Citation Nr: 21065434 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-67 575 DATE: October 26, 2021 ORDER Entitlement to service connection for a right foot/toe disability, other than service-connected right foot missing 2nd toenail, is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to a right knee disability, is remanded. FINDING OF FACT The Veteran's right first toe bunion status post chevron procedure/bunionectomy, right foot hallux valgus, and right foot second toe status post hammertoe arthroplasty did not have their onset in service and are not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for right foot/toe disability, other than service-connected right foot missing 2nd toenail, are not met. 38 U.S.C.§§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1976 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge. In January 2020 and May 2021, the Board remanded the appeal for further development. In an August 2021 rating decision, the RO granted service connection for a left and right foot/toe disability, diagnosed as onychomycosis of the left foot and toenail, and right foot missing 2nd toenail. The Board will address the remaining diagnoses for his right foot/toe disability as detailed below. Service Connection 1. Entitlement to service connection for a right foot/toe disability, other than service-connected right foot missing 2nd toenail, is denied. Service connection may be established for a disability resulting from injury or disease incurred in or aggravated during active service. 38 U.S.C. § 1131. 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). Generally, to establish 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran asserts that his right foot/toe disability was incurred during service that was manifested by ingrown toenails and a missing toenail and that his feet were treated during service and he has had problems with his toes since that time. Additionally, he asserts that he has bunions, athlete's foot, and fungus on both feet. See October 2019 Board Hearing Transcript at 18, 22. The Veteran has current diagnoses of right foot missing 2nd toenail, right first toe bunion status post chevron procedure/bunionectomy, right foot hallux valgus, and right foot second toe status post hammertoe arthroplasty. See January 2021 VA examination reports. As noted above, the Veteran is already service connected for right foot missing 2nd toenail and onychomycosis. Thus, the remainder of the discussion will focus on the other diagnoses of record. To this end, element one for these diagnoses is met. Regarding element two, in-service incurrence of a disease or injury, the Veteran's service treatment records (STRs), document tinea pedis/onychomycosis and infected great left toe with cellulitis. See February 1979 STR. Thus, for reasons detailed below, element two is met. As to element three, nexus, the only competent medical opinion of record, that of the June 2021 VA examiner, is against the claim. The examiner, after a thorough review of the claims file, particularly the Veteran's lay statements and STRs, opined that the Veteran's diagnosed right first toe bunion status post chevron procedure/bunionectomy, right foot hallux valgus, and right foot second toe status post hammertoe arthroplasty less likely than not originated in service or were not otherwise related to service. In support of her opinion, she first noted that the Veteran's now service-connected right foot missing 2nd toenail is related to his documented in-service onychomycosis (foot fungus infection) in his great left toe stating that it is medically possible that his left foot fungus eventually infected his right foot, specifically his left 2nd toenail bed resulting in loss of his "second toenail" over time. She further explained that tinea pedis and nail bed fungus (noted in his STRs) can be very difficult to irradicate permanently and that it is medically conceivable he has had waxing and waning foot fungus for 40 years. On the contrary, she noted that tinea pedis, foot fungal infection, and infected left great toenail with moderate cellulitis documented in his STRs as noted above, do not progress to cause nor are they related to the development of his other diagnosed conditions of right first toe bunion status post chevron procedure/bunionectomy, right foot hallux valgus, and right foot second toe status post hammertoe arthroplasty. Thus, she concluded that none of these other skin conditions were incurred in or otherwise related to service. The Board finds this opinion persuasive as the examiner thoroughly reviewed the claims file, highlighted the pertinent information, and applied reasoning to her opinion by first noting why the service-connected right foot missing 2nd toenail is related to service and then comparing it to the other diagnoses and why they are not related to service. There is no competent evidence to the contrary. To the extent the Veteran asserts his other right foot/toe diagnoses are related to service, he is not competent to opine on the etiology of his right first toe bunion status post chevron procedure/bunionectomy, right foot hallux valgus, and right foot second toe status post hammertoe arthroplasty, as to do so requires specialized training and expertise. As such, the preponderance of the evidence is against the claim; thus, the benefit of the doubt doctrine does not apply and service connection is not warranted for the Veteran's right foot/toe disability, other than service-connected right foot missing 2nd toenail. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a right ankle disability, to include as secondary to a right knee disability, is remanded. Pursuant to the Board's May 2021 remand directives, an addendum opinion was obtained in June 2021. The Board asked the examiner to opine on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed right knee osteoarthritis status post right total knee arthoplasty had its onset during service or is otherwise related to service. In addressing this question, the examiner was instructed to note the Veteran's service treatment records (STRs) document a motor vehicle accident and concede the Veteran's report that he injured his right knee during this accident. See June 1980 STR and October 2019 Board Hearing Transcript at 15. The examiner was then instructed to provide a discussion of whether a nexus between right knee osteoarthritis status post right total knee arthoplasty and service is medically consistent with his conceded right knee injury during a documented motor vehicle accident during service. However, although the examiner noted the motor vehicle accident, she failed to concede that a right knee injury occurred as a result, as specifically requested by the Board, and instead relied on lack of documented complaints, treatment, or injuries of the right knee during service. Thus, for this reason, an addendum opinion is needed from a different examiner on remand to ensure substantial compliance with the Board's May 2021 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see also Dalton v. Nicholson, 21 Vet. App. 23(2007) (holding that a VA examination was inadequate because the examiner relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion). Finally, as the Veteran's right ankle disability claim is inextricably intertwined with his right knee claim, action on his right ankle claim is deferred pending the outcome of his right knee claim. See Board Hearing Transcript at 20. The matters are REMANDED for the following action: Obtain an addendum opinion from a VA examiner other than the March 2016, January 2021, and May 2021 VA examiners to determine the etiology of the Veteran's right knee disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should address the following: (a) Please opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right knee osteoarthritis status post right total knee arthoplasty (see March 2016 and January 2021 VA examination reports) had its onset during service or is otherwise related to service. In addressing this question, the examiner should note the Veteran's service treatment records (STRs) document a motor vehicle accident and concede the Veteran's report that he injured his right knee during this accident despite lack of in-service documentation of specific right knee complaints, treatment, or injury. See June 1980 STR and October 2019 Board Hearing Transcript at 15. (b) Please provide a discussion of whether a nexus between right knee osteoarthritis status post right total knee arthoplasty and service is medically consistent with his conceded right knee injury during a documented motor vehicle accident during service. See June 1980 STR and October 2019 Board Hearing Transcript at 15. Otherwise, the opinion will be rendered inadequate. (c) If and only if a right knee disability is service-connected in part (a) above, then please also opine on whether it is at least as likely as not (50 percent probability or greater) that right ankle tendonitis is (i) proximately due to service-connected right knee joint osteoarthritis or (ii) has been aggravated (worsened) by service-connected right knee joint osteoarthritis. In addressing question (c), the examiner is advised that two separate opinions are necessary for: one for proximate causation and one for aggravation. The examiner should note that primary disability (right knee joint osteoarthritis) need not be service-connected, or even diagnosed, when the secondary disability (right ankle tendonitis) is incurred and reliance on this fact will render the opinion inadequate. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.