Citation Nr: 21067280 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-45 781 DATE: November 3, 2021 ORDER Entitlement to service connection for a right foot hammer toe disability is denied. Entitlement to service connection for a left foot hammer toe disability is denied. REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for a bilateral hallux valgus disability, status post-operative, is remanded. FINDINGS OF FACT 1. A bilateral hammer toe deformity of the 5th digit was noted at examination for active service. 2. The weight of the evidence of record is against a finding that the Veteran's pre-existing bilateral hammer toes disorder increased in severity during active service. 3. The presumption of aggravation is not triggered. 4. The weight of the evidence of record is against a finding that the Veteran's currently diagnosed bilateral hammer toe deformity is related to the rigors of active service. CONCLUSION OF LAW The criteria for entitlement to for service connection for a bilateral foot disorder, to include hammer toes of the 4th and 5th digits, have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran perfected an appeal from a September 2013 rating decision. See 12/03/2015 SOC; 12/14/2015 VA Form 9. He died in June 2019 with his appeal still pending. See 07/08/2019 Notification. In a 2019 decision, the Board dismissed the appeal due to the Veteran's death. See 09/13/2019 BVA Decision. The appellant is the Veteran's surviving spouse. She applied to be substituted in the Veteran's stead, and the Agency of Original Jurisdiction (AOJ) approved her application. See 11/15/2019 VA 21-0847; 10/08/2020 Correspondence. The Veteran's rescheduled Board hearing for July 2019 was cancelled due to his death. Initially the appellant requested a Board hearing, which was scheduled for October 14, 2021. Although no correspondence is currently in the digital claims file, an entry in VACOLS notes that the appellant cancelled the hearing and did not request that it be rescheduled. Service Connection Service connection for bilateral hammer toe disorder Applicable Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may 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). Arthritis is presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements in a claim involving a listed chronic disease is through a demonstration of continuity of symptomatology. An award of service connection based solely on continuity of symptomatology is limited to chronic diseases under 38 C.F.R. § 3.309 (a). Cf. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Lanyo v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. Discussion A Veteran is deemed to have been in sound condition on entry into active service, except for conditions duly noted. 38 C.F.R. §§ 3.304(b), 3.305(b). The service treatment records (STRs) include a July 1962 Report of Examination for Enlistment that notes that the Veteran had a hammer toe deformity of the 5th digit of each foot. See 07/24/2013 STR-MED, P. 4. If the evidence shows a worsening of symptoms during service, then the presumption of aggravation is triggered. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also 38 C.F.R. § 3.306. An entry dated in November 1963 notes the Veteran's complaint that his feet hurt when he walked for a long period of time. The entry notes further that the Veteran's feet hurt over the metatarsals and the arches. He was issued arch supports and instructed to return the clinic as needed. See 07/24/2013 STR-MED, P. 24. In January 1965 he presented with complaints of twisting his left ankle while jumping over a log. He reported further that he injured his foot while serving overseas, and that the foot was easily reinjured since the injury. Upon subsequent examination by a physician, the diagnosis was a bad left ankle sprain. X-rays were negative. No mention or finding was made as concerned the foot. Id. P. 28. On his June 1965 Report of Medical History for his examination at separation, the Veteran noted a positive history of foot trouble, and the examiner noted that the Veteran had frequent trouble with painful arches in his feet. The Report of Medical Examination for Separation reflects that the Veteran's feet were assessed as normal. Id. P. 13, 16. The Veteran certified that there was no change in the state of his health between the date of his examination and the date of his separation. Id. P. 3. The AOJ arranged an examination to assist the Veteran with his claim. See 38 C.F.R. § 3.159(c)(4). The examination report (08/27/2013 C&P Exam) reflects that the examiner conducted a review of the claims file and noted the Veteran's reported history as part of the examination. The Veteran reported that he had sought treatment from orthopedists and podiatrists off and on since 1968. The examiner opined that it was not at least as likely as not that the hammer toe disorder had onset in service or was connected to active service, as it was not the disorder for which the STRs note that the Veteran was treated for. Id. P. 5. In a statement submitted with his NOD, the Veteran asserted that his feet hurt from the first day of his military service and they continued to hurt throughout his service. He asserted further that his issued boots were terrible; they were hard and inflexible, and his feet would swell, blister, and bleed. He asked for different boots, but nothing happened, and he asked the medics for salve for his feet. Mostly he was afraid to draw attention to himself. See 11/08/2013 VA 21-4138. While the Veteran's appeal was being developed, VA received records from the Veteran's non-VA physician, D.N.B., M.D. See 03/25/2014 Medical Treatment-Non-Government Facility. Dr. B's records include a March 2000 entry that notes the Veteran's report of left foot pain that had been present for 5 years and had progressively worsened. The Veteran reported a 1991 left foot injury when he stepped on a pipe, and a 1992 right foot injury when it was struck by a falling wooded structure. The Veteran worked in custodial maintenance. Dr. B eventually performed surgery on the Veteran's feet. Id. P. 6. In a February 2015 letter, Dr. B's physician assistant, P.K. (02/09/2015 Non-Government Facility), addressed the Veteran's claim. Mr. K referenced questions that were outlined in a statement in support of the Veteran's claim. He did not further identify the statement. Per the Veteran's 21-4138 of the same date, P.K. PA-C reviewed copies of the Veteran's enlistment and separation examination reports. P.K. PA-C noted the bilateral hammer toe when the Veteran enlisted, and the Veteran's report of issues of in-service painful arches, and he noted that it was reasonable to conclude that if the Veteran was required to go on long marches in ill-fitting shoes, it would have a potentially permanent impact on his feet; hence, it was reasonable to conclude that the Veteran's foot issues still existed at the time he separated. He then noted the Veteran's left forefoot reconstruction in 2007. As noted, Dr. B's records and P.K. PA-C's opinion was not part of the claims file at the time of the 