Citation Nr: 0303365 Decision Date: 02/26/03 Archive Date: 03/05/03 DOCKET NO. 01-03 258 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE 1. Entitlement to service connection for a right foot disorder. 2. Entitlement to service connection for a left foot disorder. ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from 2 November to 23 December 1965. This appeal arises from an October 1999 rating action that denied service connection for a bilateral foot disorder, a right 5th hammertoe and a cavus left foot with 4th and 5th claw toes. By decision of July 2001, the Board of Veterans Appeals (Board) remanded this case to the RO for further development of the evidence and for due process development. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. According to persuasive, uncontradicted VA medical opinion, the veteran's pre-existing right foot hammertoe deformities, plantar callosities, and corns increased in severity during service beyond the natural progress of the condition. 3. According to persuasive, uncontradicted VA medical opinion, the veteran's pre-existing left cavus foot deformity with hammer and claw toes, plantar callosities, and corns increased in severity during service beyond the natural progress of the condition. CONCLUSIONS OF LAW 1. The veteran's right foot hammertoe deformities, plantar callosities, and corns were aggravated by wartime service. 38 U.S.C.A. §§ 1110, 1153, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.306 (2002). 2. The veteran's left cavus foot deformity with hammer and claw toes, plantar callosities, and corns were aggravated by wartime service. 38 U.S.C.A. §§ 1110, 1153, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.306 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that, during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West Supp. 2002). This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the provisions of the law, the VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002)). The VCAA and its implementing regulations essentially eliminate the concept of the well-grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. They also include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim (38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)), as well as the duty to notify a claimant what evidence will be obtained by whom (38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(b)). In addition, they define the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)). For the reasons explained in more detail below, and in view of the Board's favorable disposition of the claims for service connection for right and left foot disabilities on the merits, the Board finds that the passage of the VCAA and implementing regulations does not prevent the Board from rendering a decision in this case, and that all notification and development action needed to render a fair decision on the claims has been accomplished. I. Background A review of the service medical records discloses that the feet were normal on preinduction examination of July 1965. No additional defects were noted on physical inspection at the time of entrance into active service on 2 November 1965. An undated medical record indicates that the veteran was seen during his 1st week of basic training with complaints of bilateral foot pain. Examination showed bilateral rigid hammertoes, primarily on the 4th and 5th toes, and painful plantar callosities and corns aggravated since he had been wearing boots. X-rays revealed a hammertoe deformity of the 5th right toe and of the 4th and 5th left toes. The diagnosis was left cavus foot with 4th and 5th claw toes, which was considered to have existed prior to service. Separation from service was recommended, as further duty could aggravate the condition. A military medical board report discloses that the veteran was separated from service after 24 days of active service as medically unfit due to left cavus foot with 4th and 5th claw toes, which existed prior to service and had not been aggravated thereby. Post service, March 1978 examination by M. Heiman, M.D., showed bilateral claw toes with recurrent calluses and some metatarsalgia which had been present for a long period of time and which caused the veteran considerable difficulty. Reconstructive surgery of both feet was for consideration. In April 1978, Dr. Heiman opined that the veteran's foot problem was quite severe and limited his activity. The subsequent record shows continuing evaluation of the veteran for foot and back disorders through 1986. A combination problem of considerable clawing of all 4 small digits, metatarsalgia involving all of the metatarsal heads, and hammertoe deformities of all toes were noted in March 1981. Metatarsalgia, hammertoes, and pes planus were noted in March 1982; metatarsalgia was felt to be the veteran's biggest problem. His foot problem was noted to be much improved in October 1982 following the use of shoe orthoses. A claw toe deformity of both feet was noted in August 1984. The outpatient records of Dr. P. Vanover show continuing general medical treatment and evaluation of the veteran primarily for back and leg pain from 1998 to 2001. In June 1999, he complained of bilateral hammertoes and bunions since military service. Examination of the feet showed marked deviation of toes and 2nd, 3rd, 4th, and 5th hammertoes. On September 2002 VA examination, the physician reviewed the veteran's claims folder and his current complaints of bilateral foot pain. The veteran gave a history of the onset of foot symptoms in basic training in service in 1965. He stated that ill-fitting boots and vigorous training exacerbated his symptoms and condition. On current examination, there was obvious tenderness to palpation over the metatarsal heads with evidence of callosities, as well as bilateral inflamed bunions, bilateral hammertoe or claw toe deformities involving the 4th and 5th toes of both feet, and a bilateral cavus deformity. X-rays revealed left toe deformities of the 2nd through 5th toes, including hammertoes. There was a grade 1 hallux valgus deformity at the 1st left metatarsophalangeal joint. The right foot showed similar deformities of the 2nd through 5th toes, with subluxation of the 5th metatarsophalangeal joint. The diagnostic impression was bilateral claw foot/hammertoe deformity, particularly involving the 4th and 5th toes as well as apparent bilateral cavus and hallux valgus deformities. After examination of the veteran's claims folder and medical records contained therein, the doctor opined that it was likely that the veteran sustained a worsening of a pre- existing disability as a result of his military service. Noting that the veteran developed considerable pain in the feet during the course of his basic training, resulting in his discharge from service because of claw toe deformity and cavus feet, he opined that ill-fitting shoes as well as his disability contributed to the worsening of his foot problems. He further opined that the veteran's inservice complaint of foot pain represented an increase in the pre-service disability beyond the normal progression of the disease, rather than a simple acute or transitory flare-up. II. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Considering the merits of the claims, the Board notes that evidence includes the veteran's inservice complaints of bilateral foot pain and inservice objective findings of bilateral hammertoe deformities, painful plantar callosities, and a left cavus foot with claw toes, and the uncontradicted post-service 2002 medical opinion of a VA physician establishing a medical nexus between the veteran's military service and his current bilateral claw foot/hammertoe, cavus, and hallux valgus deformities by way of aggravation. On that record, the Board finds that the evidence supports the grant of service connection for such bilateral foot disability by way of aggravation of a pre-service disability. The VA medical opinion, based upon both examination of the veteran and consideration of his documented medical history, is both competent and probative evidence on the nexus question and the question of an increase in severity of the pre-service disability in service beyond natural progression. The Board also notes that there is no contrary medical evidence or opinion of record (clear and unmistakable evidence) to rebut the presumption of aggravation. For all the foregoing reasons, the Board finds that the evidence supports the claims for service connection for bilateral claw foot/hammertoe deformities, and the appeal is granted. ORDER Service connection for a right foot disorder is granted. Service connection for a left foot disorder is granted. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.