HALLUX VALGUS (BUNION) ACQUIRED

Summary

The Veteran, an Army veteran who served from June 1983 to January 1986, sought service connection for a right foot disability, initially claimed as gout. The Veteran passed away in September 2022, and his mother substituted as the appellant. The initial claim was denied by the AOJ in August 2016, and the Veteran appealed. After opting into the AMA system and testifying at a virtual hearing in July 2022, the Veteran passed away within the evidence submission period. The Board's review was limited to evidence available before the SOC, from the hearing, and submitted by the appellant. The Board found evidence of a current right foot disability, specifically hallux valgus and degenerative arthritis, diagnosed in August 2016. In-service injury was supported by a December 1985 report noting hallux valgus and the Veteran's own statements about foot pain beginning in bootcamp. The Board found the August 2016 VA examiner's unfavorable opinion inadequate, as it focused solely on gout and did not adequately address the Veteran's statements about the onset of pain or the hallux valgus diagnosis. The Veteran's testimony that the pain began in service and persisted, corroborated by a March 2007 psychologist note and a June 2022 private physician questionnaire suggesting onset during service, created an approximate balance of evidence. Applying the benefit of the doubt, service connection for a right foot disability was granted.

Rationale

Current disability diagnosed as hallux valgus and degenerative arthritis; In-service injury indicated by December 1985 report and Veteran's statements; Benefit of the doubt applied due to approximate balance of evidence

Full Decision Text

Citation Nr: A26038086
Decision Date: 04/23/26	Archive Date: 04/23/26

DOCKET NO. 190531-56272
DATE: April 23, 2026

ORDER

Entitlement to service connection for a claimed disability of the right foot is granted.

FINDING OF FACT

The evidence is at least approximately evenly balanced as to whether the Veteran's post-service disability of the right foot, which existed while this appeal was pending, was incurred in service.

CONCLUSION OF LAW

The criteria for service connection for a claimed disability of the right foot have been 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 1983 to January 1986.  Unfortunately, he died in September 2022, while this appeal was pending.  The appellant in this case is his mother.  This case initially came to the Board from an August 2016 decision of the Agency of Original Jurisdiction (AOJ), denying the claim, filed by the Veteran prior to his death, for service-connected compensation for a disability of the right foot, claimed as gout.  In January 2017, the Veteran initiated an appeal of that ruling by filing a timely notice of disagreement (NOD).  

In general, the legacy system applies to appeals of initial decisions issued before February 19, 2019 and the Appeals Modernization Act (AMA) system applies to appeals of initial decision issued since then.  See 38 C.F.R. §§ 3.2400(a); 19.2.  But under 38 C.F.R. § 3.2500(c)(2), an appellant with a legacy appeal may opt-in to the AMA system by filing a prescribed form within 60 days after the issuance of a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) or, after the issuance of a SOC or SSOC, within one year after the issuance of the initial decision, whichever period ends later.  See 38 C.F.R. § 19.52(b).

On April 17, 2019, the AOJ issued a SOC, in which it continued to deny service connection for a right foot disability.  The Veteran opted into the AMA system by filing a VA Form 10182 ("Decision Review Request: Board Appeal (Notice of Disagreement") concerning his right foot claim in May 2019, less than 60 days after the April 17, 2019 SOC was issued.  In his Form 10182, the Veteran selected the option of Board review with a hearing pursuant to 38 C.F.R. § 20.302.

On July 25, 2022, the Veteran testified before a Veterans Law Judge (VLJ) at a virtual hearing.  A transcript of that hearing is of record.  The same transcript includes his testimony, given the same day and before the same VLJ, concerning a separate appeal (docket no. 190614-73368) of the denial of service-connected compensation for claimed psychiatric disorders.   In March 2023, after learning of the Veteran's death, the Board dismissed his right foot appeal without prejudice to the right of an appropriate person to substitute for the deceased Veteran as the appellant pursuant to 38 U.S.C. § 5121A and 38 C.F.R. § 3.1010.  

