Citation Nr: 21016130 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-27 428 DATE: March 19, 2021 ORDER Entitlement to service connection for right leg shortening, to include as secondary to service-connected residuals of left femur fracture and/or inguinal herniorrhaphy is denied. REMANDED Entitlement to service connection for right foot disability, to include degenerative joint disease (DJD) hallux rigidus, hallux valgus, and hammer toes, to also include as secondary to service-connected residuals of left femur fracture is remanded. FINDING OF FACT The probative, competent evidence is against a finding that the Veteran’s right leg shortening is related to service or caused or aggravated by his service-connected residuals of left femur fracture and/or inguinal herniorrhaphy. CONCLUSION OF LAW The criteria for service connection for right leg shortening, to include as secondary to a service-connected residuals of left femur fracture and/or inguinal herniorrhaphy, have not been met. 38 U.S.C. §§ 1110, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1982 to June 1985 and from October 1985 to June 1987. This case comes before the Board on appeal from a July 2011 and August 2015 rating decisions. In December 2018 and September 2020, the Board remanded the issues on appeal to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. Evidence in the record suggests that the Veteran has been diagnosed with multiple right foot conditions; therefore, the Board will broadly construe the issue of service connection for right foot degenerative joint disease (DJD) as a claim for service connection for a right foot disability, to include DJD, hallux rigidus, hallux valgus, and hammer toes. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). 1. Entitlement to service connection for right leg shortening, to include as secondary to service-connected residuals of left femur fracture and/or inguinal herniorrhaphy The Veteran asserts entitlement to service connection for right leg shortening. Specifically, the Veteran contends that his service-connected left femur fracture causes his right leg shortening. Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A review of the Veteran’s service treatment records (STRs) shows no complaints or diagnosis of any right leg condition. Examinations in March 1982 and June 1985 show normal lower extremities and the Veteran did not identify any right leg problems. In a July 2015 VA hip and thigh condition examination, it was shown that the Veteran’s right leg is ½ inch shorter. However, the examiner did not describe the relationship between the Veteran’s leg length discrepancy and the Veteran’s service-connected left hip disability. In accordance with the September 2020 Board remand, the Veteran was afforded a VA examination in November 2020. The VA examiner noted diagnoses of residuals of left femur fracture and right leg shortening. The Veteran reported that, due to several surgeries to his left leg, he has developed shortening of his right leg, which affects his gait. The Veteran denied right leg flare-ups and functional loss. Following the examination, the VA examiner opined that the Veteran’s right leg shortening is less likely than not incurred in or caused by his service. In support of this opinion, the VA examiner reasoned that the Veteran denied any trauma or surgeries to the right leg and that his STRs contain no complaints, treatment, or diagnosis for this condition. The VA examiner also reasoned that the leg length discrepancy could be congenital condition that was found in adulthood. The VA examiner further opined that the Veteran’s right leg shortening is less likely than not proximately due to or the result of the Veteran’s service-connected conditions. In support of this opinion, the VA examiner reasoned that a left hip disability does not cause shortening of the right leg; rather, it would cause shortening of the left leg. In addition, right inguinal herniorrhaphy does not cause shortening of the right leg; the bones of the leg are not affected by hernia surgery. The VA examiner was unable to determine a baseline severity of the Veteran’s right leg shortening. However, regardless of an established baseline, the VA examiner opined that the Veteran’s right leg shortening is less likely than not aggravated by the Veteran’s service-connected conditions. Again, stating that the left hip disability would affect the left leg, not the right, and that hernia surgery does not affect the bones of the leg. The Veteran is competent to state what he experiences through the senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran believes that his right leg shortening is proximately due to or the result of, or aggravated beyond its natural progression by the service-connected left femur fracture and/or inguinal herniorrhaphy, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds the November 2020 VA examiner opinion to be probative, as the examiner is qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). The examiner also provided reasoned rationales for his opinions. Consequently, the Board gives more probative weight to the November 2020 VA examiner’s opinion. Thus, for all the foregoing reasons, the claims for service connection for right leg shortening, to include as secondary to the service-connected left femur fracture and/or inguinal herniorrhaphy, is denied. In reaching the decision to deny this claim, the Board has considered the applicability of the “benefit-of-the-doubt” rule, but it is not for application because the most probative evidence of record is against the claim. