Citation Nr: 21041927 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-35 392 DATE: July 10, 2021 ORDER Service connection for a fifth right toe and/or toenail condition, to include arthritis, is denied. FINDING OF FACT The preponderance of the competent and probative evidence is against finding that fifth right toe and/or toenail condition, to include arthritis, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for fifth right toe and/or toenail condition, to include arthritis, are not met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to June 1970. This matter comes before the Board of Veteran' Appeals (Board) on appeal from a January 2009 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This claim was last remanded in February 2021 for a new VA medical opinion and examination. Since the Veteran was provided an adequate VA examination and medical opinion in April 2021, the Board finds that there has been substantial compliance with the remand directives. Since the Veteran's representative made an allegation in a July 2021 Brief that the Veteran's Service Treatment Records (STRs) may have included records that was not his own, the Board review the records and confirmed the Veteran's identity through his social security number, mother's name and address, date of birth and description of his physical characteristics. The Board is satisfied that the record is complete and belongs to this Veteran, and will therefore not delay this matter with an unnecessary remand as the representative offered no proof of the allegation and only conjecture. Additionally, the July 2021 Brief indicates it is "troubled' by the statement of the VA examiner that the Veteran's toes infection was treated with antibiotics in service. However, this type of treatment is consistent with a recent statement by the Veteran in March 2021. Service connection for a fifth right toe and/or toenail condition, to include arthritis, is denied. The Veteran contends that his toenail cuts into his flesh because of treatment he received during service, wherein the podiatrist cut his toenail while resolving an infection. See VA 21-4138 Statement in Support of Claim received 1/10/2020. Alternatively, the Veteran has asserted that a fracture prior to his active duty service, which he self-reported at enlistment, is the reason for the current pain in his toe. See Correspondence received 3/03/2021. Both theories of entitlement concern the small right toe. See STR received 10/22/2008 at pages 15 and 29. For the reasons stated below, the Board finds the preponderance of the evidence weighs against service connection for a fifth right toe and/or toenail disability. Since the Veteran has presented two distinct theories of entitlement, the Board will address them separately. Skin Disability Initially, when the Veteran applied for service connection for a toenail disability, he stated that his fifth right toe was cut during treatment for an infection during service and has remained tender ever since. See C&P Exam received 5/23/2019 at page 1. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection generally requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran was first provided a VA examination in May 2019. The examination was for skin diseases since the Veteran's initial claim was that his infection during service caused his current toenail pain. The May 2019 VA examiner found that the Veteran's toenail was normal and there was no evidence of irregularities or fungal infection or any structural abnormalities with regard to the Veteran's toe and nail. See C&P Exam received 5/23/2019 at pages 4-5. Although, the May 2019 VA examiner mentions "a normal examination for the right great toe" instead of the right small toe in the disabilities and benefits questionnaire (DBQ), the Board finds the error harmless since the May 2019 VA examiner's opinion referenced all the right toenails. Accordingly, with regard to the issue of service connection, the Veteran did not have a current disability, and therefore did not meet the first criterion for service connection. Therefore, the May 2019 VA examine gave a negative nexus statement. The Veteran was provided another VA examination in February 2020, in light of the Board's remand for the VA examiner to consider the Veteran's assertion of pain in his right small toe and whether it amounted to a disability under Saunders v. Wilkie, 885 F.3d. 1356 (Fed. Cir. 2018), wherein the United States Court of Appeals for the Federal Circuit found that pain without an accompanying pathology can constitute a "disability" under 38 U.S.C. § 1110. The February 2020 VA examiner provided a diagnosis of paronychia and a negative nexus to service stating that in service the Veteran was diagnosed and treated for paronychia, an infection of the tissue around the nail bed. Since there was no subsequent treatment during service, and at separation the Veteran's foot was found normal. Therefore, the February 2020 VA examiner found that it was less likely than not that any current disability of the fifth right toe and/or toenail was related to service. See C&P Exam received 2/14/2020 at page 8. With regard to the Board's directive upon whether the Veteran's fifth right toe/toenail pain could be considered a disability, the February 2020 VA examiner opined that the record was silent for a right toenail issue. Accordingly, the examiner found that there was no functional impairment of the right toenail for earning capacity. Id. at page 9. However, earlier in the examination report, under the "Functional impact" section, the examiner marked "yes" to does a skin condition impact the Veteran's ability to work and stated that the Veteran stated pain is incurred from pressure from his shoe and it caused an aggravating pain. VA afforded the Veteran another examination in April 2021. The examiner provided three