Citation Nr: 22013476 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 12-16 574A DATE: March 9, 2022 ORDER Entitlement to service connection for residuals of a right foot fracture is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for right knee arthritis is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee chondromalacia is remanded. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's residuals of a right foot fracture are etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for residuals of a right foot fracture are 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 on active duty from June 1978 to March 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Regarding the Veteran's claim of entitlement to service connection for residuals of a right foot fracture, the Board most recently remanded the issue in December 2020 for further development. The requested development has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In December 2020, the Board denied initial increased ratings for right knee arthritis and left knee chondromalacia. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the December 2020 decision as to the denials of initial increased disability ratings for bilateral knee disabilities. The Court granted the JMR in a September 2021 order. As such, the matter is back before the Board. 1. Entitlement to service connection for residuals of a right foot fracture is granted. The Veteran is seeking to establish service connection for residuals of a right foot fracture. He contends he injured his right foot in service and has experienced continuous pain in his right foot since his separation from service. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Following a review of the evidence of record, the Board resolves reasonable doubt in favor of the Veteran and finds that entitlement to service connection for residuals of a right foot fracture is warranted. With regard to a present disability, treatment records reflect that the Veteran was diagnosed with pes planus, plantar fasciitis, hammer toes, hallux valgus, hallux rigidus, degenerative arthritis, and corns and calluses. See July 2021 VA examination. As such, the first element of service connection is met. With regard to an in-service event, service treatment records reflect that the Veteran complained of pain for the past week in both feet in August 1981. The pain was noted to have existed for two years. The Veteran's toenails were loose or falling off with blisters and calluses on both feet. It was noted that the Veteran was exposed to cold and had frostbite in 1979. Imaging studies from February 1980 reflected what was interpreted to be an old fracture of the "PIP-5th toe." In an August 1981 podiatry note, the Veteran was diagnosed with painful feet. Multiple calluses and tinea pedis were noted. In February 1982, the Veteran was treated for bilateral foot pain for the past four days. In a July 1984 Report of Medical History, the Veteran reported occasional severe pain at the bottom of his feet. In November 1987, the Veteran received treatment for three days of pain and swelling of the feet. The Veteran reported the pain had been off and on for the past three years. In December 1987, the Veteran reported painful feet when walking and hardness on the soles. Pes planus and plantar warts were noted. In January 1988, the Veteran had "multiple [foot] complaints," including general foot pain, callous on the right heel, pes planus, and plantar warts. A March 1988 Report of Medical History indicates that the Veteran endorsed foot trouble and noted plantar pains in the feet that were always present when he walked. A March 1988 Report of Medical Examination noted right foot mild pes planus that was symptomatic. As the Veteran's service treatment records contain multiple complaints of and treatment for foot conditions, the second element of service connection is met. As for the third element of service connection, evidence of a nexus between the Veteran's residuals of a right foot fracture and service, the Board finds this final element has been met. In July 2021, following examination and review of the record, a VA examiner opined that the Veteran's diagnoses of right foot strain status post fracture, right foot cyst status post surgery, right foot pes planus, right foot hallux valgus, right foot corn and calluses, right foot degenerative joint disease, and right foot hammer toes were as least as likely as not related to service. The examiner explained that records reflected that the Veteran suffered a fracture of the right PIP joint of the fifth toe in service. The Veteran reported subsequent pain from the fracture that caused him to "walk differently" and compensate with other areas of the foot leading to several other conditions. The wear and tear placed on the foot over the years in service at least as likely as not lead to the Veteran's current right foot conditions. The Board acknowledges the negative nexus opinions of record provided by VA examiners; however, the Board finds no reason to favor these opinions over the July 2021 positive opinion. Therefore, the evidence is at least in relative equipoise that the Veteran's residuals of a right foot fracture are related to his service. Reasonable doubt is resolved in favor of the Veteran and the Board concludes that a nexus has been established. Accordingly, the Board finds that service connection for residuals of a right foot fracture is warranted. 38 C.F.R. § 3.303(d); 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for right knee arthritis is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for left knee chondromalacia is remanded. In the September 2021 JMR, the parties agreed that the Board relied on an inadequate VA examination when denying the Veteran's claims for increased ratings for bilateral knee disabilities. Specifically, a December 2019 VA examination contained conflicting information regarding whether the VA examiner found evidence of pain on passive range of motion testing and non-weightbearing testing of the Veteran's left and right knee. The parties additionally found that the Board had failed to provide an adequate functional loss analysis, as the Board had determined there was no additional loss of motion of the knees following three repetitions when in fact a February 2018 VA examination reflected that the Veteran was unable to perform repetitive use testing. Given the foregoing, the Veteran should be afforded a new VA examination to determine the severity of his right knee arthritis and left knee chondromalacia. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA medical examination to assess the orthopedic manifestations of his right knee arthritis and left knee chondromalacia. The Veteran's electronic claims file must be made available for review. All testing deemed necessary to rate the Veteran's bilateral knee disabilities under the criteria of the VA rating schedule must be conducted and the results reported in detail. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weightbearing. The examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain; it is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests. Testing should be conducted, and results provided, for the opposite joint, unless the opposite joint is damaged. If the opposite joint is determined to be damaged, and no range of motion testing is conducted, this must be explained in the report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. The examiner should express an opinion as to whether pain or other manifestations during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range-of-motion loss due to pain on repeated use or during flare-ups. If no estimate can be provided, the examiner should provide a sufficiently detailed explanation as to why. A rationale for the opinions in the examination report must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.