Citation Nr: 23005136 Decision Date: 01/26/23 Archive Date: 01/26/23 DOCKET NO. 18-32 918 DATE: January 26, 2023 ORDER Service connection for a right foot disorder is granted. REMANDED Service connection for a right knee disorder. FINDINGS OF FACT 1. The Veteran had active service from December 1976 to March 1980, and from February to June 1991. 2. The current diagnoses of chronic right foot paresthesias and right foot strain have been related to in-service complaints. CONCLUSIONS OF LAW A right foot disorder was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Turning to the evidence, the first element of service connection a current disability is met, as multiple right foot diagnoses have been rendered by medical professionals throughout the appeal period. Specifically, in a December 2013 private Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with chronic paresthesia of the right foot. An August 2014 VA examiner diagnosed a right foot strain. A February 2018 VA examiner diagnosed plantar fasciitis, hallux valgus, degenerative arthritis, retrocalcaneal spur, but no paresthesias. As such, the first element of service connection is met. As to an in-service incurrence, November 1989 service treatment records (STRs) reflect a 1983 foot injury and May 1991 complaints of intermittent foot pain, diagnosed as paresthesias of the right foot secondary to tight boots. While there is no contemporaneous report of the 1983 injury, and it was not during a period of active service, the May 1991 complaint was both contemporaneous and during active duty. As such, the second element of service connection is met. As to a medical nexus, the evidence weighs both for and against the appeal. In December 2013, a private clinician found that the Veteran's chronic paresthesia was more likely than not caused by service, as the condition was chronic, and the tingling, burning, and numbness of the foot began in 1991 and persisted. An August 2014 VA examiner found that it was at least as likely as not that the Veteran's diagnosis of a right foot strain was caused by service, as this was a progression of the May 1991 active duty right foot diagnosis. In contrast, a February 2018 VA examiner found it was less likely than not that a right foot disorder was caused by service, as the Veteran experienced paresthesia and compression neuropathy and neither were found on the examination or by recent medical history. Additionally, the examiner noted that the Veteran complained of foot pain in May 1991, but there were no records that he was treated after service so the condition appeared acute. Post-service treatment records are limited. Nearly all submitted private medical records pertain to right foot, ankle, and knee pain. Thus, the statement that no records show treatment after service is not consistent with the evidence. Additionally, the private clinician and the August 2014 VA examiner diagnosed disabilities of chronic paresthesia and right foot strain respectively and premised the nexus opinions on those diagnoses. Although the February 2018 VA examiner found neither of these disorders, the evidence does not show that these earlier diagnoses were incorrect and even if they resolved during the appeal period prior to the February 2018 VA examination, the first element of service connection does not require a current disability persist throughout the appeal period. The two prior medical opinions found that the Veteran had current diagnoses that were progressions of diagnoses and symptoms that started during service. The Veteran provided competent lay statements as to continued symptoms, which were considered in these opinions but not the February 2018 VA opinion. As such, the prior opinions are the more probative, the third element is met, and service connection is warranted. Of note, the May 1976 enlistment Report of Medical Examination showed pes planus; however, the February 2018 VA examiner confirmed the Veteran did not have bilateral pes planus, and it was not shown on the private December 2013 DBQ nor the August 2014 VA examination. As such, analysis on whether preexisting pes planus was aggravated by service is not for application. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Additional development is necessary prior to deciding the right knee disorder claim. During the development of this appeal, the VA Regional Office (RO) scheduled the Veteran with a February 2018 VA examination and associated medical opinion. The examiner provided an opinion regarding secondary service connection between the Veteran's claimed right foot and right knee disorders, but only addressed causation and not aggravation. At the time of the examination, the Veteran was not service connected for a right foot disorder, but he is as of this decision, and pursuant to El-Amin v. Shinseki, 26 Vet. App. 136 (2013), a VA medical opinion for secondary service connection must also address aggravation. As such, remand for an addendum opinion is required. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA or private medical records and associate them with the claims file. 2. Direct the claims file to a clinician to address the etiology of the Veteran's right knee disorder. Applying general medical principles and the clinician's experience, the clinician is asked to address the following: What is the medical probability (that is, the likelihood is at least approximately balanced or nearly equal, or higher) that a right knee disorder was caused by or aggravated by service-connected right foot chronic paresthesias and right foot strain diagnosed in May 1991? The clinician is asked to address i) causation and ii) aggravation separately. It would be of assistance to the Board if the clinician could explain why the medical evidence is either consistent or inconsistent with a finding that a right foot disability resulted in an altered gait sufficient to cause or aggravate a right knee disorder. A rationale for all opinions must be provided. 3. An examination need not be scheduled unless the clinician cannot answer the questions provided without one. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan Evans, 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.