Citation Nr: 21013316 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-05 664 DATE: March 9, 2021 ORDER Entitlement to service connection for hammer toes is denied. Entitlement to service connection for bilateral lower extremities condition, to include as secondary to service-connected disability, is denied. FINDINGS OF FACT 1. The Veteran’s hammer toes did not manifest in service and are not attributable to an in-service injury, event, or disease. 2. The Veteran's bilateral lower extremity condition, to include degenerative joint disease of the bilateral knees, is neither proximately due to nor aggravated by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hammer toes are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a bilateral lower extremity condition, to include degenerative joint disease of the bilateral knees, are not met. 38 U.S.C. §§ 1131, 1112, 1116; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1970 to July 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This case was previously before the Board in May 2018, at which time it was remanded for further development. The directives having been substantially complied with; the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Some chronic diseases, including arthritis, may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases) A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service-connected. 38 C.F.R. § 3.310(b). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this matter, the Veteran contends that his is entitled to service connection for hammer toes and a bilateral lower extremity condition, stating that his symptoms began in service or were aggravated by service. The Veteran has alternatively contended that his bilateral lower extremity condition is due to his hammer toes. Evidence The Veteran’s service treatment records (STR’s) are associated with the claims file. The STR’s do not indicate any signs or symptoms of hammertoes. In a July 1970, pre-induction examination, the clinical evaluation revealed normal lower extremities and feet. Also, the examiner indicated that the Veteran could stand on his toes, squat and duck walk without difficulty. See June 2015 STR-Medical, p.5-6. The Veteran also denied ever having swollen or painful joints; foot trouble, paralysis, or trick or locked knee. However, he indicated that at some point in time he had bone, joint or other deformity. The Veteran also indicated that he sustained lacerations to his knees playing football. The Veteran stated his knees did not lock or give out, but he had slight discomfort after prolonged squatting. See June 2015 STR-Medical, p.7-8. In a December 1970 STR, the Veteran complained that both of his ankles hurt. The clinician noted “to podiatry for heel lifts” See June 2015 STR-Medical, p.35. In another December 1970 STR, the Veteran complained of pain in his heels and feet. He had crepitus in the right achilles. He was given a gel cast to the right and achilles pad to the left. See June 2015 STR-Medical, p.11. In a March 1972, report of medical separation examination, the clinical evaluation revealed normal feet and lower extremities. The Veteran also stated to the best of his knowledge that he was in good health. See June 2015 STR-Medical, p.9;17. In a July 2008 VA treatment record, a clinician noted that the Veteran had a past surgical history of left ankle pinning due to fracture, 25 years prior and a right foot surgery (hammer toe). See Medical Treatment Record-Government Facility, p.12. In a September 2008 Social Security Administration record, the Veteran contended that he was worn out and had been working since he was a teen and that 90 percent of time, he worked hard labor. See October 2019 Medical Treatment Record-Furnished by SSA, p.24. In a November 2008 VA treatment record, the Veteran was seen for complaints for painful feet. The Veteran reported that he thought he had plantar warts and had been shaving them down frequently. A clinician noted that the Veteran had surgery on the right foot bunion/ hammertoe seven years prior to this visit. The Veteran reported that his toes were not straight as they were and his current job as a painter required him to be active on his feet. See June 2012 Capri, p.57. In a March 2012 correspondence, the Veteran requested service connection for hammer toes because the condition pre-existed service and was aggravated thereby. In addition, the Veteran indicated both the altered gait caused by his foot disabilities, which caused him to alter his gait and injured his legs. See March 2012 Correspondence, p.1. In a June 2013 hearing before a decision review officer, the Veteran stated that he had hammer toes and knees prior to service. He indicated the hammer toe condition was apparent before he was in-service. He stated that his hammer toe condition began prior to service; he had constant pain and he could not walk correctly. The Veteran further noted that the condition was hereditary from his mother. See July 2013 Hearing Testimony, p.7-8. In October 2019, a Social Security Administration record was submitted, which documented the Veteran’s report that he had pain in his left ankle and foot. He described the pain as