Citation Nr: 21069273 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-40 330 DATE: November 18, 2021 ORDER Service connection for residuals of a right great toe fracture is granted. Service connection for a right knee disability, diagnosed as degenerative arthritis, is granted. REMANDED Service connection for a bilateral foot disability, to include pes planus, degenerative joint disease (DJD), and plantar fasciitis, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, her right great toe fracture residuals are at least as likely as not etiologically related to her active service. 2. Resolving reasonable doubt in the Veteran's favor, her diagnosed right knee degenerative arthritis is at least as likely as not etiologically related to her active service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a right great toe fracture are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for the right knee degenerative arthritis are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1978 to September 1980. This current appeal before the Board of Veterans' Appeals (Board) arose from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran cancelled a scheduled Board hearing. In May 2020, the Board, inter alia, reopened the Veteran's previously denied service connection claims for residuals of a right great toe fracture, and a right knee disorder, and remanded those claims, together with the service connection claim for a bilateral foot disability to the Agency of Original Jurisdiction for further evidentiary development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from 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). Service connection requires competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury, event, or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The decision as to whether each element of a claim is met is based on an analysis of all pertinent evidence of record and evaluation of its competency, credibility, and probative value. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection can also be established through application of a statutory presumption for chronic diseases, such as arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. Residuals of right great toe fracture Considering the pertinent evidence of record in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the current right toe disability is warranted. First, in addressing the matter of current disability, the Board notes that an October 2020 VA examination report noted the Veteran's status-post right great toe fracture. While the examination report indicated that she did not have residuals, review of her VA clinical treatment records reveals her complaints of chronic right great toe pain, including her report of having pain since the time of the in-service injury. Also, the October 2020 VA examiner noted that the Veteran's functional impairment, at least in part associated with right great toe pain, included pain on walking and difficulty with prolonged standing, walking, and weight bearing. Accordingly, the evidence indicates that the Veteran's current right great toe fracture residuals are symptomatic and result in functional impairment. With respect to in-service incurrence of the claimed right great toe disability, the Board acknowledges that there is some discrepancy in the record with respect to whether the Veteran's right toe disability preexisted her entry into active service. In accordance with VA laws and regulations, a veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted on the entrance examination report. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). This presumption is rebutted where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Id.; VAOPGCPREC 3-03 (July 16, 2003), 69 Fed. Reg. 25178 (2004); Wagner, 370 F. 3d 1089. An injury or disease that has been determined to be preexisting will be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). Here, the Veteran reported in a September 1977 report of medical history that she had a history of broken bones. Her September 1977 enlistment examination report noted her history of having fractured her great toe four years prior to the examination, but that there were no residuals. Her August 1980 separation examination report noted that she had fractured her right great toe at the age of 14, due to a desk falling on her foot and that she was treated by taping the toe. There was no deformity noted or loss of motion. Thus, while the Veteran was accepted into active service with no noted residuals of her apparent prior right great toe fracture, the Board finds that a clear, identifiable right great toe disability was not noted at the time of her entrance into active service. 38 C.F.R. § 3.304(b)(1). Further review of the Veteran's service treatment records (STRs) indicates that she began to have problems with her right great toe during service. An April 1980 clinical treatment report noted that she had intermittent swelling and pain in the area of her prior fracture, without apparent recurrent trauma. The assessment was a contusion of the first toe of the right foot. Further, in an October 2012 statement, and in a statement received in July 2015, the Veteran explained that she did not have any problems with her foot after injuring it as a teenager, prior to her active service. She maintained that she did injure her foot during her period of technical training, when she checked out a soccer ball to practice, and ended up stepping into a grass covered hole. She reported that she attempted to report to sick call many times and had to go on pretending as if her foot was not injured in service. She noted that, as she was threatened by being told that those who complain are let go from service with a dishonorable discharge, she continued to endure her pain throughout her service. While the October 2020 VA examiner opined that the Veteran's right toe disability clearly and unmistakably preexisted her active service, and was not aggravated by an in-service event, injury or illness, the opinion was based on a lack of evidence of right toe disability after the April 1980 diagnosed contusion, including at the time of separation, and an absence of documented evidence of a chronic right great toe condition following her separation from active service until 2008. The examiner did not specifically address the Veteran's reports that she had to hide her pain during service, and that she continued to have pain from the time of her separation form service through to the present day. Accordingly, the Board finds that the examiner's opinion is of minimal probative value, and there is no clear evidence unmistakably attributing the increase in severity of the right great toe disability during service to the natural progression of the disability. Based on the foregoing, the Board finds that there is no clear and unmistakable evidence showing that the Veteran's right great toe disability both preexisted her entry into active service and was not aggravated during her service. Where, as here, VA is unable to rebut the presumption of soundness, the claim becomes one for service connection based on incurrence of disability in service. