Citation Nr: 21016042 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-01 895 DATE: March 19, 2021 ORDER Entitlement to service connection for bilateral foot disorders is granted. FINDING OF FACT Disorders of the appellant’s feet manifested by toe pain that existed before his service increased during service to include toe, forefoot, and ankle pain and limitation of subtalar joint motion. CONCLUSION OF LAW The criteria for establishing aggravation of preexisting bilateral foot disorders during the appellant’s service have been met. 38 U.S.C. §§ 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant was affiliated with the Army National Guard from February to April 1987. He was on active duty for training (ACDUTRA) that began in March 1987. He has not had active service or other service besides the 1987 ACDUTRA. In April 1994 the appellant submitted a claim for service connection for foot disorders. In rating decisions in July 1994 and January 1995, a Department of Veterans Affairs (VA) Regional Office (RO) denied that claim. The appellant appealed those decisions to the Board of Veterans’ Appeals (Board). In a June 1997 decision, the Board denied the claim. The appellant did not appeal the Board decision. In April 2015 the appellant sought to reopen a claim for service connection for bilateral foot disorders. In a May 2015 rating decision, an RO denied reopening of the claim. The appellant appealed that decision to the Board. In February 2019 the appellant had a Travel Board hearing before the undersigned Veterans Law Judge. In a September 2019 decision, the Board found that new and material evidence had been received. The Board granted reopening of a claim for service connection for bilateral foot disorders. The Board then remanded the reopened claim to the RO for additional VA medical examination and opinion. 1. Bilateral foot disorders The appellant contends that foot disorders began or were aggravated during his service, the 1987 ACDUTRA. He asserts that he did not have any foot injury or chronic foot disorder before his ACDUTRA. He contends that severe foot pain and chronic foot disorders began during the ACDUTRA, after he trained in boots that were too small. In the alternative, he contends that any disorder represented by mild toe and heel pain that he experienced before the ACDUTRA was aggravated during the ACDUTRA. In addition, in support of his service connection claim, the appellant notes that, in the report of a July 1994 VA examination regarding his foot disorders, the examining physician wrote that the bilateral foot disorder is a service connected disability. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. For persons with most types of military service, including active service, there is a presumption of soundness, under which the person is considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable (obvious or manifest) evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. §§101(2), (24), 1111, 1137 (2012); 38C.F.R. §3.304(b) (2019). When, as here, a person had ACDUTRA service only, the presumption of soundness does not initially apply. Rather, service connection for a disability must be established on a direct basis before the presumption of soundness applies. See Paulson v. Brown, 7 Vet. App. 466 (1995); Smith v. Shinseki, 24 Vet. App. 40. In such cases, service connection based on aggravation in service of a preexisting disorder may still be established by showing (1) an increase in disability in service, and (2) that the increase was beyond the natural progress of that disorder. See 38 U.S.C. §1153 (2012); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). On February 21, 1987, the appellant had an examination for enlistment to the Army National Guard. On a medical history report he marked no for history of foot trouble. On the examination the examiner marked normal for the condition of his feet. The appellant was ordered to report to Fort Benning, Georgia, on March 2, 1987, for advanced individual training to begin on March 6. The expected training period was for fourteen weeks or until completion of basic training and military occupational specialty training. On March 2, 1987, at the reception station at Fort Benning, the appellant marked no for injuries or conditions not mentioned at the military entrance processing station. He marked no for serious injuries since his last Army physical examination. On March 6 the appellant had an outpatient treatment visit to have his feet checked. He denied history of trauma to his feet. He reported pain in both feet. The clinician noted pain at the big toe joint in each foot. There was no ecchymosis. Both extremities had full ranges of motion. The clinician’s assessment was extremity pain. The clinician prescribed Motrin and instructed that he not run or march in the next four days. On March 10 the appellant had an outpatient treatment visit. He indicated that the boots he had worn for the preceding week were too small. A clinician referred him to podiatry for boot