aching, stabbing, burning and throbbing. The Veteran reported the pain as occurring continuously, all day. He stated standing for any period of time made it swell and it became very painful. The Veteran reported the ankle was broken in the early 80’s and working on ladders or walking made it worse. See October 2019 Medical Treatment Record-Furnished by SSA, p.13-14. The Veteran reported that he worked as a painter, painting rooms inside and outside of homes; from 1993-2008. He stated that he walked 3 hours a day, stood 3 hours a day, stooped, 3 hours a day; grabbed big objects 4 hours a day, and kneeled and crouched 2 hours a day each. See October 2019 Medical Treatment Record, p. 27. Pursuant to the May 2018 Board Remand, the Veteran was afforded a foot conditions VA examination in November 2019. The examiner noted that the Veteran had a diagnosis of left foot hammer toes, left foot hallux valgus, and bilateral foot degenerative arthritis. The examiner indicated that the Veteran was diagnosed with the left foot conditions in 2008 and the bilateral foot condition in May 2016. The examiner also noted a diagnosis of right foot status post right bunionectomy, diagnosed in 2001. The Veteran was unsure when he was first diagnosed with hammertoes. The examiner noted that the Veteran’s entrance indicated that he could stand on toes, squat and duck walk without difficulty. In addition, the Veteran reported pain in his heels while in basic training and that he had to cut out the heels, forefoot and large toe area due to discomfort. The examiner also noted that the only mention of a foot problem was in a podiatry note that indicated he had achilles tendinitis. However, the Veteran’s STR’s were silent after that, in regard to foot trouble. In addition, the examiner noted that at the time of this examination, the Veteran did not report any pain in the achilles and the Veteran’s 1972 separation examination, did not indicate any foot trouble. The Veteran reported that he was unsure but believed he began seeing a doctor for hammertoes and bunions in the 1980s. The Veteran had surgery on his bunion in 2001 and he was diagnosed with hammertoes in the second through third toes on the left foot, in 2008. The examiner found that there was no diagnosis that could be made of the hammertoe until 2008 and no nexus of care that could be documented until 29 years after service. In addition, the Veteran reported that he had worked in hard labor his entire career, as a welder, in a rebuild shop working on equipment in a coal mine, working as a contractor and as a painter. In addition, during the examination the examiner noted that there was no other lower extremity deformity other than pes planus causing alteration of the weight-bearing line. The Veteran’s condition did not impact his employment. The November 2019 VA examiner found that the Veteran’s hammer toe disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As noted above in more detail, the rationale was that the Veteran’s 1970 entrance examination was negative for hammer toe and he was able to stand on his toes, squat and duck without difficulty. In addition, the examiner noted the Veteran’s reports of foot pain during basic training but only one incident of achilles tendinitis was noted in the Veteran’s STR’s, with STR’s being silent after that one incident. Also, at the time of this examination the Veteran did not report any pain in the achilles, and his separation examination was negative for any foot trouble. Furthermore, the examiner stated there was no documented evidence of a hammer toe diagnosis until 2008. The examiner concluded that the stress of a life of labor on the Veteran’s feet was the likely etiology for his hammer toes. In November 2019, the Veteran was also afforded a knee and lower leg conditions VA examination. The examiner reviewed the claims file, considered the subjective accounts and conducted an evaluation. The examiner indicated that the Veteran was diagnosed with bilateral degenerative arthritis of the knees in 2004. The Veteran reported that he was unsure when he started to develop knee pain, but believed it was sometime during the 1980’s. The Veteran indicated that his knee pain was not related to his feet. The Veteran indicated that he had swelling in his left knee on occasion. The examiner found that the Veteran’s degenerative joint disease was more likely than not due to age and a life of hard labor after the military. The examiner acknowledged that the Veteran reported knee injury (lacerations) due to playing football on his entrance examination. However, the examiner indicated that the Veteran was able to complete his time in-service without knee pain in his STR’s and his separation examination was negative for knee pain or any other lower extremity pain. The examiner noted that while the Veteran had a diagnosis of degenerative joint disease, the Veteran had no complaint of any lower extremity pain except for treatment for bilateral achilles tendinitis, which was not a current diagnosis at the time. The examiner further noted that the Veteran did not claim he had any lower extremity condition caused or aggravated by his hammertoes. The examiner stated that the Veteran used a cane