Citation Nr: 21014919 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-09 171 DATE: March 16, 2021 ORDER Entitlement to service-connection for a right foot condition, to include osteoarthritis and hallux valgus, is granted. Entitlement to service-connection for a left foot condition, to include osteoarthritis and hallux valgus, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s right foot condition was at least as likely as not aggravated beyond its natural progression by service. 2. The preponderance of the evidence is against finding that the Veteran’s left foot condition was aggravated beyond its natural progression by service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service-connection for a right foot condition, to include osteoarthritis and hallux valgus, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria for entitlement to service-connection for a left foot condition, to include osteoarthritis and hallux valgus, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served a period of active service from September 1963 to March 1964, with additional service periods in the Army National Guard up to July 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in April 2019. This matter was previously before the Board in August 2019, April 2020, and October 2020, when it was remanded for further development. 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). 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. § 4.3. Here, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s current right foot disability was aggravated beyond its natural progression by the Veteran’s active duty service. However, the preponderance of the evidence is against a finding that the Veteran’s left foot disability was aggravated beyond its natural progression by the Veteran’s active duty service. The Veteran’s July 1963 enlistment examination is clear that the Veteran possessed a preexisting foot condition. The examination checklist notes “foot trouble,” but no foot deformity or swelling or painful joints. Remarks on the examination documentation specifies: “history of mild osteoarthritis of 1st [metatarsophalangeal, or MTP, joint] present for past 7-10 years. Occasionally has mild discomfort after long marches. No progression, no sequalae.” The exam further details that the Veteran’s 1st MTP joint is without tenderness or deformity and has good range of motion. In other medical records, the Veteran reported that he noticed a “bump” on his right big toe when he was 14. However, military service treatment records did not indicate that there was any such bump at the time when he enlisted at age 22, again highlighting that there was no deformity to his feet on enlistment. Therefore, the Veteran’s bilateral foot condition at the time of enlistment, characterized as osteoarthritis which caused intermittent discomfort but without progression or deformity, was duly noted in examination documentation. In November 1963, the Veteran’s service treatment records reflect that he sought medical attention for injury to the right big toe. Records indicate that the right toe was enlarged, sore, and abnormal in shape. The examiner at the time diagnosed him with remote trauma with secondary degenerative changes: “probably old injury to this area and osteoarthritis.” Following this incident, the Veteran’s March 1964 separation exam checklist now, unlike at enlistment, noted that the Veteran had swollen and painful joints and foot deformity. Remarks added: “arthritic joint on right big toe, present for 7-8 years. Sometimes causes discomfort.” The Veteran contends that his current bilateral foot disability, to include both osteoarthritis and hallux valgus, was aggravated by the excessive marching, hiking, and other activities done in basic training. He claims that these in-service activities resulted in injury that that permanently worsened the Veteran’s condition in both feet. Because the Veteran’s record clearly indicates that the Veteran had a pre-service foot condition, the particular issue at hand is whether the Veteran has made a sufficient showing that his service increased the underlying severity of his disability such that the assumption of aggravation may be attached. The Veteran has provided private records to support his claim. In December 2000, the Veteran sought medical attention from a private physician due to continued pain in his feet that he said had persisted since service. It was at that point that the Veteran was diagnosed with hallux valgus of the right MTP joint in addition to the preexisting osteoarthritis in both feet. Later, in February 2007, the Veteran’s record for the first time reflects a diagnosis of hallux valgus in both feet. A May 2015 examination from a private provider stated that “the Veteran’s bilateral foot problem was “certainly was aggravated by this activity and that is when he began to have pain in the military,” referencing the extensive marching and hiking done in basic training. Opinions from VA examiners in February 2020 and November 2020 declined to find that the Veteran’s preexisting foot disability had worsened in service. Both examiners relied upon the fact that the Veteran had experienced a “bump” on his right toe at age 14, finding that this bump correlated with the deformity he presented with during service. They also highlighted that he did not have records containing complaints about his feet until several years after service. The November 2020 opinion further argued that the “Veteran’s pre-existing foot condition was right hallux valgus with [degenerative joint disease]” and that the symptoms the Veteran experienced were not indicative of aggravation of these underlying disorders. Instead, they were simply the same swelling and pain that many soldiers commonly experience during active service. Unfortunately, all the medical opinions of record contain some type of procedural flaw which limits the amount of weight that they may individually