resizing. In a treatment visit on March 16, the appellant reported problems with his feet for two weeks. The clinician observed evidence of pain with bending of each great toe. Each foot had no edema and no ecchymosis. Each foot had full ranges of motion. In a March 17 podiatry evaluation, the appellant reported that in civilian life he only had pain in his toes. In basic training, he stated, he experienced pain in both feet, worse in the right. He related tenderness, stiffness, and swelling in his feet. The podiatrist noted diffuse tenderness about the ankle and rear foot bilaterally. There was no edema or discoloration. There was a limited range of motion of the subtalar joint in each foot, worse in the right foot. X-rays showed multiple old fractures of the dorsum of the navicular/talus. A Harris Beath view questionably showed obliterate middle facet. The podiatrist diagnosed limited subtalar range of motion and possible tarsal coalition. The podiatrist called for a 90 day profile with no walking over a mile per day and no standing more than 20 minutes per hour. The podiatrist recommended a medical board proceeding to determine whether the appellant’s condition met the physical standards for entrance to service. On March 18 a medical board found that the condition of the appellant’s feet warranted a permanent profile for no running, jumping, physical training, or marching, no walking over a mile per day and no standing more than 20 minutes per hour. The medical board found that, because of the condition of his feet, he did not meet the medical fitness standards for enlistment to service. The board recommended that he be separated from military service. The appellant went on to sign indicating his concurrence with the medical board. He was released from the ACDUTRA and separated from Army National Guard service. A few years after his ACDUTRA, the appellant submitted an excerpt of a 1989 state government vocational rehabilitation report addressing knee pain and a heart condition. In a private cardiac evaluation in March 1989, the appellant reported arthritis in his ankles and toes and cartilage problems in both of his knees. In private orthopedic treatment in December 1989, S. D. C., M.D. discussed problems in the appellant’s knees and feet. The appellant reported pain over the metatarsophalangeal (MTP) joints of both great toes. Dr. C. noted crepitation in those joints. Examination and x-rays showed obvious lipping in both joints. There were mild hallux valgus deformities with bilateral bunions. Dr. C. found a need for anti-inflammatory medications. Dr. C. recommended arch supports and padding for prolonged weightbearing. Dr. C. stated that the conditions of the appellant’s knees and feet could call for limitation to employment that did not require full time weightbearing or heavy physical demands. In private physical therapy in January 1990, the appellant reported a left knee injury in 1983 and further left knee problems from about 1988. A clinician found patellar tendonitis. In April 1994 the appellant first sought service connection and VA disability compensation for bilateral foot problems. He stated that before his Army National Guard service he had occasional soreness in his toes. He noted that he was found fit for duty in his entrance examination on February 21, 1987. He reported that during basic training he experienced foot problems. He stated that he was issued footwear that was too small. He stated that he had bilateral foot pain to the extent that he could not continue his training. He asserted that problems with his feet were exacerbated and aggravated during his ACDUTRA. At the beginning of the report of a VA examination of the appellant in July 1994, the examiner wrote, “This is a service connected disability.” The appellant reported that he had no problems with his feet before his Army National Guard training. He stated that in training he was issued boots that were too small. He reported that he experienced pain in his feet. He related that he was separated from service because the problems in his feet made him unable to participate in training. The examiner found that the areas around the MTP joints of both great toes were extremely tender to even the slightest manipulation. Motion was markedly limited in those joints. The toes had irregular enlargements but no great deformities. The examiner found no other abnormalities of either foot. There were good ranges of motion in the remainder of the joints in the feet and in the ankles. The examiner’s impression was probable traumatic arthritis in the metatarsal digital joints of both great toes, possibly traumatic in origin. In a February 1995 statement, the appellant wrote that his military service left him with bilateral foot pain that continued through the present. He noted that in his military training he was issued boots that were three sizes too small. He asserted that walking and running in those boots in basic training caused the current problems in his feet. In an August 1995 