Citation Nr: 21025318 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-24 253 DATE: April 27, 2021 ORDER Service connection for right foot disability is granted. REMANDED Service connection for left knee disability, to include as secondary to right foot disability, is remanded. FINDING OF FACT The evidence supports a finding that the Veteran’s right foot disability is related to active service. CONCLUSION OF LAW The criteria for service connection for right foot disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1974 to June 1977. These matters come before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In January 2021, the Veteran was notified that the VLJ who conducted his hearing is no longer employed by the Board. He responded that he did not want another hearing and, therefore, the Board may proceed with a decision. In December 2019, the Board remanded the Veteran’s case for additional development. The case has been returned to the Board for review. Service connection for right foot disability Service connection may be established 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Some chronic diseases, such as arthritis, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. The Veteran contends that his current right foot disability is related to service. In October 2019, he testified that he experienced chronic right foot pain and that his foot gave way during service like he had stepped on a rock. First, the February 2020 VA examination report shows that the Veteran has a current disability. The examination report reveals a diagnosis of hallux valgus and the x-ray shows degenerative changes at the metatarsophalangeal (MTP) joint and midfoot and interphalangeal joints. Service treatment records (STRs) show that the Veteran had been diagnosed with plantar warts, plantar callous build-up of the right heel, and parakeratosis of the right heel during his service. However, the Veteran was also seen on separate occasions in October 1975, November 1976, and February 1977, complaining of right foot pain and a sore foot with no associated diagnoses. On separation from active service, the Veteran responded that he had foot trouble. The physician’s summary and elaboration of medical data indicated that the Veteran’s right foot would sometimes give way. The separation examination report shows that the Veteran’s lower extremities were evaluated as normal. Post-service, a VA treatment record dated in 2003 shows that the Veteran reported occasional right foot pain. VA treatment records in 2017 show chronic right foot pain. Private treatment records dated in 2019 indicate chronic right foot pain. In June 2016, the Veteran was first provided a VA examination for his claimed right foot disability. There was no diagnosis provided. The Veteran stated that his right foot hurt while in the service, including giving out. He also reported that he experienced cramping, burning, and swelling the day that he left service. The Veteran noted that he worked for Clean Harbors Environmental Services and was not seen for his foot condition when working the entire 30 years. The examiner provided a negative etiology opinion, finding that the Veteran did not have a diagnosis on active duty for the right foot and he did not obtain treatment for the last 38 years. This opinion is deemed inadequate as the examiner did not address the complaints of right foot pain during service, giving way at separation from service, and that the Veteran complained of right foot symptoms in 2003. A private April 2019 x-ray report shows findings of os trigonum, valgus angulation, pronation, and subluxation of the great toe with a moderate bunion, and small ossicle off medial aspect of the medial cuneiform. A September 2019 letter from Dr. M.G. noted that the Veteran had been seen by doctors at VA and Kelsey-Sebold clinic and that the Veteran had chronic right foot pain for approximately 20 years. In February 2020, the Veteran was provided another VA examination. The report reflects a diagnosis of hallux valgus. In addition, the x-ray report shows mild degenerative changes at the MTP joint and scattered mild degenerative changes of the midfoot and interphalangeal joints. The examiner provided a negative etiology opinion. The examiner noted the diagnoses provided during service and reasoned that the Veteran’s current right foot symptoms were not calluses or parakeratosis. The examiner also noted that the September 2019 letter from Dr. M.G. indicated that the Veteran had pain for 20 years – not since service. While the examiner explained that the current right foot symptoms were not related to the diagnoses provided during service, the VA examiner did not address the report of foot trouble and the notation of giving way of the right foot at separation or the Veteran’s complaints of right foot pain on several occasions during service that were not associated with a diagnosis. Absent a persuasive rationale, this opinion has negligible probative value. Here, the Board recognizes that the Veteran did not objectively report right foot symptoms until the 2000s, decades after separation from service and a private physician indicated right foot pain for approximately 20 years. However, the Veteran has testified that he had symptoms of chronic right foot pain and his foot having the sensation of giving way since service. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991) (finding that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology). Indeed, the STRs show that he reported pain and a sore right foot on several occasions and giving way of the right foot when separating from active service. Given the Veteran’s competent and credible complaints of right foot pain and giving way during and after service, and evidence of a current disability, manifested in part by degenerative changes, i.e. “arthritis,” the Board will resolve reasonable doubt in favor of the Veteran and finds that the continuity of symptomatology has been shown. 38 C.F.R. § 3.303(b). Service connection for a right foot disability is therefore granted. REASONS FOR REMAND Service connection for left knee disability, to include as secondary to right foot disability, is remanded. Because the Veteran’s claim for service connection for right foot disability has now been granted, the Board finds that the Veteran must be provided a VA examination for his left knee disability. The evidence shows a current left knee disability and the Veteran has contended that a fall from the right foot caused his left knee disability. 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his left knee disability. The claims folder must be made available for review. The examiner must opine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left knee disability is caused by active service. In doing so, the examiner must address the Veteran’s testimony that he fell in service and injured his left knee. The examiner must also opine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left knee disability was proximately due to or aggravated by his service-connected right foot disability. In doing so, the examiner must address the Veteran’s report that his right foot caused him to fall and injure his left knee. A full and complete rationale must be provided for any opinion reached. 2. After taking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought remain denied, issue a supplemental statement of the case and return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.