Citation Nr: 21021018 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-50 935 DATE: April 9, 2021 ORDER Entitlement to service connection for residuals, left foot injury, to include traumatic arthritis of the left foot metatarsal bones, is granted. REMANDED Entitlement to service connection for residuals, left foot injury, to include pes planus and hallux rigidus and valgus is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, traumatic arthritis of the left foot metatarsal bones is attributable to service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals, left foot injury, to include traumatic arthritis of the left foot metatarsal bones, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1989 to February 1993. In January 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to service connection to residuals of left foot injury Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that his left foot arthritis is due to military service. The Veteran has been diagnosed with arthritis of the left foot metatarsal bones. As such, element one under Shedden is met. The Veteran’s service treatment records (STRs) document complaints, treatments, and diagnosis of a left foot injury. As such, element two under Shedden is met. During his October 1988 Report of Medical History, Enlistment exam, the Veteran noted that he did not have foot trouble. However, the examiner noted that the Veteran had asymptomatic mild pes planus. In December 1990, the Veteran was seen for left foot pain due to trauma. The Veteran stated that a valve fell on the top of his left foot. He was unable to bear weight, and there was point tenderness at the mid-1st MTPL. The examiner noted edema. X-ray revealed no fractures or dislocations. The Veteran was prescribed motrin, and was told to ice and elevate his foot. He was place on light duty for one day. During his January 1993 Report of Medical History: Separation examination, the Veteran’s feet were clinically normal. In October 2011, the Veteran was afforded a VA examination to determine the nature and etiology of his left foot disability. The Veteran stated that his injury occurred when his gear fell and hit his foot. He reported left foot pain which occurred constantly. The examiner diagnosed the Veteran with contusion of the left foot, calcaneal spur, and hallux valgus. The examiner opined that the current left foot condition is less likely than not cause by or a result of the one-time December 27, 1990 contusion on the dorsum of the foot. The examiner stated that no further problems were noted, and the Veteran’s January 1993 exam was normal and without complaints. In April 2015, the Veteran was afforded another VA examination to determine the nature and etiology of his left foot disability. The Veteran’s condition began during service. He sought medical help, and, after a few days, the condition resolved. He stated that his foot continued to hurt especially when walking for long periods of time. The Veteran was diagnosed with left foot arthritis. The examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran’s STRs indicated that the Veteran had left foot pain in service. However, there was no documentation of recurrent left foot pain during service. The examiner further stated that there is no evidence that the Veteran received treatment for left foot symptoms for several years after discharge, and there is no documented evidence available of continued left foot pain following discharge. The examiner stated that the Veteran’s current condition appeared to be a separate condition and not related to the events in service. In September 2020, the Veteran saw a private physician. The Veteran stated that in 1990, at the Philadelphia naval yard, a 40-pound gear rolled off of a shelf and landed on the top of his left foot, injuring the metatarsals of the pinkie, second, third, and fourth toes and the metatarsophalangeal joint of the big toe. His foot turned black and blue and was swollen. He continued to have pain in that foot. He had a limp caused by his pain. The physician diagnosed and/or confirmed the Veteran’s traumatic arthritis of the left foot metatarsal bones, traumatic arthritis, hallux rigidus left big toe metatarsophalangeal joint, and flat foot diagnoses. The examiner stated that it is more likely than not that the 40-pound metal that hit the top of the Veteran’s foot caused injury to the extensor tendon and metatarsal bones of the dorsum of the left foot. The injury to the extensor tendon of the left foot caused contracture of the tendon, causing tightness and stresses on the toes of the left foot, especially the left big toe. This resulted in traumatic arthritis in the left big toe metatarsophalangeal joint. In January 2021, the Veteran saw his private physician. The physician confirmed the Veteran’s traumatic arthritis of the left foot metatarsal bones, traumatic arthritis, hallux rigidus left big toe metatarsophalangeal joint, and flatfoot diagnoses. The examiner opined that it is more likely than not that the injury to the toes caused an abnormal gait which caused abnormal stressors on the feet, and this continued to cause more injury to the soft tissues of the metatarsal phalangeal joints of the toes. The examiner stated that the injury to the big toe was more severe. The big toe is extremely important in walking and running. The Veteran’s injury caused more antalgic abnormal movement which then caused more pressure on the joints. This caused the cartilage of the joints to be more damaged. The loss of cartilage in the joints then caused the bones in the joints to rub against each other causing osteophytes and arthritis. Based on the evidence of record, the Board finds that the third Shedden element is met. The Board finds the Veteran’s reports as to the onset and continuity of his left foot pain to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board notes that the April 2015 VA examiner indicated that the Veteran’s left foot arthritis is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran’s STRs indicated that the Veteran had left foot pain in service. However, there was no documentation of recurrent left foot pain during service. As such, the Veteran’s current condition appeared to be a separate condition and not related to the events in service. However, the Veteran’s private physician opined that it is more likely than not that the 40-pound metal that hit the top of the Veteran’s foot caused injury to the extensor tendon and metatarsal bones of the dorsum of the left foot. The injury to the extensor tendon of the left foot caused contracture of the tendon, causing tightness and stresses on the toes of the left foot, especially the left big toe. This resulted in traumatic arthritis in the left big toe metatarsophalangeal joint. The examiner also stated that the injury to the toes caused an abnormal gait caused abnormal stressors on the feet, and continued to cause more injury to the soft tissues of the metatarsal phalangeal joints of the toes. The loss of cartilage in the joints then caused the bones in the joints to rub against each other which also caused osteophytes and arthritis. The Board finds that the evidence is in relative equipoise and that service connection for left foot arthritis, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND The Veteran has been diagnosed with residuals, left foot injury, to include pes planus and hallux rigidus and valgus. The Board notes 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 the 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. 38 U.S.C. § 1111. The record reflects that the Veteran’s pes planus was noted on his entrance exam. Thus, a claim of service connection for pes planus will be considered on the basis of aggravation of a pre-existing disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. For the presumption of aggravation to arise, the evidence must show that there was an increase in the severity of the Veteran’s pes planus during service. In September 2020 and January 2021, the Veteran’s private physician opined it is more likely than not that wearing combat boots and being on the ships for many years on hard metal plates caused stresses on the muscles and tendons of the arches of the feet, causing flattening of the arches of the feet. However, the physician did not acknowledge that flat feet were noted at entry, or opine as to whether the Veteran’s pes planus was aggravated beyond its natural progression as a result of active service. As such, the Board finds that a remand is necessary in order to obtain a VA examination to determine whether the Veteran’s current pes planus was aggravated beyond its natural progression by service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (an examination must be based on an accurate factual premise). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any updated VA and private treatment records not already of record. 2. Schedule the Veteran a new VA examination with an appropriate examiner to determine the etiology of the Veteran’s left foot disabilities, to include pes planus and hallux rigidus and valgus. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be conducted. Based on a review of the entire record, the examiner should respond to the following: i. Identify any left foot disorder that has been present during the period on appeal. The examiner should specifically account for the presence or absence of each of the foot disabilities identified above. ii. Determine if it is at least as likely as not (a 50 percent or greater probability) that any diagnosed left foot disorder had its onset during active service or is otherwise related to the Veteran’s military service. iii. With respect to any diagnosed pes planus, the examiner is asked to opine whether the Veteran’s pes planus, which was noted on entry, underwent an increase in severity beyond the natural progression of the disability in service. If the examiner determines that there was an increase in the severity of the disorder during service, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progression of the disease. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide the required opinion, he or she should explain why the required opinion cannot be provided. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.