statement, the appellant wrote that wearing boots three sizes too small in military training produced severe bilateral foot pain. He asserted that his bilateral foot problems were greatly aggravated during his service training. In April 2015 the appellant wrote that he did not have any foot or ankle problems before his military service. He reported that training in excessively small boots hurt his feet immediately. He stated that problems with his feet continued thereafter. He asserted that the improperly-sized boots started the problems. In a private orthopedic and occupational medicine consultation in June 2015, the appellant reported having bilateral foot pain, with painful toe joints, for many years. He related severe pain in all of his toes in both feet. He also reported low back pain and bilateral knee pain. He stated that pain in his low back, knees, and feet worsened with prolonged standing or walking. Physician H. S. C., M.D., found full ranges of motion in the appellant’s ankles and toes. Dr. C. observed bunion formation on both great toes. Both lower extremities had 5/5 muscle strength. Ankle jerk tendon reflexes were 1+ and symmetrical. In each lower extremity, side-stepping, toe-tapping, balancing, heel-shin testing, walking on heels, and walking on toes, were done normally. The appellant had a normal gait, normal stance, and normal tandem gait. X-rays showed bunion formation in each great toe. The left foot had a small superior and inferior calcaneal osteophyte and loss of joint space at the first metatarsal phalangeal joint. The right foot had loss of joint space at the first metatarsal phalangeal and interphalangeal joints. Dr. C.’s impression with respect to the appellant’s feet was bilateral foot pain due to bilateral bunion formation. In October 2015 the appellant submitted a medical article regarding bunions. The article indicates that wearing tight, narrow shoes might cause bunions or might make them worse. In an October 2015 statement, the appellant reported that before service he did not have issues with his feet. He stated that in service he was issued shoes that were too small, and he experienced foot pain. He related that the foot pain continued and worsened thereafter. In a December 2015 statement, the appellant wrote that he had bunions when he went into service. He stated that in service wearing issued boots that were too small caused considerable foot pain. He related that his feet continued to hurt thereafter. He contended that the ill-fitting boots in service aggravated his preexisting bunions. In the February 2019 Board hearing, the appellant asserted that before service he did not have any foot injuries or any foot conditions. He stated that in service he ran and walked in boots that were too small by two or more sizes. He indicated that the boots were required on long marches. He related that after about two weeks of training he had onset of bilateral foot pain. He indicated that the pain was so bad that he could not continue training or even walk. He stated that he sought treatment. He reported that his foot problems caused him to be discharged from service without finishing basic training. He related having bilateral foot pain from then on. He stated that after service he sought help from a state vocational rehabilitation program. He indicated that in the 1990s he sought VA compensation. He noted that in a VA examination in July 1994, a doctor said that his bilateral foot pain was service connected. In the September 2019 remand, the Board called for additional VA examination and opinion addressing the nature and etiology of the appellant’s foot disorders. On VA examination in December 2019, the examiner completed VA questionnaires. The examiner reviewed the appellant’s claims file. The appellant reported that in basic training his boots were too tight. He stated that he had pain with walking. He related that he noticed swelling and bunions in both feet. He reported that pain with prolonged standing and walking continued thereafter. On examination, each foot had pain and pain on motion. The examiner noted arthritis in his feet. The examiner found that he had bilateral metatarsalgia diagnosed in 1987 and bilateral hallux valgus diagnosed in 1987. The examiner completed a section of the questionnaire expressing the opinion that the appellant’s foot conditions were less likely than not caused by injury, illness, or events in service. In another questionnaire section, the examiner marked the box indicating that the claimed condition, which clearly and unmistakable existed prior to service, was aggravated beyond its natural progress by an in-service injury, event, or illness. In explanation, the examiner noted the appellant’s April 1994 account of occasional toe soreness before service as evidence that he had foot problems before service. The examiner noted the appellant’s accounts that wearing boots in service training aggravated problems in his feet. The examiner noted that the appellant had bilateral foot pain before