Citation Nr: 21074807 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 12-30 443 DATE: December 16, 2021 ORDER Entitlement to service connection for a left foot disability, best characterized as pes planus, hallux valgus, plantar callus, and bunion, with first metatarsal phalangeal joint degenerative joint disease, is granted. Entitlement to service connection for right knee degenerative joint disease is granted. Entitlement to service connection for left knee degenerative joint disease is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his left foot disability, best characterized as pes planus, hallux valgus, plantar callus, and bunion, with first metatarsal phalangeal joint degenerative joint disease, is at least as likely as not related to active service. 2. Resolving reasonable doubt in the Veteran's favor, his right knee disability, best characterized as degenerative joint disease, is at least as likely as not related to active service. 3. Resolving reasonable doubt in the Veteran's favor, his left knee disability, best characterized as degenerative joint disease, is at least as likely as not related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a left knee disability 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 FINDINGS AND CONCLUSIONS The Veteran had active service from August 1974 to July 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The above listed matters were before the Board in September 2015, May 2017, July 2018 and April 2021, when they were remanded for further development. They now return for appellate review. In July 2015, the Veteran presented testimony at a video conference hearing before a Veterans Law Judge (VLJ), in part, as to the issues herein on appeal; however, the VLJ who conducted the July 2015 hearing is no longer employed by the Board due to retirement. By letter dated on February 2, 2021, the Veteran was provided the opportunity to testify at another hearing before a VLJ and advised that if he did not respond within 30 days, it would be assumed that no additional hearing was desired. As the Veteran did not respond, the Board may proceed with appellate consideration. Additionally, the Board recognizes, following transfer of this appeal to the Board in August 2021, the Veteran was not provided with a Board docketing letter, informing him that his appeal had resumed its place on the Board's docket and that he had 90 days from the date of the letter or until the Board issued a decision in the appeal (whichever came first) to submit additional argument or evidence. However, no further action is required as to this issue, or any other due process deficiency, if such exists, given the claims for service connection for left foot, right knee, and left knee disabilities, are granted below, to the extent allowed as a matter of law. As a final preliminary matter, additional VA treatment records were uploaded into the benefits file by VA subsequent to the most recent, July 2021, Supplemental Statement of the Case issued for the matters decided herein. The Veteran has not waived initial consideration of this evidence by the Agency of Original Jurisdiction (AOJ). However, as entitlement to service connection for left foot, right knee, and left knee disabilities are granted below, to the extent allowed as a matter of law, a remand for AOJ consideration is not warranted as it would serve no useful purpose. A remand is inappropriate where there is no possibility of any benefit flowing to the veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a left foot disability The Veteran asserts that he has a left foot disability which is related to his active service. Specifically, in a May 2010 statement, the Veteran described, in part, that he injured his foot during service when completing parachute jumps, and over time, his foot disability worsened. Similarly, during a May 2010 VA examination, the Veteran generally reported his foot issues started in the 1970s. In July 2015 testimony, the Veteran described in-service hard parachute landings, resulting in pain, specifically the resulting pain felt like his bones shattered. During December 2015 and January 2020 VA examinations, the Veteran stated that he had had left foot pain at the great toe since 1975, which started after parachute jumps and road marching. During a June 2021 examination, the Veteran stated he injured his left foot in airborne operations. He also explained he stepped on a nail during service, that lodged in his boot, and a callus formed after the nail was removed. The initial threshold question for the Board is whether the Veteran has a current left foot disability, and if so, whether that disability began during service, is a qualifying disability which manifested to a compensable degree within a presumptive period or was noted in service with attributable continuity of symptomatology. As to the existence of a current disability, a May 2010 VA examiner endorsed diagnoses of bunions and arthritis. Specifically the May 2010 VA examiner, in pertinent part, cited to May 2009 imaging, which provided an impression of hallux valgus deformities with severe osteoarthritis changes of the first metatarsal phalangeal joint. Thereafter, December 2015 and January 2020 VA examiners each endorsed a diagnosis of hallux valgus/bunion with degenerative joint disease of first metatarsal phalangeal joint of the left foot. Most recently, a June 2021 VA examiner