on occasion but had no significant limp at the time. Hammer Toes After consideration of all the evidence of record the Board finds that the preponderance of the evidence is against finding that service connection for hammer toes is warranted. As indicated above, the Veteran has contended that his hammer toes pre-existed service and were aggravated thereby beyond the natural progression of the disease. To this end, the Veteran’s entrance examination does not document the existence of hammer toes. There is one notation of a bone or joint deformity noted on the Veteran’s entrance examination, but this likely refers to his pectus excavatum condition as it is listed in the subsequent page. Unless there is clear and unmistakable evidence to the contrary, the VA must presume that the Veteran was in sound condition except as to those defects, infirmities, or disorders noted at the time of his entrance into service. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304. The presumption of sound condition provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. In this case, the Veteran’s claimed hammer toes were not noted at service entrance. Accordingly, there must be clear and unmistakable evidence that such disorder pre-existed service and was not aggravated during service. In this case, the Board finds that there is no such evidence and that the Veteran is entitled to the presumption of soundness. Therefore, the Board’s analysis must turn to the question of whether the Veteran currently suffers from a hammer toe disability and, if so, whether it began in or is otherwise due to his military service. To this end, the Board finds that the medical evidence demonstrating the absence of nexus between the currently diagnosed hammer toes and the Veteran’s active duty service outweighs the medical evidence suggestive of a nexus. Significantly, the November 2019 VA examiner has found no nexus between the Veteran’s military service and his diagnosed hammer toe disability. Critically, as indicated above, the November 2019 VA medical opinion is based on review of the Veteran’s medical history, as well as interview and physical examination. The Board therefore places significant weight on the findings of the VA examiner as expressed in the November 2019 medical opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The Board acknowledges the Veteran's report that he had hammer toes prior to service. However, the Board places less probative weight that his hammer toes condition is related to any in-service foot pain. The Board notes that the Veteran made contradictory statements regarding his hammer toes. In one statement, the Veteran indicated that the condition occurred prior to service but was aggravated by service and then in his November 2019 VA examination indicated that he was unsure when he developed hammer toes, but thought it was sometime in the 1980’s, which was after he was discharged from service. As detailed above, the November 209 VA examiner found that the Veteran’s hammer toe disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran’s military discharge examination was negative for any foot trouble. Furthermore, the examiner stated there was no documented evidence of a hammer toe diagnosis until 2008. The examiner ultimately attributed the Veteran’s current hammer toe disability to the stress of a life of labor on his feet. Accordingly, service connection on a direct basis is not warranted. The Board has considered the Veteran’s lay assertions in support of service connection. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The general principle that the Veteran experiences some symptoms of pain, which might be a symptom of a disability, has some tendency to establish diagnoses. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, the Veteran’s own assertions of entitlement to service connection concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376; Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio, 606 F.3d at 1382 (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Moreover, the Veteran’s contentions were considered by the November 2019 VA examiner in rendering his negative nexus opinion. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran’s favor when the evidence is in equipoise. Considering the record, including post-service medical evidence, November 2019 VA examiner’s opinion, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for hammer toes. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Left and Right Lower Extremity Condition In this matter, the Veteran contends that he is entitled to service connection for a bilateral lower extremity condition, stating that his symptoms began in service or were aggravated by service. The Veteran has alternatively contended that his bilateral lower extremity condition is due to his hammer toes. With respect to the Veteran’s alternative contention of secondary service connection, the Board notes that service connection has not been established for hammer toes. Accordingly, service connection for a bilateral lower extremity condition on a secondary basis is not warranted. 