service, and that his time in service was brief. The examiner opined that events in service were less likely the cause of his bilateral foot bunions and metatarsal arthritis. In another questionnaire section, the examiner concluded that the appellant’s baseline foot problems at entrance to service were occasional pain. The examiner stated that the appellant’s April 1994 statement showed that baseline. The examiner opined that the current severity of the appellant’s foot disorders was not at least as likely as not aggravated beyond their natural progress. In explanation, the examiner noted that the appellant presently had mild hallux valgus deformity. The examiner stated that this constituted natural progress. In another questionnaire section, the examiner marked the box indicating that the claimed condition, which clearly and unmistakable existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In explanation, the examiner noted the appellant’s report in service of occasional toe pain before service, the symptoms he reported during service, and clinician’s findings during service. The examiner again opined that the appellant’s brief service less likely caused his bunions and metatarsal arthritis. The examiner did not explain how the evidence showed that the disorders were not aggravated in service. In an August 2020 statement, the appellant reasserted that he did not have issues with his feet before his service. He noted that his feet were found to be normal on his service entrance examination. He stated that in service training he was ordered to wear boots that were two sizes too small. He reported that after walking and running in those boots he became unable to walk or to perform any training. He contended that those events in service caused or aggravated problems that led to bunions in his feet. The appellant had only ACDUTRA service, without other active duty, so the presumption of soundness does not initially apply to his claim. During his ACDUTRA, he stated on March 17, 1987, that before ACDUTRA he only had pain in his toes. There is evidence, then, that a disorder manifested by toe pain existed before his service. The appellant’s report during ACDUTRA of bilateral toe pain before ACDUTRA is evidence against initial onset in service of his foot problems. The VA physician who examined the appellant in December 2019 persuasively opined against injury or events in service causing the appellant’s foot disorders. That examiner did not contradict that finding. The greater persuasive weight of the evidence is against direct service connection of the appellant’s foot disorders. Service connection of a preexisting foot disorder, based on aggravation in service, may still be established by showing (1) an increase in disability in service, and (2) that the increase was beyond the natural progress of that disorder. In service the appellant reported that before service he had pain in his toes. He stated that during service he had tenderness, stiffness, and swelling in his feet. Clinicians found in each of his feet tenderness in the great toe joint, the forefoot, and the ankle. A podiatrist found limitation of motion of the subtalar joint in each foot. Based on their findings, clinicians placed him of limited activity profiles. That evidence shows an increase in disability in the appellant’s feet during his ACDUTRA. The December 2019 VA examiner expressed the opinion that during the appellant’s ACDUTRA his bilateral foot disability increased by no more than natural progress. In that opinion the examiner noted the hallux valgus deformity affecting the appellant’s great toes. The examiner did not discuss or mention the symptoms and findings in service regarding his forefeet, subtalar joints, and ankles. In addition, in different sections of the questionnaire, that examiner provided contradictory findings as to whether the appellant’s preexisting foot disorders were aggravated in service beyond natural progress. The VA physician who examined the appellant in July 1994 indicated that the appellant’s bilateral foot disability is service connected. That examiner did not explain that statement. The 1994 opinion supporting service connection and the 2019 opinion against service connection each have significance but also have limitations. The assembled evidence reflects toe pain before the ACDUTRA and pain and impairment in multiple foot areas during ACDUTRA. The Veteran’s accounts of ongoing bilateral foot symptoms and limitations after ACDUTRA are fairly consistent and reasonably persuasive. The evidence supporting aggravation beyond natural progress in service is at least as persuasive and probative as the evidence against aggravation beyond natural progress in service. Giving the benefit of the doubt to the appellant, the Board finds aggravation in service, and grants on that basis service connection for the appellant’s bilateral foot disorders. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. J. Kunz, 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.