diagnoses of 1) spontaneous rupture of tendons, right lower leg, 2) metatarsalgia, 5th digit, and 3) unspecified fracture, right 5th toe. The April 2021 VA examiner also found that the Veteran did not have an ingrown toenail or active infections of his fifth right toe. Additionally, the examiner found that the infection of the fifth right toe during service was treated and resolved. The April 2021 VA examiner gave a negative nexus opinion stating that the Veteran's in service infectious disease which was present during service resolved with treatment shortly afterward and therefore it was less likely than not that his claimed condition was incurred in or caused by service. The Board concludes given the three negative nexus opinions of record, a normal separation examination, the Board's review of the Veteran's post-service medical records that showed no complaints of, treatment for, or diagnosis of toenail conditions or foot complaints until November 2019, roughly 49 years since service, that the preponderance of the evidence weighs against service connection for a fifth right toe and/or toenail disability that began during service, or is otherwise related to service. Collectively, the VA examination opinions of record show awareness of relevant facts related to the Veteran's medical history and provide rationales to support the stated opinions so the Board place weight on them. Additionally, the Veteran's post-service treatment records are consistent with VA opinions. In finding that the preponderance of the evidence is against service connection for a fifth right toe and/or toenail disability, the Board has sympathetically reviewed the Veteran's lay statements wherein he states that the toenail grows in the wrong direction and may become ingrown, and when "the toe get(s) stepped on or a hard bump against something" it causes pain. See VA 21-4138 Statement in Support of Claim received 1/10/2020. The Board finds the statements do not amount to probative evidence of a current disability since the Veteran was found throughout all three VA examinations not to have a medical history of ingrown toenails. Additionally, his representations of feeling pain when his toe is stepped on or bumps hard against something does not amount to a disability as it requires an independent action in order for pain to occur. Rather the evidence of record shows that upon examination the Veteran's toenail was normal. Accordingly, the Board finds that the preponderance of the competent and probative evidence is against service connection that was caused by or is related to the Veteran's in-service treatment for a skin infection at the base of his fifth right toe. Aggravation of a Pre-Existing Disability While this matter was on appeal, the alternative theory that his toenail/toe pain was related to a pre-service fracture of his fifth right toe was raised. See BVA Decision received 11/21/2019 at page 7; see also Correspondence received 3/03/2021. Veterans are presumed to have been in sound condition upon entry into service, except as to conditions noted on their entrance examinations. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. If a pre-existing disorder is noted upon entry to service, a veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In such case, the burden falls on the veteran to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Pursuant to 38 U.S.C. § 1153, a pre-existing 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. In such claims the veteran (the evidence of record) must simply show that there was an increase in disability during service to trigger the presumption of aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progression of the pre-existing condition. Wagner, 370 F.3d at 1096; 38 U.S.C. § 1153. The Government must make its showing by clear and unmistakable evidence. See Cotant v. Principi, 17 Vet. App. 116, 130 (2003); see also 38 C.F.R. § 3.306(b). The Veteran was provided an VA examination for foot conditions in April 2021. The VA examiner diagnosed the Veteran with three separate foot conditions: spontaneous rupture of other tendon, right lower leg; metatarsalgia; and unspecified fracture, right 5th toe (based on the Veteran's self-report at entrance). The April 2021 VA examiner stated that the Veteran's metatarsalgia was due to chronic overuse and was not related to the infectious skin condition during his active duty service. The examiner also found that his metatarsalgia was not diagnosed until 2020 and was most likely a degenerative result of the pre-service fracture the Veteran self-reported at entrance, and not his in-service toenail infection. See C&P Exam received 4/23/2021 at page 6. First, the Board finds that the Veteran's fracture of the right toe was not "noted" for VA purposes, and the Veteran was sound as to any foot condition. 38 U.S.C. § 1111. The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b). The Veteran reported a right small toe fracture, incurred in 1966, in the August 1967 report of medical history section. Therefore, since the entrance examination did not "note" any foot conditions; the Veteran was sound upon entry. Secondly, the Board finds that during service the Veteran had no issues related to his foot fracture since at entry and separation the Veteran's foot was found "normal". Additionally, during service the Veteran was not treated for a foot condition related to his past fracture. See STR received 10/22/2008. Accordingly, the Board finds that the competent and probative evidence tends to show that the Veteran's current metatarsalgia is unrelated to his service and was not increased beyond its natural progression by his service. See C&P Exam received 4/23/2021 at page 5. Accordingly, service connection for a foot condition claimed as a toenail /toe disability is denied. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.