specifically, the Veteran has testified that he has a moderate antalgic gait, which his VA and private doctors attribute to his service-connected right foot condition. See September 2020 Hearing Transcript. He reports that he favors his right leg, and that his back and foot pain limit his ability sit or stand for long periods of time and requires pain medication. Id. The Veteran was afforded a VA spine examination in November 2015. The VA examiner noted a diagnosis of degenerative arthritis of the spine. The Veteran reported that his service-connected right foot disability caused his back condition. The Veteran denied flare-ups and functional impairment of his spine. Range of motion (ROM) testing revealed normal ROM. There was no guarding or muscle spasm present. Muscle strength was 5/5 with no atrophy. Sensory testing was normal but radicular pain was present, including mild right lower extremity intermittent pain. The VA examiner noted right lower extremity peroneal nerve radiculopathy unrelated to the Veteran’s spine disability. The VA examiner reported that the Veteran’s spine disability does not impact his ability to work. An addendum opinion was provided in November 2015. The VA examiner opined that the Veteran’s spine disability is less likely than not due to his service-connected right foot disability. The VA examiner reported that the Veteran’s spine disability is more likely due to aging, disuse, and genetics. The Veteran has submitted a September 2020 private medical opinion. The private physician noted the Veteran’s service-connected right foot disability and the changes in his gait with a limp. The private physician opined that the Veteran’s degenerative osteoarthritis of the spine is more likely than not present by reason of chronic gait pattern disruption. The private physician noted several treatment records documenting the presence of a limp due to the Veteran’s service-connected foot disability. The first and most fundamental requirement for any secondary service connection claim is the existence of a current disability. 38 U.S.C. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As an initial matter, the Board finds that the Veteran has satisfied the first element of secondary service connection, a current spine disability. The Veteran’s November 2015 VA examination revealed a diagnosis of degenerative arthritis of the spine. Therefore, the Board finds that the Veteran has satisfied the first prong of secondary service connection, the existence of a current disability. 38 U.S.C. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). As to evidence of a service-connected disability, the Board notes that the Veteran is currently service connected at 30 percent disabling for residuals of injury to the right foot, with clawfoot deformity, hammertoes, and plantar fasciitis. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection on a secondary basis, evidence of a service-connected disability. 38 U.S.C. §§ 1110, 1131; Boyer, 210 F.3d at 1353. Furthermore, turning next to evidence of a causal relationship between the service-connected disability and the current disability, the Board finds the weight of the medical evidence is in relative equipoise. The October 2015 VA addendum medical opinion opined that the Veteran’s spine disability is less likely than not due to his service-connected right foot disability. Meanwhile, the September 2020 private medical opinion opined that the Veteran’s spine disability is at least as likely as not more likely than not present by reason of chronic gait pattern disruption, caused by his service-connected right foot disability. Based on the foregoing and after resolving all doubt in the Veteran’s favor, the Board concludes that the probative medical evidence of record is in relative equipoise regarding a causal relationship between the Veteran’s spine disability and his service-connected residuals of injury to the right foot, with clawfoot deformity, hammertoes, and plantar fasciitis. Overall, the Board finds the September 2020 private medical opinion to be competent and probative evidence that is at least in equipoise with the negative nexus opinion from the November 2015 VA addendum opinion. Therefore, the Board finds that service connection for the Veteran’s spine disability is warranted. 2. Entitlement to service connection for peroneal neuropathy, right lower extremity The Veteran asserts service connection for right lower extremity peroneal neuropathy. Specifically, the Veteran has testified that, while moving an aircraft jack, it tipped over and landed on his foot. See September 2020 Hearing Transcript. The Veteran reported that the accident caused nerve problems, making his leg twitch and swell. Id. A review of the Veteran’s service treatment records (STRs) shows an injury to the Veteran’s right foot in April 1974, involving a plane jack falling on his foot. The Veteran presented with extreme pain and swelling. Diagnostic impression was noted as blunt trauma to the right foot with a bad sprain and the Veteran was prescribed an ace bandage, pain medication, and light duty. The Veteran returned a couple days later, still complaining of pain in the area of his injury. The Veteran was afforded a VA spine examination in November 2015. Sensory testing was normal but radicular pain was present, including mild right lower extremity intermittent pain. The VA examiner noted right lower extremity peroneal nerve radiculopathy unrelated to the Veteran’s spine disability. No etiology opinion was provided. The Veteran has submitted a September 2020 private medical opinion. The private physician noted the Veteran’s in-service injury and that the pain in his right leg wakes him from his sleep and has been present since the injury, worsening over the years. Following a review of the record, the private physician opined that the Veteran’s right leg condition is due to his in-service right leg injury. In support of his opinion, the private physician summarized how the Veteran’s injury affects the physiology of his right leg, causing increased pain and a change in his gait. After considering the evidence of record and affording the Veteran the benefit of the doubt, the Board finds that service connection for right lower extremity neuropathy is warranted. The Veteran is competent to discuss that which he experienced directly, including his in-service injury, as well as his right lower extremity neuropathy. Thus, the Board finds that the statements and testimony are entitled to probative weight. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s claimed in-service injury is confirmed by his STRs, showing a blunt trauma to his right foot caused by a plane jack falling onto his foot. See April 1974 STR. Thus, the Board finds that the claimed in-service injury can arguably be confirmed, and the second criteria for entitlement to service connection has been met. 38 C.F.R. § 3.303 (a). Finally, the Veteran has provided a positive nexus opinion, provided by his private physician. Furthermore, the Veteran has given the Board no reason to doubt the credibility of his statements or testimony, and the record contains no evidence that the Veteran’s right lower extremity neuropathy is not related to service. Therefore, reading the evidence in a way most favorable to the Veteran, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran has satisfied the third criteria. 38 C.F.R. § 4.3 Thus, the Veteran has met the criteria for entitlement to service connection for right lower extremity peroneal neuropathy. As such, affording the Veteran the benefit of the doubt, service connection for right lower extremity peroneal neuropathy is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.