endorsed a diagnosis of left foot pes planus, hallux valgus, and a plantar callus. The diagnoses endorsed by the May 2010, December 2015, January 2020 and June 2021 VA examiners are consistent with the Veteran's other medical records. Thus, the Veteran is acknowledged to have a current left foot disability, best characterized as pes planus, hallux valgus, plantar callus, and bunion, with first metatarsal phalangeal joint degenerative joint disease. Further, during service, the Veteran was seen for complaints related to his left foot. In this regard, a February 1975 service treatment record documented the Veteran complained of a foreign agent in his foot. Another February 1975 service treatment record, of the same date, also indicated, the Veteran had a foot issue due to a nail coming from his old boots. Also, a March 1975 service treatment record documented the Veteran had a complaint of a small puncture to his left foot. Thus, the question becomes whether the current left foot disability, best characterized as pes planus, hallux valgus, plantar callus, and bunion, with first metatarsal phalangeal joint degenerative joint disease, is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim consists VA opinions dated in May 2010, March 2018, December 2015 and January 2020, which found the Veteran's hallux valgus/bunion with degenerative joint disease of the first metatarsal phalangeal joint bilaterally was less likely as not caused by service, to include parachute jumping. Essentially, the May 2010, March 2018, December 2015 and January 2020 VA examiners primarily relied on a finding that the Veteran's service treatment records, including his June 1975 separation examination, did not document findings related to his current left foot diagnoses. The March 2018 VA opinion also explained the Veteran experienced minor self-limiting conditions involving the left foot while on duty, which resolved as expected of such injuries. The March 2018 VA opinion also explained the expectation, from the claimed in-service injury or traumatic events on the left foot, would be that of an acceleration of the wear and tear effects, and consequently, there should be advanced degenerative findings seen on the associated imaging studies. However, the March 2018 VA examiner found the 2002 imaging study of the Veteran's left foot (as documented by the May 2010 VA examiner) did not demonstrate that this was the case, but rather, the 2002 imaging represented the gradual progression associated with aging. Similarly, the January 2020 VA opinion explained the findings on radiographic x-rays in 2002 were less likely due to trauma, 27 years later, and were more likely due to natural aging. The January 2020 VA opinion also cited to literature for the finding that trauma to a joint was more likely to develop into early onset degenerative joint disease, rather than developing many years later, and trauma to a joint did not have a causal effect on the development of hallux valgus. However, in any event, the prior Board remands found the May 2010, March 2018, December 2015 and January 2020 VA opinions to be inadequate, and thus, further discussion of these opinions are not warranted. The evidence in favor of the claim consists a June 2021 VA opinion. The June 2021 VA opinion found the condition claimed was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. As a rationale, the June 2021 VA opinion explained the Veteran sustained a nail in his left boot while in service, and upon examination, there was a callous at the plantar aspect of the foot consistent with trauma to the area. Therefore it was at least as likely as not the Veteran's callous at the bottom of his foot was caused by the nail in his boot that occurred while he was in service. Further, in an August 2021 Informal Hearing Presentation (IHP), the Veteran's representative cited to medical information which indicated bunions may be caused by foot injuries. See https://my.clevelandclinic.org/health/diseases/14386-bunions-hallux-valgus (last visited Nov. 9, 2019). This article indicated that bunions may be caused by foot injuries but also noted they may be caused by inherited foot structure problems and inflammatory diseases. Id. Nonetheless, this article did reflect bunions could be caused by a foot injury, and generally supports the June 2021 VA opinion premised on the finding that a foot injury could result in a later foot disability. Additionally, the Veteran has argued that his left foot disability was due to the boots he wore during his service. Specifically, during the January 2020 examination, the Veteran reported that his airborne boots had a strap that was tight around the foot where he developed bunions. Also, in a September 2020 IHP, the Veteran's representative argued it was plausible that the footwear required to be worn by this airborne Veteran parachutist during his service may have been a causative factor in the development of his left foot hallux valgus and bunion. However, the study cited to in the September 2020 IHP, is not wholly applicable to the facts here, as it generally found that women, who wore high-heeled shoes, had an increased likelihood of hallux valgus. Nguyen U.S., Hillstrom H.J., Li W, Dufour A.B., Kiel D.P., Procter-Gray E, Gagnon M.M., Hannan M.T.: Factors associated with hallux valgus in a population-based study of older women and men: the MOBILIZE Boston Study, Jan. 1, 2010, National