bear on the Board’s determination. As to the March 2015 private record in support of service-connection, the provider does not make any indication that he or she has reviewed the Veteran’s medical records prior to making that conclusion, this being the reason for the August 2019 remand. As to the VA examinations, the examiners appeared to improperly rely improperly on the absence of contemporaneous records of continuing pain in their assertions that service had not aggravated the Veteran’s condition; the mere absence of contemporaneous medical evidence cannot be the sole basis for determining a claimed disability is not the result of service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, the November 2020 examination was based in part on a few factually incorrect premises. The examiner begins by noting that the Veteran’s preexisting conditions were both osteoarthritis and hallux vagus of both feet, which continued to be reflected in post-service medical evaluations. However, as aforementioned, the Veteran was not diagnosed with hallux valgus in the right foot until December 2000, and in the left foot until February 2007. Further, both February 2020 and November 2020 examiners emphasize the fact that the Veteran reported first experiencing a bunion on his right foot when he was 14, and then experienced it again during service in November 1963 – implying that the bunion itself preexisted service. However, this slightly conflicts with the way the Veteran’s foot disability was recorded in STRs. As discussed above, the Veteran’s enlistment physical only discussed the preexisting osteoarthritis disability and intermittent foot pain; there was no indication of the Veteran’s foot appearing with a bunion or being otherwise deformed at the time of enlistment. Therefore, these medical opinions can also only be afforded limited weight in adjudication. Although none of the opinions individually are perfect, the record as a whole provides sufficient evidence for the Board to make a determination as to aggravation. There is consensus across the record that the Veteran enlisted into service with osteoarthritis, and separated from service with deformity, swelling, and pain of the right toe. While it may be true that the majority of soldiers experience some degree of swelling and pain to the feet while in service, the fact that the record reflects right foot deformity after a November 1963 injury, and that the Veteran was recorded as still having a right foot deformity when he separated from service approximately four months later suggests that some degree of objective persistent damage occurred to the right foot while in service. There is also consensus across the record that the Veteran experienced a bump on his right toe joint when he was 14; however, there no evidence, nor is the argument explicitly advanced, that the Veteran’s bunion at age 14 was the same as that which he developed in service. There is also no explicit evidence of or argument that the bunions were part of a pattern of intermittent and reoccurring bunion development, especially since this deformity was not noted upon entry into military service. In light of all the aforementioned evidence, the Board finds it reasonable to attach the presumption of aggravation to the Veteran’s right foot disability. However, this finding does not attach to the left foot. Unlike the right foot disability which had recorded indictors of worsening during service, the only indicator of injury to the left foot was the Veteran’s subjective report that he experienced pain in his left foot during service at the same time that he experienced pain in his right foot. Because the Veteran had already attested to experiencing intermittent discomfort due to his osteoarthritis before service, this testimony alone is insufficient to support a determination that the Veteran’s underlying disability had been aggravated, as opposed to simply being symptomatic of the preexisting condition. Unfortunately, this precludes the attachment of the presumption of aggravation, and therefore service-connection for the Veteran’s left foot disability cannot be granted as no increase in severity in service is shown. Given the presumption of aggravation as to the right foot disability, the next inquiry is whether there is clear and unmistakable evidence that there was no increase in the severity of the preexisting condition or that any increase was the result of natural progression. However, as detailed above, there was no opinion that provided such evidence; arguments by VA examiners against aggravation did not posit that the worsening of the Veteran’s disability in service was simply part of a pattern of temporary or intermittent flare-ups, and provided only speculation that the Veteran’s in-service complaints were simply symptomatic as opposed to indicative of an increase in the severity of the underlying disability. Additionally, the Board notes the approximate seven-year gap between when the Veteran was diagnosed with hallux valgus in his right foot and his left, suggesting that while the development of hallux valgus may indeed be part of the natural progression of his bilateral foot disorder, the right foot progressed significantly faster than the left, a potential indicator that its progression was indeed worsened. (Continued on the next page)   Considering the totality of the evidence and affording the Veteran the benefit of the doubt, the Board finds that the record is in at least relative equipoise as to whether the Veteran’s right foot disability was aggravated beyond its natural progression by service. However, the preponderance of the evidence does not support a similar finding of aggravation of the Veteran’s left foot. Therefore, the Board accordingly finds that the Veteran is entitled to service-connection for his right foot disability, but service-connection for the left foot disability must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.