Citation Nr: 21004613 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-31 316A DATE: January 27, 2021 ORDER Entitlement to service connection for left foot trauma is granted. Entitlement to service connection for right knee trauma is denied. REMANDED Entitlement to service connection for left knee strain (claimed as left knee trauma) including secondary to right foot status post neuroma excision with residual scar or left foot trauma is remanded. Entitlement to an increased rating in excess of 10 percent for right foot status post neuroma excision with residual scar is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s left foot trauma began during active service and is at least as likely as not related to an in-service injury, event, or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had any right knee trauma at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot trauma are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right knee trauma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1996 to January 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the March 2012, and August 2014 rating decisions issued by the Department of Veterans Affairs (VA)Regional Office (RO). In January 2019, the Veteran testified at a Board hearing before the undersigned Veteran Law Judge. A transcript of the hearing is associated with the record. In August 2020, the Board remanded this matter for further development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310(a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. 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 a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to service connection for left foot trauma The Veteran contends that his left foot trauma was the result of service, while stationed at Camp Lejeune. The Veteran contends that he received injections in both of his feet during active service. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Medical treatment records demonstrate that the Veteran has a current diagnosis of neuromas bilaterally. The Veteran was seen extensively throughout service for his service-connected neuroma in his right foot for a period of over six months. In December 1999, the Veteran was involuntarily separated from service due to his right foot disability. The medical evidence of record shows that the Veteran was seen extensively for foot conditions while in service. The Board acknowledges that while the Veteran’s left foot is not specifically identified, the Board finds his statements credible. Specifically, the Veteran states that he received injections just prior to being involuntarily discharged because of his physical disability. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran received treatment during service for his left foot. In June 2011, the Veteran received treatment for his left and right foot conditions. The examiner noted that the Veteran had a “small, soft, kind of cyst noted to the left ball of foot.” In July 2011, the Veteran received treatment for his neuromas bilaterally. The examiner’s assessment included “s/p stump neuroma right x 2, neuroma left.” In September 2011, the Veteran underwent a VA examination for his foot conditions. The examiner noted that the Veteran had a diagnosis of Morton’s neuroma and metatarsalgia in both of his feet. The Veteran also had a callous on his great toes bilaterally. The Veteran reported using bilateral inserts bilaterally for relief of pain from neuromas. The Veteran’s MRI indicated that he did not have a neuroma on his right foot, and his left foot was not tested. The examiner found that the Veteran’s right foot was unlikely to be related to service due to the absence of the neuroma on the Veteran’s MRI. In September 2014, the Veteran stated that during service he was treated with a series of shots. He stated that he received these shots instead of being treated with surgery, which resulted in him being discharged instead of receiving treatment for his condition. The Veteran also indicated that he must wear a walking boot on the left foot, which is causing him problems with his tendons and the rest of his foot due to the pain the neuroma have caused, not only in the foot, but his knees. In January 2019, the Veteran testified at a Board hearing. The Veteran testified that he has had the same problem with his left foot as he has had with his right foot. The Veteran testified that he received injections in his left foot at the Naval Hospital at Camp Lejeune, prior to being medically separated from service. The Veteran testified that he had two surgeries on his left foot after service. In addition, the Veteran testified that, They told me that it was a -- that it had neuroma that was -- that it had neuroma, and it just wasn’t as inflamed as my right one, and it hadn’t caused as much scar tissue. And because when they removed the one for the right foot, it left, you know, a big indention in there, but -- and then over the years, it just got worse. But they gave me the shots to try to stop it to -- you know, to get the inflammation down and get that shrinkage I guess of that nerve just a little bit more -- instead of having to remove it. The Veteran is competent to report experiencing symptoms of left foot trauma during service and consistently since service, and the Board finds the reports of continuity of symptomatology credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds the Veteran competently, credibly and persuasively reported his symptoms because his testimony has been consistent throughout the record. The Board also acknowledges that the Veteran was originally denied service connection for his right foot (beyond the scar), even though he was medically discharged for this disability. It was not until the August 2014 rating decision, that the Veteran was awarded service connection for his right foot disability, for anterior metatarsalgia (Morton's disease) with a 10 percent rating. The Veteran has had the same symptoms for his right and his left feet, throughout the appeal period. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current left foot trauma is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for left foot trauma is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for right knee trauma The Veteran contends that he has right knee trauma due to his active service. Direct Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden, 381 F.3d 1163, at 1166-67. The first question for 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 the Veteran does not have a current diagnosis of any right knee trauma and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has considered the Veteran’s assertion that he has a right knee condition and it is etiologically related to his active service. Although the Veteran is competent to report his current symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), he is not considered competent to render an opinion as to the likely etiology of his condition, as doing so requires specialized medical knowledge and expertise he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the Board instead turns to the competent medical evidence of record to determine whether the Veteran has a current diagnosis. The Veteran’s service treatment records are absent for complaint, treatment, or diagnosis of any right knee trauma during his active service. There is no medical evidence that the Veteran has received treatment for his right knee condition since service. The Board considered the Veteran’s lay statements, VA examinations, and treatment records. There is no evidence in the record that demonstrates that the Veteran has, or had, a diagnosis of a right knee condition at any time during service or during this appeal period, thus service connection for a right knee condition on a direct basis is not warranted. Secondary Service Connection In the alternative, the Veteran contends that he has a right knee condition that was caused by or aggravated by his service-connected right foot status post neuroma excision with residual scar or left foot disability. Service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or is aggravated beyond its natural progress by the Veteran’s