Institute of Health, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2818204/. Nonetheless, common sense dictates that that the findings regarding use of high-heeled shoes could possibly be extrapolated to other footwear, such as boots. Additionally, the study also found men with pes planus were more likely to have hallux valgus. Id. Additionally, hallux valgus is defined as a common foot deformity in which the two bones of the big toe are angled in the direction of the little toe and there is a prominent bump on the inner edge of the foot which is subjected to undue pressure and forms a bunion. See Collins Dictionary of Medicine. S.v. "hallux valgus." Retrieved November 9, 2021 from Error! Hyperlink reference not valid.. This definition also noted hallux valgus is caused by unsuitably pointed footwear. Id. In this regard, the March 2018 VA opinion also explained, in part, that wearing footwear that was too tight or caused the toes to be squeezed together were the most commonly blamed factor for the cause of bunions and hallux valgus and was undoubtedly the main contributing factor. Further, the January 2020 VA opinion also found proposed factors of hallux valgus included wearing overly tight shoes, high-heeled shoes, family history, and rheumatoid arthritis. Thus, these portions of the March 2018 and January 2020 VA opinions support the Veteran's contention his left foot disability was due to his in-service footwear. Thus, based on the evidence discussed above, the Veteran's plantar callus was found to be related to his service by the June 2021 VA examiner. Further, the medical information generally tends to reflect that hallux valgus, with a resulting bunion, can be caused by certain footwear, such as boots. Also, as discussed above, the evidence tends to reflect there is a relationship between pes planus and hallux valgus. Additionally, as discussed above, in July 2015 testimony, and in other statements, the Veteran has asserted his left foot disability onset during service and continued thereafter. The Veteran is competent to report as to observable symptoms, such as foot pain, because such is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran's July 2015 testimony and other statements regarding the onset of his left foot disability during service to be credible and such is afforded significant probative weight. Additionally, although some evidence, such as an April 2009 VA treatment record documented, in part, the Veteran had had foot pain for five to six years, which had worsened in the past week, other records, such as a May 2009 VA treatment record, noted, in part, the Veteran complained of bilateral painful bunions on his feet, which had been present since service. Similarly, a December 2015 VA treatment record documented, in part, the Veteran reported foot pain for 35 years. Moreover, as the evidence shows that the Veteran has degenerative joint disease of the first metatarsal phalangeal joint, a form of arthritis, 38 C.F.R. § 3.303 (b) is a possible avenue for substantiating the claim because arthritis is listed as a chronic disease under 38 C.F.R. § 3.309 (a). Further, in July 2015 testimony, the Veteran generally denied any post service injuries, nor is such otherwise reflected in the record, which weighs against a finding as to any incurrent cause. Additionally, while no service treatment records exist documenting a left foot injury other than issues noted in the February 1975 and March 1975 service treatment records, in July 2015 testimony the Veteran explained, in part, that he did not see a doctor after hard parachute landings, that except for a single instance, because if a person acted weak they would not make it there too long, so he had to just kind of lick his wounds and keep going. Further, although no treatment records exist from during the applicable presumptive period, in July 2015 testimony the Veteran referenced, in part, the high cost of seeking private medical care, which may explain why no such records have been obtained by VA. Given the evidence outlined above, the Board is of the opinion that the point of relative equipoise has been reached in this matter. The evidence of record including June 2021 VA opinion, coupled with the Veteran's competent and credible reports of left foot problems since his documented in-service left foot injury, leads the Board to conclude that the Veteran's current left foot disability is related to active service. Accordingly, resolving all doubt in the Veteran's favor, service connection is warranted for a left foot disability, best characterized as pes planus, hallux valgus, plantar callus, and bunion, with first metatarsal phalangeal joint degenerative joint disease. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.120; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a right knee disability 3. Entitlement to service connection for a left knee disability The Veteran asserts that he has a right knee disability and a left knee disability which are related to his active service. Specifically, in his November 2009 informal claim for service connection, the Veteran indicated his knee disabilities were due to his airborne service activities. Additionally, in a May 2010 statement, the Veteran described, in part, that he injured his bilateral knees during service completing parachute jumps, and that over time, these injuries worsened. During a May 2010 VA examination, the Veteran reported his knee conditions started in the service around 1975, when he injured his knees jumping out of planes, and that he was seen for this condition around 1978 or 1979. In July 2015 testimony, the Veteran described hard parachute landings during his service, resulting in pain, specifically pain which felt like his bones shattered. During the December 2015 and January 2020 VA examinations, the Veteran reported he developed bilateral knee pain in 1974, after he completed airborne school. Specifically, he reported he completed 11 parachute jumps, which were all combat equipment jumps, and that he had had some hard landings with his jumps and was dragged over some roots on the drop zones. During the December 2015 and January 2020 VA examinations, the Veteran also stated that a cart with file cabinets fell on his back and he landed on his knees. During a June 2021 examination, the Veteran reported, in part, he began having pain in both knees in 1976, shortly after separation, and that the pain was due to airborne operations, as he landed on asphalt a couple of times and "bad terrain." The initial threshold question for the Board is whether the Veteran has a current right knee disability, or a left knee disability, and if so, whether that disability began during service, is a qualifying disability which manifested to a compensable degree within a presumptive period or was noted in service with attributable continuity of symptomatology. As to the existence of a current disability, a May 2010 VA examination report documented right knee imaging provided an impression of minor degenerative spurring and medial joint space narrowing and left knee imaging provided an impression of mild bony spurring with slight narrowing the left medial joint space. The May 2010 and December 2015 VA examiners endorsed a diagnosis of bilateral knee degenerative joint disease. The January 2020 VA examiner endorsed a diagnosis of bilateral knee degenerative arthritis and the June 2021 VA examiner endorsed a diagnosis of bilateral knee degenerative arthritis, other than posttraumatic. The diagnoses endorsed by the May 2010, December 2015, January 2020 and June 2021 VA examiners are generally consistent with the Veteran's other medical records. For example, VA treatment records dated from January 2017 through August 2021 noted degenerative joint disease of the knees. Thus, the Veteran is acknowledged to have a current bilateral disability, best characterized as degenerative joint disease. Thus, the question becomes whether the Veteran's current bilateral knee degenerative joint disease is related to service. On this question there is probative evidence in favor of and against the claims. The evidence against the claim consists of VA opinions dated in May 2010, March 2018, December 2015 and January 2020, which found the Veteran's bilateral knee disability was less likely as not caused by service, to include parachute jumping. Essentially, the May 2010, March 2018, December 2015 and January 2020 VA examiners primarily relied on a finding that the Veteran's service treatment records, including his June 1975 separation examination, did not document complaints as to either knee. The January 2020 examiner also noted, in part, that the Veteran's radiographic findings of bilateral knee mild degenerative joint disease, in May 2010, were less likely caused by a parachute injury in service, some 35 years later, and that according to specific medical literature, trauma to a joint was more likely to develop into early onset degenerative joint disease, rather than developing many years later. However, the prior Board remands found the May 2010, March 2018, December 2015 and January 2020 VA opinions to be inadequate, and thus, further discussion of these opinions are not warranted. Pursuant to the April 2021 Board remand, a June 2021 VA examiner found the Veteran's bilateral knee condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As a rationale, the June 2021 VA examiner found there was no documentation of an evaluation, diagnosis, or treatment of a knee condition while in service. The June 2021 VA examiner also explained airborne operations had their own unique hazards and risks, and mishaps could occur while exiting the aircraft and/or during descent, but more often injuries were a result of improper parachute landing fall (PLF). The June 2021 VA examiner further explained, while PLF injuries were usually minor, they could result in permanent disabling injuries, and regardless if the injuries were minor or major, they reduced a unit's combat power on the battlefield. The June 2021 VA examiner noted the Veteran only spent 10 months on active duty, was discharged in 1975, and his first mention of knee pain was in 2010, which was 35 years after service. The June 2021 VA examiner also found if the Veteran's claimed knee pain was due to service, it would seem plausible that he would have sought treatment within that 35 years. The June 2021 VA examiner also noted the Veteran's initial VA examination visit in 2006 had no mention of knee pain nor a knee condition and his exit physical did not mention knee pain or a knee condition. However, the June 2021 VA examiner's opinion does not account for the Veteran's contention that he deliberately did not seek medical care during service due to his perception of the prevailing norms against seeking care. As discussed above, in July 2015 