The AOJ denied the appellant's initial request for substitution in December 2022.  In February 2023, the appellant requested a higher-level review (HLR) of the denial of her substitution request pursuant to 38 C.F.R. § 3.2601, which was still pending before the AOJ when the Board dismissed the right foot claim without prejudice in March 2023.  The HLR concluded with a January 2024 decision, which continued to deny the request for substitution, a ruling the appellant appealed to the Board.  In August 2024 (docket no. 240229-419564), the Board remanded the substitution request to the AOJ, which finally granted the request for substitution in February 2026.  As a result of this ruling, the Veteran's mother substituted for the deceased Veteran as the appellant for the purpose of processing this appeal to completion pursuant to 38 U.S.C. § 5121A and 38 C.F.R. § 3.1010.  The Board therefore reactivated this appeal and docket no. 190614-73368, with both appeals resuming their respective places on the Board's docket.  

Because the Veteran
 for substitution, a ruling the appellant appealed to the Board.  In August 2024 (docket no. 240229-419564), the Board remanded the substitution request to the AOJ, which finally granted the request for substitution in February 2026.  As a result of this ruling, the Veteran's mother substituted for the deceased Veteran as the appellant for the purpose of processing this appeal to completion pursuant to 38 U.S.C. § 5121A and 38 C.F.R. § 3.1010.  The Board therefore reactivated this appeal and docket no. 190614-73368, with both appeals resuming their respective places on the Board's docket.  

Because the Veteran selected an appeal involving Board review with a hearing, he had the right to submit additional evidence within 90 days following his July 25, 2022 hearing.  See 38 C.F.R. § 20.302.  Because he died 41 days into the evidence submission period, the Board sent a letter to the appellant in February 2025, advising her she had the right to submit evidence during the remainder of this period.  

Since the Veteran opted into the AMA system in response to the SOC, testified at a hearing, and died before the expiration of the evidence submission period, the Board's review of this appeal is limited to the evidence in the claims file on April 17, 2019 (the date of the SOC), the hearing transcript, the evidence submitted by or on behalf of the Veteran during the 41 days between the hearing and his death, and the evidence submitted by the appellant between the day VA notified her that her motion to substitute was granted (February 5, 2026) and the expiration of the 49 days remaining in the post-hearing evidence submission period (March 26, 2026). 

Service Connection for a Right Foot Disability

In general, establishing service connection requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event.  See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

According to a June 1982 medical examination report, the Veteran's lower extremities were normal when he enlisted in the Army.  His service treatment records include a second examination report, prepared in December 1985, shortly before his discharge from service.  The December 1985 report indicates that the Veteran's feet were affected by hallux valgus.  At the same time, the Veteran prepared a report of medical history, which indicates that he had experienced "foot trouble."  

In his application for benefits, received in April 2016, the Veteran described one of his claimed disabilities as "Right Foot Condition (gout)..."  The AOJ arranged for a physician to examine the Veteran's feet in July 2016.  The examiner's report, completed in August 2016, reflects diagnoses of hallux valgus and degenerative arthritis, both affecting the right foot.  The questionnaire includes a summary of the Veteran's statements about the relevant medical history.  He told the examiner he "started having right foot pain when running in boots, midway through boot camp.  The pain was worse in the great toe with walking and running."  The Veteran told the examiner that he tried "inserts for his shoes" which "did not help."    More recently, he said he received a right foot x-ray "a year ago" and was told he had gout and bunion, also affecting the right foot.  The examiner reviewed x-ray images of the right foot, taken in December 2015, which indicated degenerative changes and severe hallux valgus.

The examiner prepared a medical opinion rejecting the theory that the Veteran's claimed gout was related to service.  To explain this opinion, the examiner wrote that the Veteran had "great toe pain but his symptoms are not consistent with that of classic gout.  The only indication in his records of gout is a nonspecific finding on x-ray.  On the other hand, [he] has severe hallux valgus as noted on his x-ray and clinically.  No documentation of record [sic] that there has been continued care and treatment for foot condition.  A nexus has not been established." 

One of the earliest of the available
 in December 2015, which indicated degenerative changes and severe hallux valgus.

The examiner prepared a medical opinion rejecting the theory that the Veteran's claimed gout was related to service.  To explain this opinion, the examiner wrote that the Veteran had "great toe pain but his symptoms are not consistent with that of classic gout.  The only indication in his records of gout is a nonspecific finding on x-ray.  On the other hand, [he] has severe hallux valgus as noted on his x-ray and clinically.  No documentation of record [sic] that there has been continued care and treatment for foot condition.  A nexus has not been established." 

