Citation Nr: 21022478 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-39 281 DATE: April 15, 2021 ORDER Entitlement to service connection for residuals of a left foot injury is DENIED. FINDINGS OF FACT The preponderance of the evidence is against a finding that the Veteran’s current left foot condition was incurred in, or aggravated by, active service in the United States Army. CONCLUSIONS OF LAW The criteria for entitlement to service connection for a left foot disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January to May 1972. Additionally, the Veteran served in the Nebraska Army National Guard. The Board notes that the Veteran’s substantive appeal included a claim for service connection for a right wrist disability. Upon further development, the agency of original jurisdiction (AOJ) subsequently granted the Veteran’s claim for service connection for a right wrist disability on March 28, 2020. Therefore, as this is a full grant of the benefit sought, the Veteran’s claim for service connection for a right wrist disability is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Entitlement to service connection for the residuals of a left foot injury is denied. In January 2014, the Veteran submitted a statement on a VA Form 21-0958. Thereby, the Veteran initiated a claim for service connection for the residuals of a left foot injury. The Veteran relayed that he incurred a “major injury” to the big toe region of his left foot while on active duty. Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, the Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In June 2011, VA correspondence was associated with the claims file. Therein, VA reported that it was unable to locate and/or obtain the Veteran’s service treatment records (STRs). In June 2011, Formal Finding of Unavailability of Service Records was associated with the claims file. In March 2014, the Veteran treatment records from the VA Nebraska-Western Iowa Healthcare System (NWIHS) were associated with the claims file. Therein, it was reported that the Veteran incurred fractures to the distal phalanx of all five left foot toes on January 23, 2014. At that time, the Veteran reported that a car lift fell on his left foot at home. The medical record does not discuss any history of injury of the left foot prior to this incident. In June 2014, correspondence from VA was associated with the claims file. Therein, VA notified the Veteran, and his representative, that evidence could be submitted to substitute for the unavailable STRs. VA identified the types of evidence that could be supplied in substation of the unavailable STRs. In November 2014, the Veteran supplied sworn testimony to a decision review officer (DRO). At that time, the Veteran testified that a fellow soldier dropped a large-caliber machine gun on his left foot during maneuvers on active duty. The Veteran reported surgery on his left foot at hospital on Fort Dix. When questioned by his representative, the Veteran the confirmed that there was no contra-indications or contravening evidence for the current left foot problems after he separated from the United States Army. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. See 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In December 2014, a VA Form 21-3101 was associated with the claims file. Therein, a request for Veteran’s left big toe and/or foot surgery records at the Fort Dix Army hospital, between January 1st and March 31, 1972, was sought. The following response was provided: “no records were located.” In April 2016, the Veteran and his wife supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). At that time, the Veteran testified that a fellow soldier dropped a large-caliber machine gun on his left foot during a march in January or February 1972. The Veteran testified that surgery was performed, crutches were supplied, and he was on light duty for two or three weeks for this left foot injury. When questioned by his representative, the Veteran confirmed that he endured no subsequent injuries to his left foot after the in-service incident. In May 2018, the Board addressed the issues listed on the title page. At that time, the Board remanded the claim to AOJ for additional development. The Board directed the AOJ to obtain a VA examination report that addressed the etiology of the any currently endured left foot disorder. In November 2019, the Veteran underwent a VA examination that addressed the nature and etiology of foot conditions. The VA examiner relayed that a January 2014 orthopedic note documented acute fractures of 5 toes when a heavy piece of equipment fell on the left foot. The VA examiner relayed that the medical records did not note a pre-existing left foot problem. The VA examiner noted a 2014 diagnosis for distal phalanx fractures of the five left foot toes. The Veteran supplied the following medical history: “(the Veteran) recalls injuring his left foot in service when he and a fellow soldier were carrying a heavy gun, and it was accidently dropped on his left foot. He states he was hospitalized at Ft Dix at that time, and he describes debridement of the left great toe including the toenail. He recalls being on limited duty and using crutches for a period of weeks following this accident. The veteran initially denied any history of foot injuries in civilian life, but after being reminded the veteran recalled being