Citation Nr: A21017652 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 210901-184085 DATE: November 1, 2021 ORDER Service connection for a right foot condition, to include right foot arthritis, right mid foot fusion, right 2nd hammertoe with fusion, pes planus, and plantar calcaneal spur, is granted. Service connection for surgical scar of the right foot is granted. FINDINGS OF FACT 1. The evidence is in at least relative equipoise as to whether the Veteran's right foot condition, to include right foot arthritis, right mid foot fusion, right 2nd hammertoe with fusion, pes planus, and plantar calcaneal spur, was incurred in, or aggravated by, an in-service injury or incurrence. 2. The competent and probative evidence tends to show that the Veteran's current surgical scar of the right foot is proximately due to or aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a right foot condition, to include right foot arthritis, right mid foot fusion, right 2nd hammertoe with fusion, pes planus, and plantar calcaneal spur, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a surgical scar of the right foot, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1964 to September 1967 and is receipt of the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran perfected appeal to the Board by filing a VA Form 10182 Notice of Disagreement (NOD), selecting Direct Review of the evidence by a Veterans Law Judge. Thus, the Board will review evidence as of the date of the July 2021 rating decision. The Board notes that the claim was previously denied in August 2020 and the Veteran filed a supplemental claim in September 2020. An October 2020 rating decision issued denying the claim. In November 2020 the Veteran filed a request for a higher lever review. A March 2021 rating decision issued finding a difference of opinion asserted. The Veteran was afforded a VA examination in June 2021. The Board notes a claimant or his authorized representative who disagrees with a prior VA decision may file a supplemental claim by submitting in writing or electronically a complete application any time after the agency of original jurisdiction (AOJ) issues notice of a decision, regardless of whether the claim is pending or has become finally adjudicated. 38 C.F.R. § 3.2501. If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the claim taking into consideration all of the evidence of record. If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. In determining whether new and relevant evidence is presented or secured, VA will consider any VA treatment records reasonably identified by the claimant and any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed. Here, the July 2021 rating decision readjudicated the claim taking into consideration the new and relevant evidence presented. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for a claimed disability on a direct basis, there must be competent evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established by evidencing a chronic disease in service, which requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required. Id. The provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to direct service connection, a disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, air, or space organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b). Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. 1. Service connection for a right foot condition, to include right foot arthritis, right mid foot fusion, right 2nd hammertoe with fusion, pes planus, and plantar calcaneal spur, is granted. The Veteran seeks service connection for a right foot condition he claims is due to his military service. He claims that his right foot condition(s) is related to the physical rigors of his military service, or is the direct result of injuries sustained during his combat service. In a March 2021 rating decision, VA conceded that the Veteran sustained a right foot injury during service, based on his credible lay statements and documented combat while on active duty. Additional, VA acknowledged medical evidence reflect the Veteran's current right foot diagnoses of flatfoot, hammertoes, heel spur, degenerative arthritis, and midfoot fusion. These are favorable findings that the Board accepts and will not disturb. Thus, the question before the Board is whether the Veteran's current right diagnoses were incurred in or are related to his military service, to include any right foot injuries during his combat service. Unfavorable evidence of record is the VA examination opinion obtained in June 2021. The examiner provided diagnoses of right foot arthritis, right mid foot fusion, right 2nd hammertoe with fusion, pes planus, plantar calcaneal spur and also surgical scar of the right foot. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that although VA conceded that the Veteran sustained an injury to his right foot during combat duty in Vietnam, he was unable to find any specific active duty records referring to his right foot. The examiner found that the records note that the Veteran started to complain of right foot pain in 2005, after an injury, and that the Veteran reported onset of right foot pain to him in 2016. The examiner indicated that the Veteran's right foot condition progressed to the point of requiring fusion surgery in 2019. The examiner concluded that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed rigors of documented combat duty in Vietnam because there is no evidence of right foot complaints at the time of leaving active service or chronicity of complaints to the present. Favorable evidence of record includes