Citation Nr: 21028573 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 12-27 665 DATE: May 11, 2021 ORDER Service connection for a right foot disorder is denied. REFERRED The issue of entitlement to service connection for a left foot disorder was raised in a December 2009 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. Right foot hallux valgus, which was noted at service entrance, did not undergo an increase in severity beyond its natural progression during service. 2. A right foot disorder other than hallux valgus, to include degenerative joint disease (DJD) of the first metatarsophalangeal (MTP) joint, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for a right foot disorder have not been met. 38 U.S.C. §§ 1101, 1111, 1112, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1984 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014 and February 2017, the Board remanded the case for additional development and, in February 2019, denied service connection for a right foot disorder. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted the Veteran's and the Secretary of VA's (the parties') Joint Motion for Remand (JMR), which vacated and remanded the Board's February 2019 decision. In February 2021, the Board then remanded the claim for service connection for a right foot disorder for the issuance of a supplement statement of the case, which was issued in March 2021. The case now returns for further appellate review. In this regard, December 2019 JMR instructed the Board to consider whether it has jurisdiction over the issue of entitlement to service connection for a left foot disorder. Thus, in April 2020, the Board declined jurisdiction over such issue since, while it had been raised in a December 2009 statement, it had not been adjudicated by the AOJ. Thus, the Board referred such matter to the AOJ for adjudication. However, to date, such action has not been taken. Therefore, as noted on the title page of this decision, the Board has again referred such matter to the AOJ. Entitlement to service connection for a right foot disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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; 38 C.F.R. § 3.304(b). When a pre-existing disability is noted upon entry into service, the veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In this circumstance, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish an increase in severity of the disability in service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). In this regard, a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to active service. 38 C.F.R. § 3.306(b). Further, the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his current right foot disorder had its onset during active service and continued after service. In the alternative, he asserts that his right foot disorder existed prior to service and was worsened beyond the natural progression during service. However, after consideration of the terms of the JMR, which only found error in the February 2019 decision only insofar as the Board did not address whether it had jurisdiction over a claim for service connection for a left foot disorder, and the entirety of lay and medical evidence of record, the Board again finds that service connection for right foot disorder, to include hallux valgus and mild DJD of the first MTP joint, is not warranted. With respect to the Veteran's right foot hallux valgus, as explained below, the weight of the evidence shows that such was noted at service entrance and did not undergo an increase in severity beyond its natural progression during service. Specifically, the Veteran's October 1983 service enlistment examination reflects notation of right foot hallux vagus with history of foot surgery. Thus, the presumption of soundness as it relates to right foot hallux valgus is not applicable. Consequently, service connection may be granted only if it is shown that such disorder was aggravated by service, i.e., if the pre-existing right foot hallux valgus worsened in severity beyond its natural progression during service. Nonetheless, as no other right foot disorder was noted on the Veteran's service entrance examination, the presumption of soundness attaches and the relevant inquiry is whether such disorder is directly or presumptively related to service. However, the Board finds that the weight of the lay and medical evidence demonstrates that the Veteran's pre-existing right foot hallux valgus did not increase in severity during service beyond its natural progression, i.e., was not aggravated by service, and a right foot disorder other than hallux valgus, to include DJD of the first MTP joint, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year of separation from service. In this regard, the Veteran's service treatment records, which are complete, show no complaints, reports, diagnosis, or treatment for the pre-existing right foot hallux valgus, and the feet were clinically evaluated as normal at the October 1986 service separation examination. Rather, the earliest post-service contention that there was a worsening of right foot hallux valgus during service, and allegation that a separate right foot disorder was incurred in service, is not until 2009, approximately 23 years after service separation. Considered together with the absence of any right foot symptoms during service, the 23-year gap between service and the onset of post-service right foot symptoms is another factor that weighs against finding of aggravation of the right foot hallux valgus during service, or the incurrence of another right foot disorder therein. Furthermore, the questions of aggravation of pre-existing right foot hallux valgus and direct service connection for DJD of the first MTP was considered by a VA examiner in July 2017. After review of the record and examination of the Veteran, the VA examiner determined that the clear and unmistakable evidence showed that there was no increase in the Veteran's pre-existing right foot hallux valgus during service, and such disorder was not increased beyond its natural progression by military service. The examiner also found it to be less likely than not that the Veteran's current DJD was directly related to service. When providing a rationale for the medical opinion, the July 2017 VA examiner explained that the service enlistment examination noted pre-existing right hallux valgus, status post bunionectomy performed in 1983, there were no pertinent service treatment records pertaining to the right foot, and the October 1986 service separation examination was normal for the feet. Finally, there was a significant temporal gap between military service and the 2012 manifestation and diagnosis of DJD, making it less likely than not that such was related to the Veteran's military service. As the July 2017 VA examiner had adequate facts and data on which to base the medical opinion and supported the medical opinion with adequate rationale, it is of significant probative value. There is no medical opinion to the contrary of record. Thus, while the Veteran is competent to relate symptoms of right foot pain and other symptoms that he experienced at any time, in the absence of in-service right foot injury, disease (other than hallux valgus), or symptoms (other than those related to hallux valgus), and given the presence of non-service-related hallux valgus from which any other foot disorder symptoms or impairment would have to be differentiated, the Veteran is not competent to opine on whether there is a link between the (non-hallux valgus) right foot disorder, which manifested many years after service separation, and service, because such diagnosis and nexus require specific medical knowledge and training and the ability to differentiate between foot disabilities and consider diagnostic testing results. For these reasons, the Veteran's purported opinion that the current right foot disorder is the result of service is of no probative value. For the foregoing reasons, the Board finds that the weight of the evidence demonstrates that the preexisting right foot hallux valgus, to include residuals of associated bunionectomy, did not increase in severity during service beyond its natural progressioni.e., it was not aggravated by service. Furthermore, the Veteran's DJD did not manifest to a compensable degree of 10 percent within one year of separation from service, i.e., by November 1987. Finally, no other right foot disorder has been shown to be related to service. Accordingly, the criteria for service connection for a right foot disorder have not been met. Thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against service connection for the right foot disorder, so the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge, 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.