told he had.” The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury or event. The VA examiner supplied the following rationale: “(t)he veteran's reports on foot injury in service and symptoms following service were given full credence. For purposes of this report I assume he injured his foot in service exactly as he describes, and that this resulted in some residual ongoing pain in ensuing years. However, the medical records provide very good evidence that the veteran's current claimed ongoing left foot issues are due to an unrelated foot injury in 2014 (Orthopedic note 1/29/14). The veteran was seen in Ortho clinic on numerous occasions in recent years, and there was never any documentation of any pre-existing ongoing left foot problem related to service including the 1/29/14 visit which dealt specifically with the left foot. The veteran's current ongoing left foot symptoms and findings are indicative of residual from this 2014 fracture which is unrelated to active duty. (emphasis added)” In April 2020, correspondence from the Veteran was associated with the claims file. Therein, the Veteran posited that another soldier dropped a 50-caliber machine gun on his left big toe during a military unit march in January 1972 at Fort Dix. The Veteran posited that surgery was performed on the toe at a hospital on the base. The Veteran posited that stitches were applied and removed, and he was issued crutches for a left foot injury. The Veteran posited that the in-service injury required him to be careful when buying shoes, because the left foot was longer after the injury. The Veteran relayed that he incurred another left foot injury in 2014. At that time, a car lift dropped on his left foot at home, and his left toes where injured during this mishap. The Veteran relayed that the 2014 mishap led to outpatient surgery on his left foot in Osceola, NE. In April 2020, correspondence from the Veteran’s spouse was associated with the claims file. The Veteran’s wife reported that she witnessed her husband arrive from Fort Dix on crutches in February 1972. At that time, the Veteran relayed that he was injured when a fellow soldier dropped a weapon on his left foot. The Veteran’s wife relayed that the Veteran has always favored his left foot. In August 2020, a statement from the Veteran’s mother was associated with the claims file. The mother posited that she picked up the Veteran while he was on leave from Fort Dix, and he was on crutches with his left foot swinging. The mother posited that the Veteran “always showed a sign of a left foot injury” after active duty service. The Board observes that the Veteran currently maintains a diagnosis for distal phalanx fractures of the five left foot toes. Consequently, the first requisite element for service connection has been substantiated. See Hickson, 12 Vet. App. at 253. The Board notes that the Veteran denied a post-service injury to his left foot during the November 2014 and May 2018 sworn testimony. He also initially denied a post-service injury to the left foot during the November 2019 VA examination. Consequently, the credibility of the evidence supplied by the Veteran has been brought into question. However, the Board observes that the Veteran’s mother and wife have competently asserted that the Veteran arrived on crutches when he returned from Fort Dix in early 1972. Consequently, the Board finds that, despite the availability of contemporaneous medical notations, the evidence reflects that the Veteran suffered a left foot injury while on active duty service in the United States Army. Therefore, the second requisite element for service connection has been substantiated. See id. The Board must deny this service connection claim, while the Veteran, his wife, and his mother are competent to report their observations such as seeing the Veteran’s use of crutches, they are not competent to render an opinion on a complex medical question such as the etiology of the Veteran’s current left foot disability. Moreover, the Board has doubts about the credibility of the Veteran’s statements under oath at his Board hearing denying any post service injury to the left foot despite evidence that he injured his foot in 2014. Further, the Veteran’s initial denial of the postservice injury to the 2019 VA examination also calls to question the credibility of his statements. In this case, there is not a competently identified medical nexus between the in-service injury to the left foot and the currently endured distal phalanx fractures of the five left foot toes. The Board notes that the only competent medical evidence on this issue was supplied by the November 2019 VA examiner. Again, the VA examiner ultimately concluded that, “(t)he veteran's current ongoing left foot symptoms and findings are indicative of residual from this 2014 fracture which is unrelated to active duty.” The Board assigns this opinion great probative weight as it was rendered after examining the Veteran, reviewing the evidence of record, and considered the Veteran’s reported inservice injury. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s claim for service connection for a left foot disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim for   service connection for a left foot disability must be denied, because the preponderance of the evidence weighs against his claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.