Citation Nr: 21032013 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-35 378A DATE: May 25, 2021 ORDER Service connection for a right leg condition is granted. Service connection for a left foot condition is granted. Service connection for a right foot condition is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's current right leg condition, diagnosed as stress fracture of right tibia and chronic right leg pain, was caused by, or is otherwise etiologically related to active military service. 2. The evidence is in relative equipoise as to whether the Veteran's current left foot condition, diagnosed as mild paresthesias and dysesthesias of the left lower extremity, was caused by or is otherwise etiologically related to active military service. 3. The evidence is in relative equipoise as to whether the Veteran's current right foot condition, diagnosed as mild paresthesias and dysesthesias of the right lower extremity, was caused by or is otherwise etiologically related to active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right leg condition are met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left foot condition are met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right foot condition are met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to May 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded these matters to the Agency of Original Jurisdiction for additional development. A review of the record shows that the additional development was completed, and the Board thus finds that there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The matters have now returned for appellate review. After the October 2018 Board remand, a September 2020 rating decision granted service connection for degenerative arthritis of the lumbar spine and chronic right wrist sprain. As such, these service connection issues are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Additionally, regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310. In order to establish entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim decided herein. 1. Service connection for a right leg condition is granted. The Veteran seeks entitlement to service connection for a right leg condition. He contends that he developed a right leg condition, to include constant right leg pain, due to injuries incurred while on active duty service. See 12/09/2014 NOD. Turning to the evidence, the record contains evidence that the Veteran was diagnosed with a stress fracture of the right tibia upon examination September 2017. 09/13/2017 C&P Exam. Further, the Veteran's VA treatment records contain an April 2019 diagnosis of chronic right leg pain. See 08/01/2019 CAPRI at 15. Thus, the Board finds that the first element of service connection, current disability, has been satisfied. Regarding the second element, in-service incurrence, the Veteran's service treatment records (STRs) show that in June 1985, he complained of right leg pain stemming from an injury incurred while playing basketball. See 05/30/2013 STR Medical. The Board therefore finds the second element, in-service incurrence, is met. As noted above, the Veteran's VA treatment records also contain an April 2019 Physician Progress Note, which shows that the Veteran was diagnosed with chronic right leg pain, characterized as "possible radicular symptoms from his back." See 08/01/2019 CAPRI at 15. As such, the Board finds that the issue of entitlement to service connection for a right leg condition as secondary to service-connected degenerative arthritis of the lumbar spine has been raised by the record. As noted above, the Veteran has current diagnoses of right tibia stress fracture and chronic right leg pain. As noted above, in September 2020, the RO awarded the Veteran service connection for degenerative arthritis of the lumbar spine, effective August 9, 2012. As the first and second elements of a service connection claim are established, the sole remaining question for the Board is whether a nexus exists between the Veteran's current right leg condition and his active duty service. In addition, the Board also finds that the first and second elements of a claim of entitlement to secondary service connection have been met. See Wallin, 11 Vet. App. at 512. However, the Board does not need to reach the third element of secondary service connection as it finds the evidence is in equipoise regarding the nexus element of direct service connection. Pursuant to the October 2018 Board remand, the Veteran was afforded a VA examination and medical opinion in August 2020. 09/07/2020 C&P Exam. Regarding nexus, the examiner opined that there was a positive connection between the Veteran's current right leg condition and his military service. See id. at 5. As rationale, the examiner reasoned that the Veteran had no complaints of a right leg condition prior to service, and that his current right leg condition was related to his complaints of knee pain during service in 1985. See id. The Veteran was afforded another VA examination in October 2020. 10/28/2020 C&P Exam. Regarding nexus, the October 2020 VA examiner opined that it was less likely than not that the Veteran's right leg condition was incurred in or caused by an in-service injury, event, or illness. See id. at 2. As rationale, the examiner reported that the Veteran complained of right leg pain in service in 1985, but this represented an acute injury without evidence of chronicity throughout the remainder of service. See id. After careful review of all the lay and medical evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right leg condition is related to service. As such, service connection for a right leg condition is warranted The Board acknowledges the October 2020 VA examiner's negative opinion as to nexus. However, the Board finds that the evidence is at least in equipoise based on the positive nexus opinion rendered by the August 2020 VA examiner. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board therefore finds that entitlement to service connection for a right leg condition is warranted. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. Service connection for a left foot condition is granted. 3. Service connection for a right foot condition is granted. The Veteran seeks entitlement to service connection for a right foot condition and a left foot condition. He contends that his current right and left foot conditions were caused by frostbite injuries to the bilateral feet incurred while on active service. See 07/01/2016 Form 9. Turning to the evidence, the Veteran was diagnosed with mild paresthesias and dysesthesias of the right and left lower extremities upon examination in September 2017. 09/13/2017 C&P Exam. VA treatment records also confirm that the Veteran was assessed with numbness, decreased sensation, and pain in the bilateral feet at various points in 2019. See 10/03/2019 and 06/25/2020 CAPRI. The Board therefore finds that the first element of service connection, current disability, has been satisfied The Veteran's STRs reveal that he was diagnosed with and treated for frostbite of the bilateral feet in February 1985. 05/30/2013 STR Medical at 30, 32, 52. As such, the second element, in-service injury, is met, and the only question remaining before the Board is whether a nexus exists between the Veteran's right and left foot conditions and his active military service. Pursuant to the October 2018 Board remand, the Veteran was afforded a VA examination for his claimed right and left foot conditions in August 2020. 09/07/2020 C&P Exam. Regarding nexus, the examiner opined that there was a positive connection between the Veteran's right and left foot conditions and his military service. Id. at 5. As rationale, the examiner reasoned that there was no evidence of right or left foot pain prior to military service, and the Veteran was treated for right and left foot pain while on active duty service in 1985. Id. The Veteran was afforded another VA examination in October 2020. 10/24/2020 C&P Exam. The examiner indicated that the Veteran was diagnosed with first degree frostbite of the bilateral feet in February 1985, and his current symptoms included constant coldness and pain to the bilateral feet. Regarding nexus, the October 2020 VA examiner opined that the Veteran's right and left foot conditions were less likely than not incurred in or caused by frostbite during service. See 10/28/2020 C&P Exam. As rationale, the examiner stated that the claims file was silent for evidence of a chronic right or left foot disability in service, and that medical literature does not support first degree frostbite resulting in disability to the feet. See id. at 2. After careful review of all the lay and medical evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right foot and left foot conditions are related to service. As such, service connection for a right and left foot conditions are warranted. The Board acknowledges the October 2020 VA examiner's negative opinion as to nexus. However, the Board finds that the evidence is at least in equipoise based on the positive nexus opinion rendered by the August 2020 VA examiner. As discussed above, the evidence shows a current diagnosis of mild paresthesias and dysesthesias of the right and left lower extremities and an in-service diagnosis of and treatment for frostbite of the right and left foot. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to service connection for a right foot condition and a left foot condition is warranted. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Tremont 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.