testimony, that the Veteran reported he did not see a doctor after a hard parachute landings because if a person acted weak they would not make it there too long, so he had to just kind of lick his wounds and keep going. Additionally, during a December 2015 VA examination, the Veteran reported he had not been seen at sick call for his knees, as typically paratroopers do not go to sick call. Further, during the December 2015 VA examination, the Veteran reported he was seen by a civilian doctor before being seen by VA in 1978; however VA treatment records beginning in 1978 are not current of record. Further, in July 2015 testimony, the Veteran referenced, in part, the high cost of seeking private medical care, which may explain why no such records have been obtained by VA. Moreover, during the January 2020 VA examination, the Veteran also reported his knees hurt in service so he self-treated them, and that after separation from service, the knee pain would come and go, then got gradually worse. Further, the June 2021 VA examiner's finding that the first mention of knee pain was in 2010, is factually inaccurate, as a knee pain was mentioned in a February 2009 VA treatment record. Thus, due to these deficiencies, the June 2021 VA opinion lacks probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The evidence in favor of the claim includes the Veteran's representative's argument, supported by medical evidence, that a knee injury may lead to arthritis. Specifically, in a September 2020 IHP, the Veteran's representative cited a study which showed recent knee injuries were associated with accelerated knee osteoarthritis. Driban J.B., Eaton C.B., Lo G.H., Ward R.J., Lu B., McAlindon T.E.: Knee Injuries Are Associated with Accelerated Knee Osteoarthritis Progression: Data from the Osteoarthritis Initiative, Nov. 1, 2015, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4211979/. In the September 2020 IHP, the Veteran's representative also cited to a news article for the proposition that osteoarthritis of the knee was more common in people who had had injuries to the ligament or the cartilage that helped stabilize the knee joint. See https://www.reuters.com/article/us-health-knees-injury/knee-injuries-tied-to-increased-risk-of-arthritis-idUSKCN1T02MN (last visited Nov. 9, 2019). Additionally, in an August 2021 IHP, the Veteran's representative cited to a medical article for the proposition that arthritis could develop after a knee injury, and that symptoms could appear several years later. See https://www.healthline.com/health/osteoarthritis/knee-arthritis-symptoms (last visited Nov. 9, 2019). While this medical evidence does not address the specifics of the Veteran's case, the evidence does tend to reflect that a knee injury may lead to arthritis, which plausibility supports that claim in that an in-service knee injury, such as from a hard parachute landing, could lead to arthritis. Moreover, as the evidence shows that the Veteran has degenerative joint disease of each knee, a form of arthritis, 38 C.F.R. § 3.303 (b) is a possible avenue for substantiating the claim because arthritis is listed as a chronic disease under 38 C.F.R. § 3.309 (a). As discussed above, in July 2015 testimony, in other statements, the Veteran generally reported his bilateral knee disability onset during service and continued thereafter. The Veteran is competent to report as to observable symptoms, such as knee pain, because such is capable of lay observation. See Layno, 6 Vet. App. at 469. Further, in July 2015 testimony, the Veteran generally denied any post service injuries. In this regard, a June 2009 VA treatment record noted the Veteran was in a motor vehicle accident which caused a knee injury. However, knee pain, albeit with a documented onset of less than six months, was also noted in a prior February 2009 VA treatment record, which weighs against a finding as to any incurrent cause. Further, other records, such a May 2010 VA treatment record documented the Veteran reported bilateral knee pain for 27 years, and his knees started giving way eight years ago. Also, a December 2015 VA treatment record documented, in part, the Veteran reported bilateral knee pain for 35 years after parachute jumping and when file cabinets fell on him. An October 2019 VA treatment record noted, in part, Veteran reported that when he was in the military some filing cabinets fell on him and injured his thighs and knees, resulting in chronic pain. Thus, the Board finds the Veteran's July 2015 testimony and other statements, regarding the continuity of his bilateral knee problems during and since service to be credible and such is afforded significant probative weight. Given the evidence outlined above, the Board is of the opinion that the point of relative equipoise has been reached in this matter. The evidence of record, including medical evidence discussed above, coupled with the Veteran's competent and credible reports of bilateral knee problems during and since his service, leads the Board to conclude that the Veteran's current bilateral knee disability is related to active service. Accordingly, resolving all doubt in the Veteran's favor, service connection is warranted for bilateral knee disability, best characterized as degenerative joint disease. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.120; Gilbert, 1 Vet. App. at 55. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.