Citation Nr: 21076406 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-02 144 DATE: December 23, 2021 ORDER Service connection for a right foot disability is denied. FINDING OF FACT The Veteran's right foot disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from July 1984 to October 1984, and on active duty from January 1991 to March 1991, and June 2003 to February 2004, with service in the Army National Guard from January 1984 to December 2009. He appeals a January 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board previously remanded the case in April 2020. At that time, the Board noted the Veteran's hearing request had been deemed withdrawn. The issue of service connection for a cervical spine disability was previously on appeal. In an August 2021 rating decision, service connection for the disability was granted by the RO. The issue, therefore, is fully resolved and is no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Service connection for a right foot disability The Veteran seeks service connection for a right foot disability, originally claimed as a right toe disability. In the August 2012 VA examination, the Veteran asserted that he bruised his right big toe in the early 1990's at Fort Hood. He was running in formation and caught his toe on an object in the parking lot. In the July 2021 VA examination, the Veteran asserted that the toe pain began in 1990. There was no specific injury. He attributed the pain to wearing heavy boots every day for extended amounts of time. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has current diagnoses of degenerative arthritis and hallux valgus as evidenced by the July 2021 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records show normal feet on the several examination conducted during the Veteran's National Guard service and active duty service. Such examinations included those in March 1991 and March 2002. The Veteran denied foot trouble in the Reports of Medical History he made at those times. In a January 2004 Report of Medical Assessment, the Veteran reported his health was the same as at list last medical assessment, which was in 2002. He reported not suffering from any injury or illness while on active duty for which he did not seek medical care. In the January 2004 post deployment health assessment, the Veteran denied swollen, stiff and painful joints, and numbness or tingling in feet. In a December 2004 Post Deployment Health Assessment, after his deployment in support of Operation Noble Eagle III, he also denied swollen, stiff and painful joints, and numbness or tingling in feet. In an April 2005 Annual Medical Certificate, the Veteran denied having any medical or dental problems. At most, the service treatment records reveal the Veteran was treated for a blister on his left 5th toe in June 2001. This is not relevant to his right foot. VA treatment records show the Veteran was not diagnosed with hallux valgus until August 2012. This is years after his separation from service and years outside of the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of toe or foot pain during service and since service, the Board finds these reports have less credibility and probative value than the service medical records and National Guard medical records which were recorded at the relevant times under review. As described above, on contemporaneous examinations and by the Veteran's own contemporaneous reports, he was not experiencing problems with his right foot or toe. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Service connection for a right foot disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's degenerative arthritis and hallux valgus and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. (Continued on the next page) The August 2021 VA examiner opined that the Veteran's hallux valgus and arthritis is not at least as likely as not related to an in-service injury, event, or disease. The rationale was the length of time after service in which the Veteran was diagnosed with hallux valgus (2012), as well as the negative official examinations in service, including in March 2002, and otherwise lack of evidence of any foot condition. The examiner also noted no relation of the June 2001 left foot blister to the development of right foot hallux valgus or arthritis, noting that the conditions are anatomically separate and the blister was caused by frictions. For this opinion, the VA examiner obtained a history and considered the Veteran's reported symptoms and statements. The examiners rendered opinion with reasoned medical explanations and analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). While the Veteran believes his right foot disabilities are related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical eduction and skill in determining the etiology of diseases and disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the evidence weighs against the claim, service connection for a right foot disability is not warranted. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.