Citation Nr: 21030516 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-35 313 DATE: May 19, 2021 ORDER Entitlement to service connection for a left foot disability, to include hammer toes and acquired pes cavus (claw foot), is granted. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, his left foot disabilities, to include hammer toes and pes cavus, are at least as likely as not a result of his active duty service. CONCLUSION OF LAW The criteria for service connection for a left foot disability, to include hammer toes and acquired pes cavus, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from January 1973 to January 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. These issues were previously remanded by the Board in March 2019. The requested development has been completed; however, a remand is necessary in order to provide an addendum opinion regarding aggravation for the issue of entitlement to service connection for a left ankle disability. The issue of service connection will be addressed on the merits. Entitlement to service connection for a left foot disability. The Veteran seeks service connection for a left foot disability. This issue was previously remanded by the Board in order for the Veteran to be afforded a VA examination and etiological opinion. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). 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. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran was afforded a VA examination in November 2019. The Veteran reported to the examiner that back in 1991, he "stepped in a hole" and that his shoes were too small for his feet. The examiner diagnosed the Veteran with hammer toes and acquired pes cavus (claw foot) of the left foot. Therefore, given the evidence of a current diagnosis, the first element necessary for service connection has been met. As it pertains to an in-service event or injury, the Veteran's service treatment records (STRs) contain multiple complaints of left foot pain, and specifically, there are multiple complaints between January and March 1982. He was diagnosed with plantar fasciitis. His STRs from February 1982 note a lump on the outside of his foot where he was walking. In June 1988, his STRs note a visit to sick bay where the Veteran presented with pain and slight deformity of his second digit, left foot. An injury he sustained after he was struck by a weight in the weight room. In March 1982, the Veteran went before a Medical Board due to a primary diagnosis of left foot plantar fasciitis and pain. The review noted he experienced persistent tenderness of the left foot causing a mild limp. Therefore, given the evidence of multiple in-service complaints in his STRs, the Board finds adequate evidence of an in-service event or injury satisfying the second element necessary for service connection. With regard to the final element necessary for service connection, a nexus, the Board finds his left foot disabilities are at least as likely as not related to his active duty service. An etiological opinion was obtained in July 2020. The examiner stated the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service event or injury. The examiner noted that, although there is extensive STRs for plantar fasciitis, the Veteran's pes cavus can be congenital or idiopathic and would not be expected to result from military shoe wear. Further, hammer toes can occur from improper footwear, however, the examiner noted there is no documentation of symptomatic hammer toes while in service. The examiner opined that, because of the attention turned to his feet due to his diagnosed plantar fasciitis, the use of orthotics would reduce the risk of this disability. The Board finds this opinion to be of little probative value. The opinion is inadequate as it relies on the lack of in-service treatment records to corroborate the Veteran's claim regarding his left foot disabilities. The examiner did not provide an etiological opinion as to the nature and cause of his current disabilities. The Veteran's in-service records document multiple Medical Board hearings for his left foot disabilities and the Veteran has credibly stated ongoing continuity of left foot symptoms. As such, given the Veteran's extensive in-service complaints regarding his left foot disability and resolving reasonable doubt in the Veteran's favor, the Board finds that his left foot disabilities, to include pes cavus and hammer toes, are at least as likely as not related to his active duty service. REASONS FOR REMAND Entitlement to service connection for a left ankle disability is remanded. The Veteran seeks service connection for a left ankle disability. Per the March 2019 Board remand directives, the Veteran was afforded a VA examination in November 2019. The examiner diagnosed the Veteran with left lateral collateral ligament strain and old fracture deformities with calcaneal spur. The Veteran reported that he "stepped in a hole" causing his left ankle disability. An opinion was obtained in July 2020. The examiner stated the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service event or injury. The examiner focused the opinion on the lack of in-service treatment for his left ankle but noted there is evidence of a foot injury from 1972 prior to his active duty service. His entrance examination notes a left foot muscle and tendon pulled in November 1972. The examiner also noted a subsequent unspecified x-ray reported sequelae of a prior left ankle injury, which prompted an additional opinion that there was no evidence that a preexisting left ankle disorder had been aggravated during service. However, given the evidence of a left ankle injury prior to service but no notation of such disability at the time of service entry, the opinion provided regarding aggravation was not adequate. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A pre-existing disability or disease will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). Therefore, the Board finds a remand is necessary to more fully address the theory of aggravation and whether any current left ankle disorder clearly and unmistakably preexisted service and was not aggravated beyond its natural course during active duty service. The matters are REMANDED for the following actions: Obtain an addendum opinion regarding aggravation of any current left ankle disability. The examiner should first opine whether the Veteran clearly and unmistakably has a left ankle disability that existed prior to service. If the Veteran clearly and unmistakably has a left ankle disability that existed prior to service, the examiner should state whether the disability was not clearly and unmistakably aggravated beyond its natural course during service. For any left ankle disability that did not clearly and unmistakably exist prior to service and/or was not clearly and unmistakably not aggravated during service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to service, specifically noting the Veteran's credible contention regarding "stepping in a hole" and injuring his ankle in service. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.