Citation Nr: 21063896 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-18 928 DATE: October 18, 2021 ORDER The claim of entitlement to service connection for a right big toe condition, to include osteoarthritis, is granted. FINDING OF FACT The Veteran has experienced symptoms such as pain and swelling related to his right big toe condition since his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right big toe condition are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from December 1973 to October 1979. The Veteran also had a period of National Guard service. This matter comes before the Board of Veteran's Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a right big toe condition. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the Central Office in Washington, D.C. in June 2017. A written transcript of that hearing has been prepared and associated with the evidence of record. The Board remanded the Veteran's claims for service connection for a right big toe condition in December 2017 for a VA examination, which was provided in May 2018. In February 2019, the Board denied the Veteran's claim. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA's General Counsel filed a joint motion for partial remand (JMR), agreeing that the May 2018 VA examination was inadequate as the examiner did not address the Veteran's statements of an injury in-service, did not consider all of the evidence of record, and failed to provide a full rationale for the opinions offered. In April 2020, the Court granted the parties' motion, vacated portions of the Board decision and remanded the matter for actions consistent with the JMR. In September 2020, the Board remanded the claim for a new VA examination, which was provided in November 2020. In January 2021, the Board again remanded the claim, noting that the November examination was also inadequate. Specifically, the Board found that the examiner failed to address the Veteran's statements of continuous symptoms and pain since service as directed in the Board's prior remands and Court's JMR. Following this most recent remand, the Veteran received two additional VA examinations, one in March 2021 and a second in July 2021. The Board notes that while the examiners both provided negative nexus opinions regarding the Veteran's right toe, the examiners came to different conclusions regarding the nature of the Veteran's current right toe conditions. While the Board could remand this matter once again to resolve this conflicting medical evidence and obtain substantial compliance with its prior remand directives, for the reasons outlined below, the Board finds that the most credible and probative evidence is at least balanced as to whether the Veteran suffered an in-service injury that is etiologically related to his current right great toe condition. Thus, as the Board is granting the Veteran's appeal, there is no prejudice to the Veteran in deciding this matter based on the evidence of record. Stegall v. West, 11 Vet. App. 268 (1998). 1. The claim of entitlement to service connection for a right big toe condition. The Veteran contends that he is entitled to service connection for a right big toe condition. 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 v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Pursuant to 38 C.F.R. § 3.309(a) if a disease is not shown to be chronic during service or the one-year presumptive period, then service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established by demonstrating: (1) that a condition is shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. VA shall consider all information and lay and medical evidence of record in a case and make appropriate determinations as to competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); 38 C.F.R. § 3.303. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. In this case, although there are differing medical diagnoses of record, the Board finds that the Veteran has a current diagnosis of osteoarthritis of the big toe (first digit metatarsophalangeal joint osteoarthritis) as evidenced by the March and July 2021 VA examination opinions, with initial diagnosis date March 2014. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. As such, the first element of service connection is met, and the statutory provisions regarding presumptive service connection apply to this appeal. Service treatment records (STRs) show the Veteran was treated for symptoms of multiple toe and foot conditions during service; however, the exact timeline of all injuries to the Veteran's right toe remains slightly unclear. Considering the entirety of the available evidence in a light most favorable to the Veteran, it appears most likely that he first experienced several left foot conditions, including an injured ankle, blisters and athlete's foot, and then an infected ingrown toenail on his left great toe, which occurred in August 1977. Among other things, he was given a profile for his left toe and provided a "profile shoe." See STRs and Board Hearing transcript. According to the Veteran's lay statements, following this series of left foot troubles, he then injured his right big toe when a pivot steering mechanism slipped out of his hand and slammed onto his right great toe while driving an M548 track-lane cargo carrier. The Veteran testified that he recalled his immediate disappointment in injuring his right toe as, given his left foot conditions, he believed walking would become even more difficult. See June 2017 Board Hearing transcript. A November 1977 STR confirms that the Veteran received treatment for a wounded toe. While this record does not specify which toe was injured, the note does not suggest that this treatment was a re-injury of the already problematic left toe. Combined with the Veteran's competent and credible lay contentions, it appears to the Board most likely that this injury was to his right toe, as competently and credibly asserted in lay evidence of record. As such, the Board finds a qualifying right great toe injury occurred during the Veteran's active service. As for the connection between the Veteran's in-service injury and his current condition, the Board notes that on remand, the Agency of Original Jurisdiction (AOJ) was to obtain a medical opinion that fully considered the Veteran's lay statements regarding the in-service right toe injury and continuous symptoms since. For purposes of this opinion, the VA examiner was to assume the Veteran to be a credible historian. It appears that the AOJ obtained two examination opinions from one examiner in March and July 2021. The March 2021 examination opinion noted the Veteran's current conditions of right foot big toe hallux valgus deformity and osteoarthritis, which were identified as the cause of his current continuous symptoms of pain. The examiner concluded; however, that despite the Veteran's assertions of ongoing symptoms during and since service, "the right foot injury during active duty was acute and resolved and is unrelated to the current continuous symptoms of the right big toe[.]" According to the July 2021 opinion, the clinician concluded that the Veteran's "right foot big toe foot injury is unrelated to any active duty condition, injury or illness" noting that the [m]edical records are silent for an ongoing chronicity of treatment" for any right foot condition. The examiner relied on a "temporal gap of 35 years lacking medical treatment or complaints of a right foot condition" in providing this negative opinion. While the Board acknowledges the clinician's conclusions, lay evidence is not incompetent merely for lack of contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Here, the Board specifically directed the VA examiner to consider the Veteran's lay statements regarding continuity of symptomatology in rendering any opinion, which the Board finds was not adequately done as the Veteran's lay statements of record explicitly indicate that the Veteran continued to experience pain, swelling, and discomfort since the time of this injury, especially when walking for long periods. The Veteran has averred that he continued to experience symptoms indicative of his current right toe condition since his injury during active service to the present. The Veteran's lay statements are credible and entitled to probative weight, as they are internally consistent and generally consistent with other evidence of record. See Walker, 708 F.3d at 1338-39; see also Wilson v. Derwinski, 2 Vet. App. 614 (1992) (emphasizing that "symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology"). (Continued on the next page) Resolving all reasonable doubt in his favor, the Board finds the Veteran had ongoing symptoms related to his right great toe condition since his right toe injury during active service, and that his claim meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a right great toe condition, to include osteoarthritis, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that it will not address the ultimate weight assignable to the March and July 2021 VA examination opinions because service connection may be granted on a presumptive basis based on a finding of continuous symptoms since service rather than on direct service connection. Because the Board is granting service connection on a presumptive basis, all other service connection theories are rendered moot. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.