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for right foot disability, to include degenerative joint disease (DJD) hallux rigidus, hallux valgus, and hammer toes, to include as secondary to service-connected residuals of left femur fracture is remanded. After a review of all of the evidence, the Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the underlying claim. The Veteran asserts entitlement to service connection for right foot degenerative joint disease (DJD). Specifically, in an August 2014 treatment note, the Veteran was diagnosed with mild DJD of his right foot. The Veteran informed the VAMC examiner that his toes and right foot bother him because he has been favoring his right foot due to his service-connected left femur. A September 2017 VA treatment record notes the results of an MRI, showing metatarsus varus/hallux valgus with first severe metatarsophalangeal DJD. An October 2017 VA treatment record notes right foot hallux rigidus. The VA podiatrist reported that the Veteran has increased dependency on his right foot for push off which would be directly affected by antalgic gait secondary to LLE conditions. A June 2018 VA treatment record notes the results of an MRI, showing metatarsus varus/hallux valgus with first severe metatarsophalangeal DJD with no fracture. In accordance with the September 2020 Board remand, the Veteran was afforded a VA examination in November 2020. The VA examiner noted a diagnosis of right hammer toes. The Veteran reported that, around 1984, a large storage container was placed onto his right foot. The Veteran denied right foot pain, flare-ups, and functional loss. The VA examiner noted a deformity to the right fifth toe. In 1987, the Veteran had his middle phalanges on his fourth and fifth toes removed. Following the examination, the VA examiner opined that the Veteran’s right foot disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the VA examiner reasoned that there is no evidence of right foot DJD on the Veteran’s November 2020 x-ray. Therefore, the Veteran’s medical records do not support any currently diagnosed condition related to the Veteran’s claimed right foot DJD. The VA examiner also opined that the Veteran’s claimed right foot DJD is less likely than not proximately due to or aggravated by the Veteran’s service-connected residuals of left femur fracture. The VA examiner restated that the Veteran does not have a current diagnosis of right foot DJD. It is unclear whether the Veteran currently suffers from right foot DJD. The Veteran’s VA treatment records show diagnoses of right foot DJD, hallux valgus, and hallux rigidus. Meanwhile, his November 2020 VA examination only shows a hammer toes diagnosis. The Board notes that the November 2020 VA examiner did not discuss the Veteran’s VA treatment records showing a right foot DJD diagnosis. Furthermore, because the VA examiner did not find a diagnosis of right foot DJD, he provided negative direct and secondary nexus opinions based on no current diagnosis. Therefore, in consideration of VA’s duty to assist, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an entitlement to service connection for a right foot disability so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Board finds that a new VA examination is necessary to confirm any diagnoses of right foot degenerative joint disease (DJD), hallux rigidus, hallux valgus, and hammer toes. As it relates to arthritis, x-ray and/or imaging studies must be conducted. If a diagnosis for either claimed disability is found, an etiological opinion must be rendered on both a direct basis, and as secondary to the Veteran’s service-connected left femur fracture. The matter is REMANDED for the following action: 1. Schedule the Veteran for a new examination regarding his service connection claim for a right foot disability, to include DJD, hallux rigidus, hallux valgus, and hammer toes, preferably with an examiner other than his November 2020 examiner. The selected examiner must provide an opinion addressing whether the claimed disability is at least as likely as not (50 percent probability or greater) the result of an in-service disease or injury; manifest to a compensable degree within one year of the Veteran’s separation from active service; or proximately due to, or aggravated by, a service-connected disability, to include his service-connected residuals of a left femur fracture. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. If a negative opinion is provided regarding direct service connection, the rationale cannot be limited to a lack of documented treatment in service, or shortly thereafter, and must discuss the Veteran’s lay reports in the context of the applicable medical principles. The secondary service connection opinion must address causation and aggravation separately to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examination report must include a complete rationale for the opinion provided. 2. After completing the above, and any other development deemed necessary, readjudicate the appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.