a February 2011 buddy statement from fellow service member T.M. which reflects his account that while conducting combat operations and particularly hostile insertions, the Veteran would often be required to jump/drop from the helicopter skids at heights that ranged from four to fifteen feet and was required to carry heavy rucksack, weapons and ammunition for the operations. Second, a June 2020 VA examination addendum opinion notes the Veteran's extensive in-service training in the Special Forces, airborne qualification, and combat service in the Republic of Vietnam. The examiner also noted that the Veteran earned a parachute badge and described a parachute landing fall, with five points of body contact with the ground, to include the balls of the feet. Although the examiner did not specifically address the right foot diagnoses, the examiner opined that the Veteran's leg length discrepancy is at least as likely as not proximately due to the rigors of Veteran's combat service and specialized military training and that injuries to the lower extremities including the hips, knees ankles and feet are common. Third, in the Veteran's September 2021 argument, in which he stated that it is untrue that he injured his foot in 2005 as there is no evidence that his foot was broken, as it simply did not happen. The Veteran argued that the long-term orthopedic conditions that he has is identical to the long-term medical conditions that originated during his service in Vietnam, which are now service connected. In regard to the unfavorable evidence of record, the June 2021 unfavorable opinion, first, the Board finds that the examiner, made the determination to find no relationship between the Veteran's service and right foot disability based on the absence of contemporaneous records evidencing a right foot injury in service. However, the Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007). This essentially means the examiner did not afford adequate consideration to the Veteran's service, including combat and specifically jumping from helicopters. Second, in this regard, it is the Board's duty as factfinder to assess the credibility and probative weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the lay evidence is consistent throughout the record. Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The statements are plausible and credible and consistent with his service as shown by the record. Id. As such, the Board finds that the June 2021 opinion is inadequate and assigns it no probative weight. See NievesRodriguez v. Peake, 22 Vet. App. 295, 304 (2008). On the other hand, the most probative piece of favorable evidence is the June 2020 VA examination addendum opinion regarding the rigors of Veteran's combat service and specialized military training and the examiner's acknowledgment that injuries to the lower extremities, including the feet, are common. The Board notes that the Veteran has been awarded service connection for bilateral hip, bilateral knee and a left foot condition due to the June 2020 examiner's favorable opinion regarding the physical demands of the Veteran's service and his lower extremity disabilities. The opinion included adequate rationale and thus, the Board assigns this opinion high probative value. Further, the Board finds that this opinion, at the very list, is pertinent to the question of a nexus for the Veteran's right foot. The second most probative piece of evidence in the record are the Veteran's and T.M.'s lay statements indicated that the Veteran's service included jumping from helicopters in service and having injuries to his lower extremities. As noted above, such lay evidence is consistent with the Veteran's service. 38 U.S.C. § 1154(b). The Board affords some probative value to the lay evidence of record. The Board finds no clear and convincing evidence of record to rebut this evidence of injury to the contrary. Id. In this regard, the Board shall resolve every reasonable doubt in favor of the veteran. Id. Based upon the foregoing, the Board finds that the lay and medical evidence is at least in relative equipoise as to whether the Veteran's right foot condition is reasonably shown to be incurred in, or aggravated by, an in-service injury or incurrence. As such, the benefit of doubt is afforded to the Veteran and service connection is granted for the right foot disability. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 2. Service connection for surgical scar of the right foot is granted. At the June 2021 VA right foot examination, the examiner found a scar on the dorsum right foot of mild severity, resulting from surgical procedures to the right foot in 2019. The Veteran also underwent a VA scars examination in June 2021 at which time the examiner diagnosed the Veteran with surgical scar right foot, located at the dorsum of the foot. Here, the June 2021 VA examinations establishes that the surgical scar right foot is due to right foot surgery, a derivative of the now service-connected right foot disability. Specifically, the June 2021 examiner indicated that the right foot condition progressed to the point of requiring the fusion surgery in 2019. As the instant decision grants service connection for the right foot, the Board further finds that the competent and probative evidence tends to show that the Veteran's current surgical scar of the right foot is proximately due to or aggravated by his service-connected disability. As such, the benefit of doubt is afforded to the Veteran and service connection is granted for the scar of the right foot disability. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.