Citation Nr: 22016663 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 18-18 915 DATE: March 23, 2022 ORDER Service connection for the residuals of a right big toenail avulsion (right toe disorder) is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether a right toe disorder had its onset or is otherwise related to the Veteran's service period. CONCLUSION OF LAW The criteria for service connection for a right toe disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to April 1969, including in combat in the Republic of Vietnam. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Board remanded this matter for further development in January, September, and November 2021. Although the Veteran's attorney attempted to withdraw representation in a February 2022 letter, this notification was received after the certification of the appeal to the Board. In addition, the Veteran's attorney provided no good cause for the withdrawal of representation. Therefore, the attorney remains the Veteran's representative. The Veteran contends his right toe disorder began during service on both feet because the boots issued to him in service were too big for his feet resulting in his foot constantly slipping and pushing his toenails into his flesh, causing his toenails to become ingrown repeatedly. He further noted he had surgery on both feet, but the right foot surgery did not resolve the issue. See January 15, 2021, Hearing Transcript. The Board has found this assertion competent and credible. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA must 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 absence of treatment shown within service treatment records is an insufficient rationale for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA examiners' failure to consider the veteran's testimony when formulating their opinion renders their opinion inadequate. Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The evidence demonstrates that service connection for the right toe disorder is warranted. The record contains a competent diagnosis of a residual recurrent right toenail spicule status after a total right big toenail avulsion; accordingly, competent evidence of a current disability is found. March 24, 2021, C&P, Exam; February 1, 2021, CAPRI. The Veteran's April 1969 report of medical examination for separation states the Veteran had a normal foot, and the Veteran denied any foot trouble in the report of medical history. November 15, 2013, STR - Medical. An October 1969 VA 21-3101 request for information form shows the Veteran reported experiencing a toenail injury in November 1968. The Veteran underwent a VA examination in February 1970, and the examiner noted that the Veteran made no complaints regarding his toenails or feet. A June 1984 treatment note shows the Veteran's bilateral painful ingrown toenail had progressively worsened and was partially removed. A March 1988 treatment note shows continuous issues with the right toenail resulting in a second surgery to remove the right toenail completely. See November 13, 2020, STR - Medical. VA treatment records from 2010 through 2021 have been associated with the record and show continued complaints of a right toe disorder. The March 2021 VA examiner opined that she was unable to state if the Veteran's right toe disorder is at least as likely as not related to service, including being issued the wrong size footwear and his foot sliding into the front of his boots because the first post-service record of a toe disorder is in 1984. However, in the record, the Veteran complained of a 15-year history of an ingrown toenail, the 1984 complaint was 17 years post service, and the 15-year history of ingrown toenail was subjective. The examiner further found that the Veteran's diagnoses of bilateral plantar fasciitis, bunions, and first metatarsophalangeal (MTP) joint degenerative joint disease (DJD) were not related to the claimed condition. In the September 2021 Board decision, the Board found the March 2021 VA examiner's opinion inadequate as the examiner failed to discuss whether the Veteran's statements align with how the right toe disorder is known to develop. The September 2021 VA examiner opined that the weight of objective medical evidence does not support the Veteran's claim of plantar fasciitis, great toenail avulsion, hallux valgus, and left foot DJD occurred during active duty. The examiner's rationale was that service treatment records were negative for any complaint or treatment of the feet during active duty, the Veteran was diagnosed with an ingrown toenail in the 1980s, and the other foot disabilities were diagnosed in 2013. As noted in the November 2021 Board decision, the September 2021 VA examiner did not address whether the Veteran's credible statements align with how the currently diagnosed disabilities are known to develop or whether the Veteran's reports are generally consistent with medical knowledge or implausible. A January 2022 VA examiner opined that any condition occurring in service was likely acute and self-limited and was not evident at separation; it is more likely than not that the Veteran's first foot problems arose in the mid-to-late 1980s, involving toenail issues, and his plantar fasciitis, hallux valgus, and DJD originated in or around 2013. However, this opinion is inadequate as it again failed to address whether the Veteran's credible statements regarding his right toe disorder align with how the currently diagnosed disabilities, including the right toe disorder, are known to develop or whether the Veteran's reports are generally consistent with medical knowledge or implausible. The Board acknowledges the VA examiners' opinions that it is less likely than not that the right toe disorder had its onset in or is otherwise related to the Veteran's periods of service, but assigns those opinions diminished probative weight as they fail to discuss the Veteran's contention that the toe disorder commenced in service, the surgeries in 1984 and 1988 did not resolve the issues with the right toe, and he has experienced symptoms since. See Stefl, 21 Vet. App. at 124. Three VA examiner opinions regarding the etiology of the right toe disorder with a notice of the adequacy requirements were solicited. Still, all the opinions were nevertheless inadequate as they failed to consider the Veteran's lay statements and were only based on the absence of treatment evidence within the service treatment records. See Miller, 32 Vet. App. at 257; Buchanan, 451 F.3d at 1337. The Veteran has described experiencing symptoms of a painful ingrown right toenail since November 1968; those symptoms are attributed to the right toe disorder, as diagnosed by the March 2021 VA examiner. Inasmuch as the sole basis for the negative nexus opinions is the lack of medical documentation, it is reasonable to assume that had the examiners considered the Veteran's lay statements, they would have provided a positive nexus. Again, the decision on appeal was issued nearly a decade ago, and both the Board and RO have attempted on numerous occasions to have the VA examiners consider the lay evidence of record. (Continued on the next page) The Veteran's reports of a reoccurring painful ingrown right big toenail since November 1968 are consistent with the evidence of record and tend to support a nexus to his in-service injury. His account of recurrent big right toe pain since service is both competent and credible. Any doubt on this material issue is resolved in the Veteran's favor, and service connection for a right toe disorder is warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.