Citation Nr: 21042709 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-51 618 DATE: July 13, 2021 ORDER Service connection for a right foot disability, as secondary to a left knee disability, is denied. FINDINGS OF FACT 1. The Veteran's right foot disability is less likely than not due to an in-service event, injury, or illness. 2. The Veteran's right foot disability is less likely than not due to his service-connected left knee disability. CONCLUSION OF LAW The criteria for service connection for a right foot disability, to include as secondary to a left knee disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1991 to May 1993. The issue on appeal was previously before the Board in December 2018, when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial of the issue in a June 2020 Supplementary Statement of the Case (SSOC) and returned the case to the Board. In the December 2018 remand, the Board directed the AOJ to schedule the Veteran for a VA medical examination to evaluate the nature and etiology of his right foot disability, specifically requesting that the examiner address whether his right foot disability was related to his service-connected left knee disability. The claims file reflects that the AOJ requested the appropriate examination, and the examiner addressed the specific question regarding any potential connection between his right foot disability and left knee disability. Therefore, there has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the Veteran indicated in an October 2020 statement that the initial cause of his right foot disability was a weight-bearing callus on the bottom of his foot. He claimed that the initial bunionectomy procedure was performed in an effort to relieve pressure off of the callus, and that his second and third toes were screwed "in the wrong placement," also in an effort to relieve pressure on the bunion. He noted that his toes were "not dependable," and required him to wear special shoes in order to walk. The record shows that the Veteran previously had a separate claim for compensation under 38 U.S.C. § 1151 for a right great toe disability, in connection with his surgical treatment for hallux valgus, which was denied in a May 2018 rating decision. There is no indication that he timely appealed that decision and, therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. Accordingly, any claim as it pertains to additional disability caused by VA hospitalization, medical or surgical treatment, vocational rehabilitation, compensated work therapy program (CWT), or as the result of having submitted to a VA medical examination is not currently on appeal. Entitlement to service connection for a right foot disability. The Veteran asserts that service connection for a right foot disability, which he attributes to his service-connected left knee disability, is warranted. Service Connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110,1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service injury or disease. See e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of a disability prior ot the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed 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, 294 (2013). The term "disability" as used for VA purposes generally contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (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 (1990). The record reflects that the Veteran underwent a lapidist fusion procedure on his right foot in January 2004 to treat his hallux valgus. He subsequently underwent additional operations on his right foot and experienced residuals in connection with those operations. The record also shows that he had been treated on numerous occasions for painful calluses on both feet. Thus, a current disability has been established. As the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. As the Veteran is service connected for a left knee disability, the only issue remaining before the Board is whether or not there is an etiological link between his right foot disability and his left knee disability. In an August 2002 VA examination, the examiner noted that the Veteran had darkened corns at the bases of his great toes, callosities in his upper foot pads, and bunions on the lateral aspects of both great toes. The examiner further indicated that he had a "gross amount of patchy scaliness on both feet," and thickened, darkened, irregularly shaped toenails. The examiner stated that his shoes had an inward tilt, and that he had severe atrophy of his left quadriceps muscle. The examiner also documented that he had slightly flattened feet with dropped arches. In his October 2003 claim request to reopen his claim for a right foot disability, the Veteran listed bilateral foot onychomycosis, corns, and callosities as the conditions being claimed. In a July 2003 VA podiatry consultation note, the treating clinician stated that the Veteran had mycotic nails that were severely ingrown, bilateral hallux valgus, bilateral tinea pedis, pes planus, bilateral bunions, and multiple hammertoes. The clinician further noted that he had multiple corns, both hallux and plantar. The clinician debrided his corns and nails, and indicated that surgery might be necessary for a permanent solution. In a January 2004 VA ambulatory surgery history and physical note, the Veteran reported that he had experienced pain in his right foot for approximately 10 years, with severe pain for the prior seven years. In an October 2004 VA podiatry outpatient note, the Veteran indicated that he had a painful callus on his right foot. He stated that he had bunion surgery in January to correct the source of the calluses, which recently returned approximately one month prior to the appointment. In an August 2007 podiatry outpatient note, the Veteran stated that he had surgery on his right foot in 2004 due to a painful callus on the bottom of his foot, but noted that the callus returned and was still painful. He reported that the callus on his right foot caused him to put more weight on his left foot, and indicated that he also developed calluses on his left foot. In a July 2009 VA examination, the Veteran indicated that he developed a pressure bunion as a result of placing more pressure on his right foot after his left knee surgery. The examiner noted that he had callosities on his right foot and left foot as evidence of abnormal weight bearing. The examiner documented that he had a first tarsometatarsal joint fusion and erosion around the screw put in place during that procedure. The examiner opined that the conditions were less likely than not caused by or a result of his left knee disability, as they were separate entities and not caused, or even related to, a left knee condition. In a September 2019 VA medical opinion, the examiner opined that the Veteran's right foot disability was less likely than not proximately due to or the result of his service-connected left knee disability, and was less likely than not aggravated by his left knee disability. The examiner stated that there was no evidence to suggest that his right bunion (which led to the bunionectomy and surgical complications) was caused or aggravated beyond its natural progression by his left knee disability, and noted that medical literature provided many theories about how bunions develop, but the exact cause was unknown. The examiner documented that factors likely to contribute to bunions included inherited foot type, foot injuries, and deformities present at birth. The examiner further noted that experts disagreed on whether tight, high-heeled, or too-narrow shoes caused bunions, or whether footwear simply contributed to bunion development. The examiner indicated that bunions could also be associated with certain types of arthritis, particularly inflammatory types, such as rheumatoid arthritis. Based on a review of the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's right foot disability is related to his service-connected left knee disability. Although the record indicates that he had bilateral callosities and bunions, there is no indication from the medical evidence that any such condition present on his right foot was due to or aggravated by his left knee disability. The Veteran indicated on multiple occasions that he underwent the bunionectomy procedure in 2004 to treat the cause of his calluses, and the July 2009 and September 2019 examiners both opined that his right foot hallux valgus was not caused by his left knee disability. Further, the September 2019 examiner also opined that the condition was not aggravated by his left knee disability, and provided numerous factors which could lead to the development of a bunion. Ultimately, in the absence of any competent evidence to the contrary, the evidence of record weighs against a conclusion that the Veteran's right foot disability is related to his left knee disability, and entitlement to service connection is not warranted. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ferguson, 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.