One of the earliest of the available post-service medical records, prepared in March 2007, indicates that the Veteran told a VA psychologist about "a foot injury dating back to service that he would like to see a doctor about."  At the July 2022 hearing, the Veteran testified that the right foot pain he experienced in service never went away.  Since his discharge from service, he testified, the foot pain was present "continuously, all the time."  

In August 2022, during the post-hearing evidence submission period, the Veteran's attorney submitted a questionnaire, apparently completed in June 2022 by a physician in private practice.  The questionnaire indicates that the Veteran had a current right foot disability, described as "bunion right foot."  In the physician's opinion this condition "arose during" the Veteran's service.  Somewhat confusingly, the author marked "no" in response to the question "was the Veteran's right foot condition at least as likely as not incurred in or caused by his military service?"  The physician wrote, but then crossed out, "aggravated" - substituting for "aggravated" the words "arose during", apparently to indicate the right foot bunion had its onset in service.

The August 2016 diagnoses of right foot hallux valgus and degenerative arthritis satisfy the current disability requirement of the claim.  The Veteran's statements to the examiner, indicating that he began experiencing his right foot pain in bootcamp, together with the December 1985 diagnosis of hallux valgus, satisfy the in-service injury requirement.  The success of the claim therefore depends on whether a causal connection exists between the in-service injury and the post-service right foot disability.  See Fagan, 573 F.3d at 1287.

At the July 2022 hearing, the Veteran's attorney persuasively argued that the August 2016 examiner's unfavorable opinion is inadequate to support a denial of the claim because the focus of the opinion is whether the Veteran had gout, the diagnosis he identified on his application for benefits.  His claim for benefits is best understood as requesting compensation for any post-service disability of the right foot, whatever its clinical diagnosis, which may be related to service.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  The August 2016 opinion also seemed to reject the theory that hallux valgus had its initial onset in service based on a lack of continuity of treatment.  But the rationale for this conclusion failed to address Veteran's statements about the timing of the onset of his foot pain.

The Board has considered remanding this appeal for a new opinion addressing whether any of the potentially relevant post-service disabilities of the right foot (hallux valgus, degenerative arthritis, gout, and bunion) may be related to service.  Denying the claim based on a medical opinion which was only adequate with respect to one diagnosis (gout) was probably a pre-decisional duty to assist error, potentially justifying a remand.  See 38 C.F.R. § 20.802(a).

For at least three reasons, however, a remand is unnecessary and the currently available evidence is sufficient to support a favorable decision now.  First, the Veteran was competent to provide information about when his right foot pain began.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a lay person is competent to report observable symptoms).  In July 2022, he testified that the pain in his right foot began in service and never went away.  His testimony is consistent with the psychologist's March 2007 note, recorded approximately nine years before he first sought for monetary benefits for his right foot pain.  

Secondly, one of the disabilities diagnosed by the July 2016 examiner was right foot hallux valgus - the same diagnosis reflected in the December 1985 examination report at the time of the Veteran's discharge from service.  It is significant that, according to the earlier enlist
 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a lay person is competent to report observable symptoms).  In July 2022, he testified that the pain in his right foot began in service and never went away.  His testimony is consistent with the psychologist's March 2007 note, recorded approximately nine years before he first sought for monetary benefits for his right foot pain.  

Secondly, one of the disabilities diagnosed by the July 2016 examiner was right foot hallux valgus - the same diagnosis reflected in the December 1985 examination report at the time of the Veteran's discharge from service.  It is significant that, according to the earlier enlistment examination, the Veteran's lower extremities were normal when he joined the Army.  Moreover, because a new physical examination of the Veteran's feet is no longer possible, a post-remand medical opinion under these circumstances might not be especially useful.  

Although it is not a model of clarity, the June 2022 questionnaire submitted by the Veteran's attorney also has some tendency to favor the claim.  The handwritten notes on the questionnaire seem to indicate that the author first wrote that the current right foot bunion was aggravated by service - which would explain the initial unfavorable answer to the question whether the disability began in service - but later amended the statement to endorse the theory that the disability "arose during" service.   

Under these circumstances, the evidence is at least approximately evenly balanced as to whether the Veteran's post-service right foot disability was related to service.  By law, the doubt resulting from this equipoise in the evidence is resolved in favor of the appellant.  See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'. . . , the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits.").  For these reasons, the Board will grant service connection for a right foot disability.

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Nye, 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.