Citation Nr: 21061820 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-32 178 DATE: October 5, 2021 ORDER Entitlement to service connection for a right foot disability, characterized as degenerative arthritis of the right foot and deformity and partial resection of the middle phalanx of the right 5th toe, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his right foot disability, characterized as degenerative arthritis of the right foot and deformity and partial resection of the middle phalanx of the right 5th toe, is at least as likely as not related to his active service. CONCLUSION OF LAW The criteria for service connection for a right foot disability, characterized as degenerative arthritis of the right foot and deformity and partial resection of the middle phalanx of the right 5th toe, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board granted the issue of whether new and material evidence had been received sufficient to reopen a previously denied claim for service connection of a right foot disorder and also remanded the underlying claim for service connection for this disability. In May 2021, the underlying service connection claim was remanded again for further evidentiary development. The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Service connection for a right foot disability Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (1) the existence of a present disability; (2) inservice 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 is presumed where there are either chronic symptoms shown in service or continuity of symptoms since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b) & Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). When all evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski 1 Vet. App. 49 (1990). In the current appeal, the Veteran contends that he has a right foot disability related to his military service. He reports injuring his right foot in a forced helicopter landing in 1969. First, the Board observes that the Veteran has been diagnosed with degenerative arthritis of his right foot and deformity and partial resection of the middle phalanx of his right 5th toe, as shown on his February 2020 VA examination. Thus, the first element of Shedden is established for this claim. The Veteran's service treatment records (STRs) contain multiple notations in February 1969 indicating that he was hospitalized following a forced landing of a helicopter. While he did not report any right foot complaints at the time, he has consistently reported that he injured his right foot in this forced landing and that he has continued to have right foot pain and difficulties since then. Following his separation from service, he was repeatedly seen for right foot complaints which he related to an in-service helicopter forced landing. See, e.g., April 1975, January 1980, July 1987, January 2013, and January 2015 Treatment Records. The Board finds credible his assertions that his right foot problems began in service and have continued since then. Accordingly, the question becomes whether the Veteran's current right foot disability is related to his active service. There is evidence both in favor of, and against, this matter. The evidence against the claim includes a February 2020 VA examiner's opined that it was less likely than not that the Veteran's right foot disability was caused by his service. The examiner relied on the absence of sufficient evidence documenting an in-service right foot injury in providing a negative opinion. The Board, in its May 2021 remand, noted that a medical opinion that relies on the absence of contemporaneous medical evidence, and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cor. 2006). Here, the examiner failed to address the Veteran's contentions and inappropriately relied on the absence of documentation in his STRs, which gives the February 2020 VA examination little probative value. In a June 2021 VA addendum opinion, the examiner opined that it was less likely than not that the Veteran's right foot disabilities are related to his military service, including his documented 1969 forced helicopter landing. In support of this opinion, the examiner documented the Veteran's complaints of right foot pain following his service, from roughly 1970 to 1984 and continuing through to the present, but then stated that there was insufficient evidence to support a chronic and continued right foot disability following the Veteran's service. The examiner noted the Veteran's June 1970 treatment for a right foot fracture along with complaints of pain, weakness, and unstable gait, but then opined that any right foot injury associated with a forced landing would demonstrate significant pain, decreased range of motion, swelling, effusion, and unstable gait close to the time of the injury. The Veteran reported such symptoms within a year of his reported injury, and it is unclear why these reports were discounted or not given consideration by the examiner. Also, it is unclear why the examiner found that there was insufficient evidence to support a chronic right foot disability when the reports taken from the Veteran and documented in the examination report support the Veteran's reports of a chronic right foot disability. The evidence in favor of the claim includes multiple positive nexus statements and records of the Veteran's consistent contentions regarding the nature and origin of his right foot disability. In April 1975, the Veteran was seen at the VA and reported pain in his right foot since 1969, and the examiner noted the Veteran was dealing with right big toe tenderness status-post helicopter crash. A January 1980 private treatment record noted that the Veteran's right foot problem began when he injured it in a helicopter crash. A VA examination is of record from October 1985, wherein the examiner did not provide an opinion but recorded the Veteran's reports of having injured his right foot in a helicopter forced landing. Later, VA and private treatment records reflect the same consistent reports from the Veteran and notations of an injury related to an in-service helicopter forced landing. A letter from the Veteran's prior private treatment provider is of record from March 1991. The provider recalled treating the Veteran in July 1970 for an injury to his right foot and stated that the right foot injury occurred during his military service. The provider noted the Veteran's reports of an in-service forced helicopter landing and a resulting right foot injury. Private treatment records from January 2015 include a positive nexus opinion. The examiner noted that the Veteran's longstanding osteoarthritis is likely related to the hard landing of the helicopter years ago in 1969. While the examiner did not include rationale for the provided statement, the Board finds this evidence to be credible and in favor of the Veteran's claim and, when taken in conjunction with the other evidence of record, supports the Veteran's claim for service connection. The Board finds that the private treatment records and statements from the Veteran's private treatment providers are more persuasive and, when taken with the other evidence of record, support the Veteran's claims. The private treatment records, as well as early VA treatment records and the October 1985 VA examination, fully considered the Veteran's contentions regarding his service and resulting right foot injury. The evidence clearly indicates a current disability, and the Veteran's reports of his onset of symptoms is found to be credible. The more recent VA examinations, while helpful in confirming the Veteran's current right foot disability, failed to consider adequately the Veteran's contentions in providing an opinion. The February 2020 VA examiner inappropriately relied on the absence of contemporaneous medical evidence and failed to consider the Veteran's contentions. The June 2021 VA examination report was contradictory in nature, as the examiner noted the Veteran's reports, and documented complaints, of right foot pain beginning less than a year following his separation and continuing to the present but then opined that there was a lack of sufficient evidence to support a chronic right foot disability. In this regard, some of the findings in the examination report are favorable to the Veteran, and the Board ascribes more weight to the documented evidence of a chronic right foot disability than to the examiner's finding to the contrary. The favorable findings documented in the June 2021 VA examination report, taken in conjunction with the private treatment records and opinions, support a finding that the Veteran's right foot disability is at least as likely as not related to his active service. Thus, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's diagnosed right foot disabilities are related to his service and affords him the benefit of the doubt in this regard. Service connection for a right foot disability, characterized as degenerative arthritis of the right foot and (CONTINUED ON NEXT PAGE) deformity and partial resection of the middle phalanx of the right 5th toe, is, therefore, granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.