Citation Nr: 21025810 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 13-26 733 DATE: April 29, 2021 REMANDED Entitlement to service connection for a left foot disorder, diagnosed has hallux valgus, is remanded. REASONS FOR REMAND The Veteran had active service from June 1980 to October 1992. The Veteran testified before the undersigned Veterans Law Judge in a February 2017 Video Conference Board Hearing. A transcript of that hearing is of record. The appeal returns to the Board of Veterans’ Appeals (the Board) from January 2018 and April 2020 remands. In its most recent remand, the Board remanded claims of service connection for a right ankle disorder, left ankle disorder, and left foot disorder to afford the Veteran new Department of Veterans Affairs (VA) opinions regarding the nature and etiology of those three disorders. The Veteran received those opinions in May 2020. In an August 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for right achilles tendonitis and left achilles tendonitis. The grant of service connection constitutes complete grants of the benefits sought on appeal, and those two issues are no longer on appeal. In an August 2020 supplemental statement of the case, the AOJ continued the denial of service connection for a left foot disorder. That issue is once again before the Board. Service Connection for a Left Foot Disorder The Board concludes that a remand is needed here to afford the Veteran a new VA examination for his claim of entitlement to service connection for a left foot disorder. The May 2020 VA opinion is inadequate. The examiner concluded that the Veteran’s left foot disorder—diagnosed as hallux valgus in a December 2011 VA examination—was less likely than not due to his active service. The examiner reasoned that February 2013 VA treatment records show that the Veteran’s left foot disorder was due to an injury during a basketball game. According to the rationale, “the medical note in 2013 explicitly states that the injury did not stem from his military service” because the Veteran experienced “‘left foot pain since last night . . . playing basketball . . . when he heard something pop in the left foot.’” The examiner reasoned that there is “little to disprove that his present left foot symptoms are due to his basketball injury.” In so reasoning, the examiner did not reconcile the reliance on a December 2011 VA examination diagnosing hallux valgus more than one year prior to the February 2013 injury. This shows that a diagnosed left foot disorder onset before the February 2013 injury. In addition, the rationale misstates the burden of proof. The Veteran does not have the burden of proving that his left foot disorder is not due to the February 2013 injury. Second, the VA addendum opinion applies an incorrect burden of proof with respect to the Veteran’s in-service duties as a drill instructor. The rationale states that “there is no longitudinal study that this examiner is aware of that of all service members who were drill instructors in the late 80s and early 90s greater than 50% of them (at least as likely as not) went on to develop a chronically unremitting musculoskeletal foot or ankle pathology.” The Veteran need not show that more than 50 percent of his fellow drill sergeants developed musculoskeletal difficulties. The question is whether his current left foot disorder is more likely than not due to his active service, which included a number of years as a drill sergeant. His active service in that role would have involved significant physical exertion. These rigors are not addressed in the rationale for the negative nexus opinion.   The rationale also stresses an absence of treatment records related to in-service treatment for any foot disorders. It states that “without actual documentation of such evidence in his service records no objective association can be made with any present diagnosis.” This rationale ignores the Veteran’s statements that he had foot pain during active service and ignores the character of the Veteran’s duties as a drill sergeant. In addition, the Veteran’s hearing testimony describes the culture among drill sergeants that included enduring pain and eschewing medical treatment. The rationale omitted discussion of these factors when stressing the absence of in-service treatment. Finally, the Board notes that the Veteran attributes his left foot disorder to the rigors of active service. The Veteran is now service connected for the following disabilities: bilateral achilles tendonitis, subluxation of the right knee, arthritis in his right knee, degenerative arthritis in the right foot, and degenerative arthritis of the thoracolumbar spine. No opinion has been proffered on whether the Veteran’s left foot disorder is proximately due to or aggravated by any of his service-connected disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his left foot disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide responses to the following: (a.) Whether there is any evidence to accept or reject the proposition that the Veteran experienced an injury to his left foot or experienced a chronic left foot disorder in service. (b.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran’s left foot disability (diagnosed has hallux valgus) had its onset in-service or within a year of service discharge or is otherwise etiologically related to his active service. The Veteran’s duties as a drill sergeant must be discussed. If no such relationship is found, the examiner is asked to identify what symptoms would have been caused by the presently claimed foot disorder. (c.) Is it is at least as likely as not that a left foot disability proximately due to any service-connected disability(ies). (d.) Is it at least likely as not that the Veteran’s left foot disorder has undergone any incremental increase in disability, regardless of its permanence, due to any service-connected disability(ies)? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Provide a rationale to support the opinions proffered. (SIGNATURE NEXT PAGE) MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.