Citation Nr: 21027913 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-53 747A DATE: May 7, 2021 ORDER Service connection for hallux valgus of right foot (claimed as bilateral foot condition) is denied. FINDING OF FACT Hallux valgus of the right foot was not present in service or for years thereafter, and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for hallux valgus of right foot have not been met. 38 U.S.C. §§ 1110, 1111, 1153 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1996 to May 2000 and from April 2004 to October 2005. The Veteran testified before the undersigned at a June 2019 Travel Board hearing. The hearing transcript is of record. In October 2019 and November 2020, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for hallux valgus of right foot (claimed as bilateral foot condition) Hallux valgus of the right foot was not diagnosed until many years after service, and there is no competent evidence to establish that any currently diagnosed hallux valgus of the right foot is due to any event or incident of the Veteran's period of active duty. Service treatment records do not show evidence of hallux valgus of the right foot during active duty or at discharge. Post-service treatment records show the Veteran was first diagnosed with hallux valgus of the right foot many years after his discharge. See January 2014 VA foot conditions examination report. However, the evidence does not indicate that the diagnosed hallux valgus of the right foot is due to any event or incident of the Veteran's period of active duty. In this regard, the Veteran was afforded VA examinations for his claimed right foot hallux valgus in January 2014 and January 2020. Both examiners' opinions were found to be inadequate for evaluation purposes. See October 2019 and November 2020 Board remands. The Veteran was afforded another VA examination in January 2021. The RO noted that this examiner's opinion was also inadequate, and requested an addendum medical opinion. See February 2021 request for addendum opinion. An addendum medical opinion was submitted in February 2021. The VA examiner opined that the claimed hallux valgus of the right foot was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In rendering his opinion, the examiner noted the Veteran's reports of foot pain in service, related to jumping out of helicopters and training and sleeping in boots, and his reports of foot pain around 2006 or 2007, a few years after his discharge from service. The examiner concluded that although the Veteran had complaints of foot pain in service, he was able to complete his time in service, and his separation examination did not show any long-term consequences due to his foot pain. There is no contradictory medical opinion of record. The Board notes that service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the lack of evidence of hallux valgus of the right foot during active duty or at discharge and the gap of many years between service and the first notation of hallux valgus of the right foot, the Board does not find the Veteran's accounts of symptoms of hallux valgus of the right foot since service to be credible. As such, the Board finds the February 2021 VA examiner's opinion is supported, and another examination is not necessary. There is no evidence, VA or private, which indicates that the Veteran's hallux valgus of the right foot may be related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of hallux valgus of the right foot, the Board notes that this passage of time weighs significantly against a finding of direct service connection for hallux valgus of the right foot. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that his hallux valgus of the right foot is due to events during his active service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed hallux valgus of the right foot and his active service or events therein, as it would require medical expertise to say that the current hallux valgus of the right foot, identified many years after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his hallux valgus of the right foot. 38 C.F.R. § 3.159 (a)(1), (2) (2019). (Continued on the next page) There is no competent evidence relating the Veteran's hallux valgus of the right foot to any event in his active service. Absent such evidence, the Veteran's claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.