Citation Nr: 21032609 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 19-22 644 DATE: May 27, 2021 ORDER Entitlement to service connection for a left great toe condition is granted. FINDING OF FACT The Veteran's left great toe condition is attributed to the Veteran's injury in March 2015 while on qualifying duty status with the Air Force Reserve. CONCLUSIONS OF LAW The criteria for entitlement to service connection for a left great toe condition have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Air Force from February 1985 to November 1989 and was a member of the Air Force Reserve until May 2017. As a Reservist, he had a period of active duty from March 2012 to October 2012, as well as multiple periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This case comes before the Board of Veteran's Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified during a virtual hearing before the undersigned Veterans Law Judge (VLJ) in May 2021. This decision is rendered prior to production of a hearing transcript; given the favorable outcome, the Veteran is not prejudiced by this action. The Board notes that while the issue on appeal was previously framed as one for reopening of a previously denied claim, review of the file indicates that relevant military personnel records were associated with the claims file in April 2016. The addition of such requires reconsideration, not reopening, of the current claim. 38 C.F.R. § 3.156(c). The issue is characterized accordingly, and the Board will proceed directly to consideration on the merits. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). "Active military service" includes periods of active duty, periods of ACDUTRA during which the claimant was disabled by a disease or injury incurred or aggravated in the line of duty, and periods of INACDUTRA during which the claimant was disabled by an injury in the line of duty. 38 C.F.R. § 3.6(a). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (2018). Moreover, the United States Court of Appeals for Veterans Claims (CAVC) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran contends that he injured his left toe when he dropped a dumbbell on his toe during his Reserve Service. He reports that the injury occurred during a period of ACDTRA or INACDUTRA. Service treatment records (STRs) document complaints related to the left great toe. In October 1988, the Veteran sustained an injury to the left foot, including the toe, while playing basketball. An old fracture was identified on x-ray. In November 1989, the Veteran reported persistent pain in the toe with wearing boots, and a history of fracture and arthritis was noted. A July 2015 service treatment record noted that he dropped a weight on his left great toe in February 2015. It was noted that the injury had occurred on "UTA," or unit training assembly, a form of INACDUTRA. He had degenerative joint disease (DJD) of the tarsal head. June 2015 private treatment records document surgery in April 2015 for the left great toe. A September 2015 STR noted that the Veteran had duty restrictions because of his left great toe. The examiner noted that a line of duty (LOD) was being processed. He complained of left 1st MPJ S/P surgery March 2015. There was a replaced MPJ on left great toe saw on the OID in July 2015. The Veteran was walking when he damaged his toe again. The Veteran twisted his left ankle and foot into concrete. The Veteran had immediate pain and throbbing. A March 2016 treatment record documented the Veteran's LOD for big toe on the left foot. The original injury occurred when he dropped a 15-pound weight on his toe in March 2015 which resulted in surgical repair and implantation of a hardware device in April 2015. The Veteran reported that he re-injured his toe in September 2015 while loading cargo on aircraft. In December 2015, while jogging he accidently stepped into a dip in the road and injured himself again. The Veteran reported that he had constant throbbing pain in his great toe. The Veteran reported that it hurt to wear boots. A September 2016 VA opinion addressed whether the Veteran had a diagnosis of a residual of left great toe injury that was at least as likely as not incurred in or caused by evidence of a crush injury to left great toe in March 2015. The examiner noted he reviewed the conflicting medical evidence. He noted that a July 2015 and November 2015 medical record made reference to a LOD left great toe injury and toe surgery on March 26, 2015. The examiner indicated that the correlation was unclear, and a causal relationship was not found. The examiner noted a July 2015 record noted he dropped a dumbbell on his left great toe while at the gym on base. The examiner indicated that contusion was not the same as DJD and that DJD was not necessarily a crush injury. He noted that there was no indication of that for the surgery. He wrote that an acute injury would not immediately cause DJD. DJD was a usually the result of the natural ageing process. The LOD, the ER Note documenting the original injury to include X-rays, the inial surgery history and physical evaluation and the operative note were needed to establish a nexus. In March 2017, an addendum opinion was obtained. The examiner opined that that condition claimed was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted she reviewed the records. She noted that STRs showed that the Veteran required surgery after an injury to the left foot during Reserve service in 2015. At the time of the VA examination he had persistent pain and limitation of range of motion (ROM). She opined that it was at least as likely as not that the Veteran's residuals, left great toe injury was incurred in or caused by the left great toe injury during Army Reserve service in March 2015. However, it was less likely than not that the residuals, left great toe injury were incurred in or caused by the injury during active duty service on October 6, 1988. It is implied that because the 2015 injury required surgery, and the 1988 injury did not, the latter did not relate to the current disability. The service medical records support the Veteran's contention of his injury during his Air Force Reserve service. Specifically, the notation in the medical records that demonstrate that the Veteran dropped a weight on his toe and required surgery on base, during UTA. Furthermore, a March 2017 VA opinion provided a positive nexus opinion. There are no opinions to the contrary; the September 2016 VA examiner was not able to provide an opinion without speculation. Moreover, the STRs are highly probative because they were created contemporaneously with the incident during Reserve service in 2015, and the Veteran has consistently described the circumstances of his injuries. Further, the timeline of reported injury by the Veteran is consistent with the timing of his 2015 claim, filed prior to his re-injury. The Veteran has consistently reported that he injured his toe when he dropped a dumbbell and then again while jogging during his Air Force Reserve service, on a duty status. Reserve treatment records notes consideration for a LOD for his left great toe injury for the re-injury, as well as indicate all injuries took place during UTAs. Finally, there is a positive March 2017 VA opinion. Service connection is warranted for a left great toe condition. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.