38 C.F.R. § 3.310. Therefore, the Board will consider whether service connection for a bilateral lower extremity is warranted on a direct basis. The Board notes that the Veteran has asserted that he had a bilateral knee disability, which pre-existed service and was aggravated thereby beyond the natural progression of the disease. See, e.g., the DRO hearing transcript. In this regard, the Veteran’s July 1970 pre-induction report of medical history documented his report that he sustained lacerations to his knees playing football. The Veteran explained that his knees do not lock or bend, but he does experience slight discomfort with squatting. Notably, the July 1970 pre-induction physical examination did not document any knee abnormalities; a diagnosis or defect was not identified as to either knee. In this case, despite his reported medical history at pre-induction, the Veteran’s knees were determined to be sound upon enlistment without documented defects, infirmities, or disorders. Accordingly, the presumption of soundness applies. See 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). The Board has therefore considered whether there is clear and unmistakable evidence that the Veteran’s bilateral lower extremity disorder to include a knee disability pre-existed his military service. In this case, the Board finds that there is no such evidence. Therefore, the Board’s analysis must turn to the question of whether the Veteran currently suffers from a bilateral lower extremity disability and, if so, whether it began in or is otherwise due to his military service. As indicated above, the medical evidence of record shows that the Veteran is currently diagnosed with degenerative joint disease of the bilateral knees. See the VA examination report dated November 2019. With respect to in-service injury, the Veteran’s STRs do not show any complaints of knee pain, aside from the report of slight discomfort with prolonged squatting noted in his July 1970 pre-induction examination. Moreover, the March 1972 separation examination did not document any abnormalities, complaints, or diagnoses with respect to the Veteran’s knees or bilateral lower extremities. Nevertheless, the Board notes that the Veteran is competent to report observable symptoms such as joint pain. See Jandreau. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). As to the question of nexus, as detailed above, the medical evidence demonstrates an absence of nexus between the currently diagnosed degenerative joint disease of the bilateral knees and the Veteran’s active duty service. Significantly, the November 2019 VA examiner has found no nexus between the Veteran’s military service and his diagnosed bilateral knee disability. Critically, as indicated above, the November 2019 VA medical opinion is based on review of the Veteran’s medical history, as well as interview and physical examination. The Board therefore places significant weight on the findings of the VA examiner as expressed in the November 2019 medical opinion. See Bloom, 12 Vet. App. at 187 (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. As detailed above, the November 2019 VA examiner found that the Veteran’s bilateral knee disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran’s military discharge examination was negative for any knee trouble. Furthermore, the examiner stated that the Veteran’s degenerative joint disease was more likely than not due to age and a life of hard labor after the military. As such, service connection is not warranted. The Board has considered the Veteran’s lay assertions in support of service connection. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. The general principle that the Veteran experiences some symptoms of pain, which might be a symptom of a disability, has some tendency to establish diagnoses. See Davidson, 581 F.3d at 1316; Kahana, 24 Vet. App. at 433, n. 4. However, the Veteran’s own assertions of entitlement to service connection concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376; Barr, 21 Vet. App. at 308-9; Falzone, 8 Vet. App. at 403 (lay person competent to testify to pain and visible flatness of his feet); with Clemons, 23 Vet. App. at 6 (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert, 21 Vet. App. at 462 (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio, 606 F.3d at 1382 (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Moreover, the Veteran’s contentions were considered by the November 2019 VA examiner in rendering his negative nexus opinion. Finally, although the record shows a diagnosis of arthritis (degenerative joint disease), there is no probative evidence that arthritis was noted in service with continuity of symptomatology since service that is attributable to the chronic disease, nor is there any indication that arthritis was manifest to a compensable degree within one year of service separation. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran’s favor when the evidence is in equipoise. Considering the record, including post-service medical evidence, November 2019 VA examiner’s opinion, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral lower extremity condition. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.Long-Ellis, 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.