Citation Nr: 21006646 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-21 019 DATE: February 4, 2021 ORDER Service connection for a bilateral toe disability, to include hammer toes and degenerative arthritis, as secondary to service connected residuals of a fractured right tibia with one-and-a-half inch shortening of the leg (right ankle disability) and right and left knee disabilities, is granted. FINDING OF FACT The Veteran’s bilateral toe disabilities, to include hammer toes and degenerative arthritis, were caused by the service-connected right ankle and right and left knee disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a bilateral toe disability, to include hammer toes and degenerative arthritis, as secondary to service connected right ankle and right and left knee disabilities, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.326. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from August 1965 to August 1968, and from October 1968 to October 1974. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a September 2020 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for a bilateral toe disorder, which is a complete grant as to the issue on appeal, no further discussion of VA’s duties to notify and assist is necessary. Service Connection for a Bilateral Toe Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. An increase in severity of a non service connected disorder that is proximately due to or the result of a service connected disability, and not due to the natural progress of the non service connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non service connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Throughout the course of this appeal, including in testimony at September 2020 virtual Board hearing, the Veteran and representative have argued that one or more currently diagnosed bilateral foot disabilities were either caused or aggravated by a service-connected disability, or are otherwise directly related to service. At the outset, the Board notes that, per a July 2015 VA foot examination report, the Veteran was diagnosed with hammer toes of the right and left toes, and degenerative arthritis of the right toes. As will be discussed below, an addendum opinion was obtained in February 2017. Per the VA addendum opinion report, the VA examiner indicated that the Veteran had degenerative joint disease (degenerative arthritis) in both the right and left toes. Remand to clarify whether X ray evidence supports that the Veteran is currently diagnosed with degenerative arthritis in the left toes is unnecessary, as the Board is granting service connection for a bilateral toe disability in general, and all bilateral toe disability symptoms should be rated by the Agency of Original Jurisdiction (AOJ) upon the return of the instant matter. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Next, having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether the currently diagnosed bilateral toe disabilities, to include hammer toes and degenerative arthritis, were caused by the service-connected right ankle and right and left knee disabilities. At the time of the July 2015 VA foot examination, the VA examiner rendered a negative secondary service connection opinion on the question of whether currently diagnosed right and left toe disabilities were caused or aggravated by the Veteran’s service-connected diabetes mellitus, type II; however, no opinion was rendered concerning whether the service-connected right ankle and right and left knee disabilities caused or aggravated the currently diagnosed right and left toe disabilities. Subsequently, an addendum VA secondary service connection opinion was obtained in February 2017. Per the opinion report, the VA examiner opined it at least as likely as not that the currently diagnosed bilateral toe disabilities were caused by the service-connected right ankle and right and left knee disabilities. The VA examiner explained that stress caused by the service-connected right ankle alone would be expected to have caused the hammer toes and arthritis in the right foot. Further, the VA examiner reasoned that the right and left toe disabilities and symptoms were consistent with altered gait and other complications caused by the service connected right ankle and right and left knee disabilities. In sum, a VA examiner in February 2017 specifically found that currently diagnosed bilateral toe disabilities were caused by the service-connected right ankle and right and left knee disabilities. Absent any medical opinions to the contrary, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for a bilateral toe disability, to include hammer toes and degenerative arthritis, as secondary to service connected right ankle and right and left knee disabilities, on a causation basis, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.