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004) (where the presumption of soundness cannot be rebutted, claims for service connection based on aggravation are converted into claims for service connection based on in-service incurrence). As for the matter of a nexus between current right great toe fracture residuals, and the Veteran's service, the Veteran has credibly reported having a continuation of her right great toe symptoms, specifically chronic pain, since her separation from service. Notably, in addition to the Veteran's multiple lay statement, she also reported to VA healthcare providers that she has had toe pain ever since her active service. She is competent to report on her symptomatology. See Layno, 6 Vet. App. at 470. Given the Veteran's current diagnosis of right great toe fracture residuals, she essentially presents the same disability as that noted during her active service, where her STRs noted complaints of recurrent swelling and pain in the area of her prior right great toe fracture. Thus, the Veteran's assertions together with the medical evidence of record establish a continuity of her right great toe symptoms since her separation from service. Overall, the Board finds that the weight of the evidence supports a finding that the Veteran's current right great toe disability is at least as likely as not etiologically related to her active service. She is competent to report the circumstances of her recurrent pain and swelling during service, and she is competent to report on the continuation of such symptoms since her separation from service. See Layno, 6 Vet. App. at 470. Her reports are consistent with the medical evidence which include in-service medical reports noting her complaints of pain and swelling, and imaging studies noting the prior fracture. Current evidence reveals essentially the same symptoms. Affording the Veteran the benefit of the doubt, the Board finds that she has experienced right great toe symptoms since her active service. Thus, service connection for the current residuals of a right great toe fracture is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56, 38 C.F.R. § 3.102. Right knee disability Considering the pertinent evidence of record in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board also finds that service connection for the current right knee degenerative arthritis is warranted. First, in addressing the matter of current disability, the Board notes that, in describing the Veteran's degenerative arthritis diagnosis, an October 2020 VA examination report cited to January 2008 imaging studies which revealed the presence of right knee osteoarthritis. With respect to in-service incurrence of the claimed right knee disability, the Board notes that there is contradictory evidence on the point of whether the Veteran sustained a right knee injury during service. While she apparently denied sustaining a specific injury to her knee during service at the time of the October 2020 VA examination, and review of her STRs does not reveal complaints of a specific knee injury, the STRs do note her right foot and toe problems. Also, at a private March 1994 orthopedic consultation, which noted the presence of degenerative changes in her knees, she reported that she had experienced right knee pain since stepping into a hole while playing soccer during service in 1978. As for the matter of a nexus between the Veteran's current right knee degenerative arthritis and her active service, she has credibly reported having a continuation of her right knee symptoms since her separation from service. See March 1994 private orthopedic consultation report & January 2008 VA primary care consultation report. She is competent to report on her symptomatology. See Layno, 6 Vet. App. at 470. Moreover, in the March 1994 private report, the physician specifically stated that the Veteran's knee problems seemed most suggestive of degenerative disease following injury. The Board finds this report to be consistent with the Veteran's report of a continuity of knee pain symptoms since her reported in-service knee injury. Thus, the Veteran's assertions together with the medical evidence of record establish a continuity of her right knee symptoms, which resulted in a degenerative arthritis diagnosis, since her service separation. Overall, the Board finds that the weight of the evidence supports a finding that the Veteran's current right knee degenerative arthritis is at least as likely as not etiologically related to her active service. She is competent to report the circumstances of her knee pain during service and the continuation of such symptoms since her separation from service. Her reports, especially the report made to a private orthopedic provider many years prior to the current claim, are credible and probative. Cf. Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (which stipulates that a Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). Affording the Veteran the benefit of the doubt, the Board finds that she has experienced right knee symptoms since her active service. Thus, service connection for the current right knee degenerative arthritis is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56, 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for a bilateral foot disability The Board remanded the bilateral foot claim in May 2020 to obtain an opinion as to whether a current right foot disability was at least as likely as not etiologically related to the Veteran's active service, to include documented weight gain during such service. While she was afforded a VA examination of her feet in October 2020, the examiner diagnosed only bilateral pes planus and degenerative arthritis, and did not discuss plantar fasciitis, which was diagnosed during the pendency of her appeal. Also, while opining on the etiology of the Veteran's claimed foot disability, the examiner equivocally stated that the condition was at least as likely as not incurred in or caused by a claimed in-service injury, event, or illness, but then provided reasons why the disability was not related to service. Further, the examiner relied on the inaccurate factual premise that the evidence did not reveal that the Veteran had complained of a foot disability at any point between her separation from service and a consultation in 2008. However, review of the medical evidence indicates that she reported foot problems as early as June 2006, and was diagnosed with plantar fasciitis at least as early as September 2006. Finally, given evidence of reports of pain throughout the lower right extremity, reportedly associated with the in-service incident where the Veteran stepped into a hole while practicing soccer, resulting in the toe and knee injury, the Board finds that an opinion is warranted as to whether a foot disability may be related to now service-connected right great toe or right knee disabilities, on a secondary basis. Accordingly, this matter is hereby REMANDED for the following action: Arrange for the Veteran's claims file to be reviewed by an appropriate VA examiner to obtain new opinions as to the etiology of her claimed bilateral foot disability. The claims file and a copy of this REMAND should be made available to the examiner for review. If the examiner finds that a new examination is warranted in order to provide a requested etiology opinion, arrange for the Veteran to be afforded such examination. If the Veteran is examined, any and all indicated studies and tests deemed necessary by the examiner should be accomplished. After review of the record, and completion of any examination (including any necessary tests and studies), the examiner should: (a.) for each foot disability diagnosed during the pendency of the Veteran's appeal (pes planus, plantar fasciitis, degenerative arthritis) provide a new opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that such disability had its onset during her active service, or is otherwise medically-related to her service, to include the incident where she stepped into a hole while practicing soccer, and/or her documented weight gain during service. (b.) For each foot disability that is deemed to not be at least as likely as not etiologically related to the Veteran's service on a direct basis, also provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that such disability was caused, or aggravated (made worse) beyond its natural progression by her service-connected right great toe and/or right knee disabilities. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include evidence of lower extremity pain in the years following the Veteran's separation from active service (including in 1993 and 1994) and evidence of foot disability as early as in June 2006and also lay evidence of record, to include the Veteran's assertions as to the nature, onset, and continuity of her claimed foot disability. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. A clear rationale must be provided for all opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Her failure to report for a scheduled VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.