Citation Nr: 21029651 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-43 403 DATE: May 14, 2021 ORDER Entitlement to service connection for a bilateral fifth toe disability (characterized as dystrophic, onychauxic, split toenail deformities of the fifth toe associated with a fixed adductovarus position) (the "toe issue") is denied. FINDING OF FACT A bilateral fifth toe disability did not have onset in service, nor is it shown to be related to any aspect of service. CONCLUSION OF LAW The criteria for service connection for a bilateral fifth toe disability (characterized as dystrophic, onychauxic, split toenail deformities of the fifth toe associated with a fixed adductovarus position) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1984 to October 2009. This matter was previously remanded for additional development in September 2018 and October 2020. Entitlement to service connection for a bilateral fifth toe disability The Veteran contends that he is entitled to service connection for a disorder of the fifth toenails of both feet. Service connection may be established 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. 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. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". 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). 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). Initially, the Board notes that a VA examiner in November 2020, following a review of the evidence, examination of the Veteran and clinical testing, indicated that the available objective tests and medical examination showed that the Veteran's toenails were intact and examination of the feet failed to show any skin disability affecting the feet or toenails. The examiner concluded that there was no objective medical evidence to support a diagnosis of a skin disorder or the claimed bilateral split toenails deformities because it was not shown. Therefore, a diagnosis could not be established. While the VA examiner indicated that a diagnosis of bilateral fifth toe disability was not appropriate, thus suggesting the condition may have resolved, the Court has cautioned VA against denying claims for service connection based on the lack of a current diagnosis if there is evidence in the claims file that indicates the veteran has had a disability for which he is claiming service connection at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim). Additionally, when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). An August 2011 VA examination report noted bilateral dystrophic, onychauxis, split toenail deformities of the fifth toe associated with a fixed adductovarus position. The Veteran filed the current claim for VA benefits in May 2010. Accordingly, the discussion below will assume (but not concede) for purposes of argument that the Veteran has a disability. The service treatment records show that on enlistment and periodic examinations in September 1983, August 1988 and October 1994, no feet or skin conditions were reported. A September 1988 treatment note showed acne vulgaris affecting the nose. A clinician in September 2004 noted treatment for a facial rash. Clinical treatment notes in December 2008, March 2009 and June 2009, noted no skin lesion or symptoms. The service treatment records contain no complaints, history or findings consistent with a fifth toe disability affecting the skin and/or toenails, and no related injuries were recorded. After service, private treatment records show that in July 2011 the Veteran's lower extremities and skin were evaluated as normal. In August 2011 a VA examiner noted the Veteran's reports of foot pain secondary to onychauxic and split toenails of the fifth toe. It was noted that this was caused by nail trauma on the lateral borders of the fifth toes. However, the examination did not specifically describe any nail trauma. The examiner also indicated that the split nails were associated with a fixed adductovarus position. The August 2011 examination did not include a medical opinion. While private treatment records in December 2013, reflect complaints of foot problems for two months, including pain anterior to left calcaneus on plantar surface, these were attributed to plantar fasciitis with no history of trauma or of the disorder. A diagnosis of plantar fasciitis was noted. The records failed to document dystrophic, onychauxic, split toenail deformities of the fifth toe, nor was a fifth toe condition associated with service recorded. Here, there is no evidence of a bilateral fifth toe disorder in service or for more than a year after discharge therefrom. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many, many, years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record. He has not credibly shown that his claimed bilateral fifth toe disability was incurred in service and continued since service as this is inconsistent with the service treatment records and post-service medical evidence. On the question of a nexus between the claimed bilateral fifth toe disability and service, the evidence weighs against the claim. A VA examination was obtained in November 2019. The examination provided a negative nexus opinion for a bilateral foot disability, including plantar fasciitis and disabilities of both fifth toes. In support of the opinion, the examiner explained that service treatment records failed to show a chronic bilateral foot disability, to include any fifth toe disability. The examiner noted that the Veteran's retirement medical examination in June 2009 mentioned several orthopedic conditions, however, Veteran did not report any foot pain or symptoms related to the claimed condition. Moreover, the condition was not associated with any aspect of the Veteran's service. VA examination and addendum opinion reports were obtained in November 2020 and January 2021, addressing the Veteran's claim for service connection for the claimed bilateral fifth toe disability. On examination, the Veteran reported a history of split nail deformities of the fifth toes since 1998. Following a review of the claims file and an examination of the Veteran, the examiner opined that it was less likely than not that the Veteran's claimed condition, to include dystrophic, onychauxic, split toenail deformity of the fifth toe associated with a fixed adductovarus position, was incurred in or caused by an in service injury, event, or illness. The examiner based the opinion on the fact that the Veteran's service treatment records failed to document any toe complaints. There was no indication that the Veteran ever reported or was treated for any trauma to the foot or toes. Furthermore, the Veteran's reports of rash with diagnosis of tinea corpus in 2004, affected the temples, not the feet. In any event, the condition was treated and appeared to have resolved with treatment as it was never treated or reported again, and there was no indication this condition ever affected the Veteran's toes. Examinations of the Veteran in April 2008 and April 2009 failed to disclose any foot, toe or rash complaints, or any a skin condition. The examiner concluded that while there was documentation of dystrophic, onychauxic, split toenail deformities of the fifth toes in August 2011, it was less likely than not the Veteran's claimed condition was incurred in or caused by service, because no complaints indicative of a toe disability were recorded during service. In sum, a nexus was not be established. The Board finds the 2021 VA examiner's opinion to be highly probative. The opinion was based on a thorough review of the claims file, including the service treatment records and examination of the Veteran, and the opinion is consistent with other evidence of record. Moreover, the examiner provided adequate rationale for the opinion. Accordingly, the VA examiner's opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Significantly, there is no competent medical opinion of record linking the claimed bilateral fifth toe disability to any aspect of the Veteran's service. The Board has considered the statements of the Veteran. He is certainly competent to report as to the observable symptoms he experiences and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the ultimate questions in this case are related to a medical process which extends beyond an immediately observable cause and effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377, n. 4. The Board finds that the specific, reasoned opinion of the VA examiner in 2021 is of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which she relied to form the opinion, and she provided a rationale for the conclusions reached. (Continued on the next page) In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral fifth toe disability, characterized as dystrophic, onychauxic, split toenail deformities of the fifth toe associated with a fixed adductovarus position. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.