2013 VA examination, so the AOJ arranged another examination. The examination report (11/17/2016 C&P Exam, 2nd Entry) reflects that the examiner reviewed the claims file again, which included the aforementioned non-VA treatment records. After review of the additional records, the VA examiner adhered to his negative nexus opinion. The examiner noted the Veteran's post-service history as recorded in Dr. B's records, and he noted further that the Veteran's existing hammer toe deformity was never treated in service. Instead, the Veteran's complaints in service were for other foot issues, as was his post-service treatment and eventual surgery in 2007. Id. The Board must assess the credibility and probative value of evidence and account for the evidence which it finds to be persuasive or unpersuasive. In doing so, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Further, the Board is not required to accord more weight to the opinion of a treating physician, see White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001), as the Court of Appeals for Veterans Claims has explicitly "rejected the broad application of the 'treating physician rule' that gives the opinions of treating physicians greater weight in evaluating veterans' claims." Van Slack v. Brown, 5 Vet. App. 499, 502 (1993) (citing Harder v. Brown, 5 Vet. App. 183, 188 (1993)); see Guerrier v. Brown, 7 Vet. App. 467 (1993). Hence, while the Board is not free to ignore the opinion of a treating provider, neither is it required to accord it substantial weight. See generally Guerrier, 4 Vet. App. at 471-73; Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). First, the Board acknowledges that the Veteran was fully competent to attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also 38 C.F.R. § 3.159(a)(2). Nonetheless, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's hammer toe deformity noted on entry increased in severity during his active service. As the VA examiner noted, the Veteran complained of painful arches during his active service, not his hammer toe deformity. The Board notes P.K. PA-C.'s opinion that it was reasonable to conclude that the Veteran's in-service issues still existed at separation. However, P.K. PA-C did not specify which conditions still existed. He did not address whether the hammer toe deformity increased in severity. The fact that a condition may have existed at separation does not address whether a particular condition existed prior to entry into service and whether it worsened. Thus, the Board finds the record fails to show that a pre-existing hammer toe deformity increased in severity during his active service. In making this finding, the Board does not ignore the symptoms which the Veteran set forth in his November 2013 statement. They do not, however, constitute evidence of a diagnosis of the underlying cause of those symptoms, as there is no evidence the Veteran had medical training. See 38 C.F.R. § 3.159(a). The VA medical examiner opined that the Veteran's in-service symptoms were not related to the hammer toe deformity. The evidence of record also does not show that arthritis manifested to at least a compensable degree within one year of separation from active service. Based on all of the above, the Board finds that the presumption of aggravation was not triggered. Wagner, 370 F.3d at 1096. Thus, the standard for deciding this issue is by a preponderance of the evidence. For the reasons set forth above, the Board affords the greater weight to the VA examiner's 2016 opinion, see Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), and finds that the preponderance is against a finding that the pre-existing hammer toe deformity increased in severity. Hence, the Board is constrained to find that the preponderance of the evidence is against the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hallux valgus, status post-operative, is remanded. The November 2016 VA examination report reflects he VA examiner's opinion that the bilateral hallux valgus disorder was not related to the Veteran's active service. The examiner noted the Veteran's post-service foot injuries as documented in Dr. B's records, as well as the type work the Veteran did. The Board noted earlier, the extensive lay history the Veteran set forth in his November 2013 statement. It is not clear from the November 2016 VA examination that the examiner considered the Veteran's lay report of his in-service symptoms. This must be clarified by the examiner. 2. Entitlement to service connection for migraine headaches is remanded. A VA medical examiner opined that the Veteran's headaches are due to head trauma the Veteran sustained in 2007. See 01/02/2016 CAPRI, P. 89; 09/15/2016 C&P Exam, 1st Entry. In a November 2013 statement, the Veteran asserted that his headaches were due to his tinnitus, as they started at the same time. See 11/08/2013 VA 21-4138. Service connection is in effect for tinnitus. The VA medical examiner did not address whether another disability caused or worsened the Veteran's headaches, presumedly because the AOJ did not address it. Hence, additional medical input is needed to address whether the service-connected tinnitus worsened the headaches. The matters are REMANDED for the following action: 1. Send the claims file to the VA clinician who provided the November 2016 nexus opinion on the Veteran's bilateral hallus valgus. Inform the examiner that the Veteran's lay reported history, to include as set forth in his November 2013 statement, must be considered in arriving at an opinion. Inform the clinician further that the absence of contemporaneous medical documentation, alone, is not an adequate basis for a negative nexus opinion. If the absence of documented treatment is material to the issue, the clinician must explain the materiality. With the above in mind, ask the clinician to provide an addendum report wherein he opines whether it is at least as likely as not that the Veteran's bilateral hallux valgus is causally related to the Veteran's complaints and treatment documented in the STRs, to include the Veteran's 1965 report of his history of painful arches. The clinician must provide a full explanation of the basis for the opinion, and the explanation must state how the Veteran's lay reported history was considered in arriving at the opinion. 2. Send the claims file to the clinician who provided the September 2016 nexus opinion on the Veteran's headaches. Ask the clinician to provide an addendum report wherein he opines whether it is at least as likely as not that the Veteran's headaches were worsened by his service-connected tinnitus. Inform the examiner that any aggravation or worsening of the Veteran's headaches need not have been chronic or permanent to satisfy the standard of secondary service connection. Instead, any impairment in earning capacity due to temporary flare-ups of his headaches caused by the tinnitus disability can satisfy the criteria. See Ward v. Wilkie, 31 Vet. App. 233 (2019). A full explanation for the opinion must be provided. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.