Citation Nr: 21008789 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-55 004 DATE: February 18, 2021 ORDER Service connection for a right foot condition to include pain is granted. FINDING OF FACT The weight of the competent and probative evidence is at least in equipoise as to whether a right foot condition to include pain increased in severity during the Veteran’s period of service and there is not clear and unmistakable evidence that the increase in severity during service was due to the natural progression of the condition. CONCLUSION OF LAW The criteria for service connection for a right foot condition to include pain are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to August 1971. This matter comes before the Board of Veterans’ Appeals on appeal from a June 2015 rating decision issue by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing has been associated with the claims file. The law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In November 2020, the Board sent a letter to the veteran, which explained that the VLJ who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different VLJ. In response, the Veteran submitted a written statement declining a second hearing and requesting his case be decided on the evidence of record. This matter was before the Board in April 2020 and remanded for further development. There has been substantial compliance with remand directives and no additional remands are warranted. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Right foot condition to include pain Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at the time, or where evidence or medical judgment establishes that an injury or disease preexisted service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See id.; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). “If the presumption of aggravation under [S]ection 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing ‘that the increase in disability is due to the natural progress of the disease.’” Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The Veteran contends that his right fifth metatarsal hammer toe noted upon entry to service increased in severity resulting in current right foot disability. The Veteran asserts that a traumatic injury to his fifth metatarsal during service accelerated the normal progression of his preexisting hammer toe. The record contains a competent diagnosis of a right foot disability, to include right toe deformity with scarring and pain. April 29, 2015, VA Examination. The evidence demonstrates that the Veteran was noted to have right fifth metatarsal hammer toe upon entry in service. See March 13, 1969, Report of Medical Examination. The presumption of soundness does not apply. See 38 C.F.R. §§ 3.303, 3.304. Service treatment records (STRs) reveal that in September 1970, the Veteran presented with complaints of pain in his right foot. Radiographic imaging revealed a dislocation at the metatarsophalangeal joint of the right fifth toe. The Veteran was immediately placed on a limited duty physical profile for chronic dislocation right fifth metatarsophalangeal joint with no running and limited standing and walking. See September 15, 1970, Physical Profile Record. The Veteran had a partial phalangectomy with proximal phalanx of the right fifth toe in November. After recovery from surgery, the Veteran’s limited duty physical profile was amended to include no running or jumping and no standing for more than 20 minutes at a time. See December 8, 1970, Physical Profile Record. The Veteran presented with right foot problems again in February 1971, while still under his temporary profile. The clinician determined that the Veteran’s right foot needed reevaluation. A March 1971 podiatry clinic note reveals that other than stretching, the clinician could not suggest any other course of treatment except surgical intervention for the Veteran’s right foot problems. Service treatment records from April 1, 1971, note that the Veteran decided against another surgery and demonstrate that the Veteran was experiencing pain in the surgical scar unrelated to the area of partial phalangectomy. The clinician determined the Veteran was eligible for expiration of term of service (ETS). See September 18, 2006, STR-Medical. After the April 2020 Board remand, an addendum medical examination and opinion was obtained in May 2020. The examiner was asked to opine as to whether the Veteran’s multiple right foot complaints were due to the natural progression of the disease. The examiner opined that the Veteran’s multiple right foot complaints were not due to the natural progression of the disease. See May 12, 2020, VA Examination. The examiner reasoned that the traumatic injury to the right fifth toe altered the natural course of the disease. Id. The examiner further stated that there was no evidence in the records of worsening of pre-existing disease by either the surgery or military service. Id. At the Board hearing, the Veteran testified that he had no wear and tear on his right toe until he came into service and had no prior knowledge that his right fifth hammer toe even existed. The Veteran further testified that he injured his foot when he jumped in a fox hole that had a broken pallet in it. See March 13, 2020, Hearing Transcript. In light of the foregoing, the competent and probative evidence is in equipoise as to whether military service aggravated the Veteran’s preexisting right foot condition. Resolving all reasonable doubt in favor of the Veteran, the presumption of aggravation applies and there is no clear and unmistakable evidence of record to rebut it. The May 2020 VA examiner’s opinion that the preexisting condition was not aggravated by the surgery or military service is given little probative weight as the examiner did not acknowledge and consider all relevant facts. Specifically, the examiner did not consider the fact that a second right foot surgery was recommended four months after the first surgery or that the preexisting condition warranted a limited duty physical profile a year after the Veteran’s entry into service and resulted in the Veteran’s early separation from service. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). The Veteran’s lay statements concerning the onset of his symptoms and traumatic injury are found to be competent and credible evidence of in-service aggravation and afforded high probative weight. See Jandreau, 492 F.3d at 1377. The presumption of aggravation has not been rebutted by clear and unmistakable evidence as even the May 2020 VA examiner admits that the traumatic injury altered the natural progression of the preexisting condition. Service connection for a right foot (Continued on next page) condition, to include pain, based on in-service aggravation is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.