service-connected right foot status post neuroma excision with residual scar or left foot disability. Here, while the Veteran is service connected for his right foot status post neuroma excision with residual scar and left foot disability, the Veteran does not have a diagnosis of a right knee condition. Thus, service-connection for a right knee condition on a secondary basis is not warranted. Because the preponderance of the evidence is against the claims, for entitlement to service connection for a right knee trauma based on either a direct or secondary basis, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for left knee strain (claimed as left knee trauma) including secondary to right foot status post neuroma excision with residual scar or left foot trauma The Veteran contends that his left knee strain claimed as left knee trauma is related to service. In the alternative, the Veteran contends that his left knee strain is secondary to his right foot status post neuroma excision with residual scar or left foot trauma. In January 1997, the Veteran received treatment for a left knee sprain, but did not receive any subsequent treatment during service. In November 2011, the Veteran underwent an examination for his left knee condition. The examiner noted that in January 1997, the Veteran was diagnosed with a left knee strain. The Veteran continues to complain of left knee pain that is near constant with standing and ambulation. The Veteran reports that when he has flare-ups, he has difficulty walking due to left knee pain and discomfort, and he has difficulty with prolonged standing. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the in-service injury. The examiner stated that there is no radiographic evidence of any left knee disability, degeneration via x-ray, or MRI findings. In January 2019, the Veteran testified at a Board hearing. He testified that he sprained his knee by just “hiking with packs and a heavy machine gun on my shoulder and just kind of like a twist, you know, sprains to it.” He testified that they were mild back then, It was starting to change the way I was having to walk, I guess. I didn’t know what the full effect of it was -- the strains, you know, and this and -- but ever since then, they’ve just gotten worse, which I’ve had to change how I walked on my feet and everything, so they’ve gotten -- also gotten worse. The Veteran contends his knees are becoming worse because of his foot conditions, and it is affecting his ability to work because he is in pain every day. See September 2014 Form 9. The Board finds that the issue of entitlement to service connection for left knee sprain, to include as secondary to the Veteran’s right foot status post neuroma excision with residual scar or left foot trauma must be remanded so that the Veteran may be provided a VA examination as to the issue. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to an increased rating in excess of 10 percent for right foot status post neuroma excision with residual scar The Veteran contends that his right foot status post neuroma excision with residual scar has worsened. The Veteran contends that his foot condition has caused him to change the way he walks. The Veteran’s spouse stated that the Veteran can barely walk, and he limps with pain. The Veteran has bruises around the pads of his feet, and he moves his feet in his sleep due to the pain. The Veteran’s spouse also indicated that the Veteran is missing work because of the pain, and that his work boots make it worse. She states that he is currently out of work on temporary disability due to his condition. His feet have always been an issue, but they have become worse. See September 2014 Statement in support of the claim. In January 2019, the Veteran testified at a Board hearing regarding his foot conditions. He testified that the soft tissue has deteriorated. I have none left on the bottom of my cushions of my foot. Underneath the balls of my joints, underneath the -- my feet where I walk, there’s nothing -- there is no cushion in between my bone and the tissue. There’s no tissue left in there. It’s a big indention. The Veteran’s last examination occurred in 2011, and he has continued to receive treatment for his condition. The Veteran was most recently provided an examination as to his right foot status post neuroma excision with residual scar in November 2011. The Veteran testified at the January 2019 Board hearing that, since November 2011, that his condition has worsened. Specifically, he stated, “every day, just even coming here to this meeting, after putting my shoes on, I will go home, and my feet will be swollen up towards my ankles and everything. And in the site at the bottom of it, there’s nothing to ease the pain where I’m walking. There’s no tissue left.” In light of the Veteran’s assertions, the Board finds that a new VA examination is required so that the current severity of the Veteran’s right foot status post neuroma excision with residual scar may be determined. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). Since the claims file is being returned it should be updated to include any new or outstanding medical treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. Entitlement to a total disability rating based on individual unemployability is remanded. The Board’s directive regarding the Veteran’s increased rating claim for right foot status post neuroma excision with residual scar is being remanded could potentially have an impact regarding the TDIU issue; therefore, the issue of a TDIU is inexplicably intertwined with the issue being remanded and adjudication of TDIU must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record before the Board. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. After completing steps 1 and 2, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his left knee sprain. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the left knee sprain is related to an in-service injury, event, or disease, during his active service. In that regard, the clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If not, the clinician should also provide an opinion as to whether it is at least as likely as not that the Veteran's left knee sprain is (1) proximately due to, or (2) aggravated beyond its natural progression by service-connected disability, to include his service-connected right foot status post neuroma excision with residual scar or left foot trauma. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of any right foot condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner must also consider any other diagnosis, related to the Veteran’s right foot condition. 5. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed condition, other than the Veteran’s service-connected right foot status post neuroma excision with residual scar in #4 is related to an in-service injury, event, or disease, during his active service. 6. The examiner must note and address: (a.) The Veteran contends that the soft tissue under his foot has deteriorated. (b.) The Veteran stated, “every day, just even coming here to this meeting, after putting my shoes on, I will go home, and my feet will be swollen up towards my ankles and everything. And in the site at the bottom of it, there’s nothing to ease the pain where I’m walking. There’s no tissue left.” (c.) The Veteran’s spouse stated that the Veteran can barely walk, limps with pain, has bruises around the pads of his feet, and he moves his feet in his sleep due to the pain. The Veteran’s spouse also indicated that the Veteran is missing work because of the pain, and that his work boots make it worse. She states that he is currently out of work on temporary disability due to his condition. His feet have always been an issue, but they have become worse. See September 2014 Statement in support of the claim. 7. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran’s theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 289 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained). 8. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). (Continued on the next page)   9. Then, the Veteran’s claims must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.