Citation Nr: 21013508 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-31 043A DATE: March 9, 2021 ORDER Entitlement to service connection for left foot arthritis is denied. REMANDED Entitlement to service connection for amputation of the right fourth toe is remanded. FINDING OF FACT The evidence is against a finding that the Veteran currently has left foot arthritis. CONCLUSION OF LAW The criteria for entitlement to service connection for left foot arthritis have not been met. 38 U.S.C. §§ 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1982 to June 1984. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision dated August 2011 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The Veteran’s appeal has previously been before the Board. In July 2018, the Board remanded the Veteran’s left foot arthritis and amputation of the right fourth toe claims to the Agency of Original Jurisdiction (AOJ) for additional development. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998). Certain chronic diseases, including arthritis, 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. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for left foot arthritis as secondary to bilateral congenital flat feet The Veteran is seeking entitlement to service connection for left foot arthritis as secondary to his bilateral congenital flat feet. Following a thorough review of the Veteran’s medical records, the Board finds that he is not entitled to an award of service connection as he does not have a current disability of left foot arthritis. The claim for service connection was filed in May 2011. The current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). No lay or medical evidence of left foot arthritis exists in the year prior to the filing of this claim; therefore, there is no evidence of a current disability “recent to” the claim. The Veteran contended that his left foot arthritis was secondary to his bilateral flat feet. See Report of General Information dated May 2011 and Appellate Brief dated June 2018. In a June 2011 VA examination, the Veteran complained of pain on prolonged standing and walking with feeling of discomfort. He wore slippers other than dress shoes, which seemed to precipitate his foot pain. There was no swelling. The examiner noted that there was no arthritis in the left foot. He had X-rays taken during the examination that were normal and showed no arthritis. In July 2018 decision, the Board remanded the Veteran’s appeal in order to provide him a VA examination to determine the nature and etiology of any identified arthritis of the left foot. Following this, the Veteran was afforded another VA examination in July 2019. The VA examiner opined, “The Veteran has no left foot arthritis. He does have left foot pain related to his flat feet from service.” The examiner was asked to identify any currently diagnosed left foot disability and specifically determine by x-rays whether the Veteran had arthritis. In response, the examiner provided, “No arthritis on x-ray – all pain is from flat feet.” As arthritis was not shown, the VA examiner was then asked to discuss service treatment showing post-traumatic arthritis on June 27, 1985, and explain how it could have been resolved and/or no longer show any pathology. In response the VA examiner wrote, “This was an error in the original X-ray interpretation-arthritis cannot disappear.” The Board finds that the July 2019 VA examination is adequate, probative of the issue before the Board, and substantially compliant with the July 2018 Board remand. Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board notes that the Veteran claims to have arthritis of the left foot; however, he has not shown that he has medical training or expertise necessary to attribute his foot pain to a specific diagnosis. Moreover, x-ray testing of the Veteran’s left foot has shown that this specific disability has not been present during or since service. To the extent that the Veteran’ reports left foot pain, the July 2019 VA examiner expressly stated that such is due to the Veteran’s service-connected pes planus. As such, the holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) is not for application. The Board finds that the weight of the evidence shows that the Veteran does not have left foot arthritis or any disability of the left foot other than pes planus – a disability for which service connection has already been established. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes that the Veteran has had left foot arthritis during the pendency of the appeal. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for amputation of the right fourth toe as secondary to bilateral congenital flat feet is remanded. Although additional delay in readjudication of the Veteran’s appeal is regrettable, the Board concludes that another remand is necessary to ensure substantial compliance with the Board’s prior remand directive. The Veteran was provided a VA examination in June 2011. At the time of the examination, he complained of pain on prolonged standing and walking with feeling of discomfort and pain in the third, fourth, and fifth toes. He felt that his toes were going out in different directions with popping sensations. He wore slippers other than dress shoes, which seemed to precipitate his foot pain. There was no swelling or limitation of motion of the toes. During the examination, he complained of some pain over the amputation spot of his fourth toe after walking long distances or standing more than 45 minutes. The VA examiner concluded, “In my opinion, the partially amputated fourth toe is not related to his military service. Inasmuch as the amputation was performed last February as a result of infection and gangrene of the toe.” The Veteran underwent another VA examination in July 2014 for amputations. The VA examiner opined, “Veteran’s right foot amputation is less likely than not proximately due to or the result of the Veteran’s service-connected condition. Veteran’s [below knee amputation] BKA is secondary to his chronic, uncontrolled diabetes, not his congenital right flat foot deformity.” In July 2018, the Board remanded the Veteran’s amputation of the right fourth toe claim for a new VA examination. Following this, the Veteran was afforded a VA examination in July 2019. When asked whether any currently diagnosed condition(s) related to the Veteran’s claimed amputation of the fourth right toe is/are at least as likely as not proximately due to or the result of the Veteran’s left foot arthritis, the VA examiner wrote, “The Veteran had amputation of his right 4th toe, caused by MRSA infection. It has nothing to do with any other left foot condition.” In the next section of the opinion, the VA examiner was asked “Regardless of an established baseline, was the Veteran’s (claimed condition/diagnosis) at least as likely as not aggravated beyond its natural progression by (insert “service connected condition”)?” The examiner marked “yes.” Following this, the examiner provided that the Veteran’s left foot flat foot pain was aggravated by his time in service. The examiner was then asked whether any currently diagnosed condition(s) related to the Veteran’s claimed amputation, fourth toe, right foot was at least as likely as not aggravated beyond its natural progression by the Veteran’s service-connected flat feet. The examiner wrote, “The Veteran had amputation of his right 4th toe, caused by MRSA infection. It has nothing to do with any other left foot condition.” However, while the examiner provided a positive aggravation opinion for the Veteran’s left flat foot pain, the Board notes that the Veteran is already service-connected for this disability. Additionally, the Board finds that the aggravation opinion of the July 2019 examiner is inadequate as the rationale does not adequately address whether the Veteran’s disability as a result of the amputation of the right fourth toe was aggravated beyond its natural progression by his service-connected bilateral congenital flat feet. In a September 2019 opinion, a VA examiner opined that the Veteran’s amputation of the right fourth toe was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated, [The Veteran’s] right below the knee amputation (BKA) was caused by methicillin resistant staph infection (MRSA), the same infection that caused amputation of his toe. He did not have an amputation leg or toe in the service. The toe amputation was caused by MRSA and this same MRSA caused the BKA – all this was related to his diabetes and occurred after service. While the July 2019 VA examination and September 2019 opinion are both adequate with regards to whether the Veteran’s service-connected bilateral congenital flat feet caused his amputation of the right fourth toe, the Board finds that a remand is required in order to obtain an addendum opinion as to whether the Veteran’s service-connected bilateral congenital flat feet aggravated his disability as a result of the amputation of the right fourth toe. Accordingly, the Board’s prior remand directive has not been substantially completed, and another remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also, Stegall and Dyment, both supra. Accordingly, the matter is REMANDED for the following action: 1. Request an addendum opinion addressing the Veteran’s amputation of the right fourth toe. In-person examination is not required unless deemed necessary by the examiner. Based upon a review of the entire claims file, the examiner is requested to provide an opinion as to the following question: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability as a result of the amputation of the right fourth toe was aggravated beyond its natural progression by his service-connected bilateral congenital flat feet? (Continued on the next page)   Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran’s statements regarding the onset of his symptoms. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.