Citation Nr: 0419623 Decision Date: 07/21/04 Archive Date: 10/04/04 DOCKET NO. 02-03 365 DATE JUL 21 2004 On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether there is new and material to reopen a claim for service connection for postoperative residuals of bilateral bunions. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from December 1991 to November 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision from the No. Little Rock, Arkansas, Regional Office (RO), which denied the veteran's application to reopen a claim for service connection for bunions of both feet. In May 2002, a VA decision review officer reopened the claim and then denied service connection for bilateral bunions after a de novo review of the evidence. The issue on appeal is first whether there is new and material evidence to reopen the claim for service connection. As the Board finds, as did the RO decision review officer, that there is, the Board will then consider the underlying issue of service connection for bunions on a de novo basis. FINDINGS OF FACT 1. In March 1997 the Board denied entitlement to service connection for bunions. 2. The evidence received since the March 1997 Board decision is new, it bears directly and substantially upon the specific matters under consideration, and it is so significant that it must be considered to decide fairly the merits of the veteran's claim of entitlement to service connection for bunions. 3. The veteran's bunions increased in severity during active duty. CONCLUSIONS OF LAW 1. The veteran has submitted new and material evidence sufficient to reopen the claim of entitlement to service connection for a major depressive disorder. 38 U.S.C.A. §§ 1110, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1103 (2003). 2. Bilateral bunions were aggravated by active service. -2 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background On her April 1991 pre-service entrance examination, it was noted that the veteran had asymptomatic mild hallux valgus. Approximately 2 weeks after her entrance into active service, in December 1991, she was seen for complaints of bunion pain with marching and running. The assessment was hallux valgus with bunions. In June 1992, she was seen for complaints of pain in both feet. The assessment was bilateral bunions. June 1992 X-rays of the feet showed findings consistent with bunion formation in both feet, more evident on the right side, where the hallux valgus deformity was also more evident. There were further complaints of bunions in July 1992. The veteran reported that she had experienced bunion deformity of both feet for years and it had recently become more severe. Examination showed moderate bunion deformity of the right foot with lateral deviation hallux and mild bunion deformity of the left foot. The assessment was hallux abductus valgus with the right foot more than the left foot. In August 1992, examination showed no changes in the bunions. On the initial post-service VA orthopedic examination in October 1993, the impression was bilateral bunions and hallux valgus of the right great toe. The veteran reported that she developed bunions sometime before she entered active service, and she said they became worse during basic training. At November 1994 RO hearing, the veteran testified that she had only slight protrusions on her feet prior to service, but that her feet became painful in service in response to running and marching. Her father testified that the veteran's bunions became more severe in service. In September 2001, the VA doctor who was treating the veteran for her foot deformities reported that he had reviewed the veteran's service medical records and noted she had mild bunions when she went into service, and that based on her medical records and her activities in service, it was more likely than not that her - 3 military service caused he foot symptoms and deformity to increase in severity. VA outpatient treatment records reflect that the V A doctor performed a right bunionectomy in April 2000 and a left bunionectomy in January 2002. VCAA Although the Veterans Claims Assistance Act of2000 (VCAA), Pub. L. 106-475, 114 Stat. 2096, became effective during the pendency of this appeal, the Board finds it unnecessary to address its applicability to this appeal in view of the favorable disposition. reached herein. Analysis A. New and material Evidence to reopen the claim for service connection for bilateral bunions The Board denied service connection for bilateral bunions in March 1997. That decision is considered final, with the exception that the claim maybe reopened is new and material evidence has been submitted since then, and if so reopened, the claim will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7104; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). Since the 1997 Board decision, A VA podiatrist has reported that the veteran's foot deformity and symptoms increased during service. Such evidence is both new and material, and the Board concurs with the VA Decision Review Officer that the case is reopened. The appeal will, therefore reviewed de novo. B. Service connection considered on a de novo basis A preexisting injury or disease will be considered to have been aggravated by active 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 - 4 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 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service. 38 C.F.R. § 3.306(c). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or if clear and unmistakable evidence demonstrates that the injury or the disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. In determining whether service connection is warranted for a disability, the VA is responsible for determining whether the. evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The VA treating physician has reviewed the veteran's service medical records and entire history. It is his judgment that it is more likely than not that the veteran's activities in service caused the bunion condition to increase in severity. The VA doctor has the requisite medical expertise, has had complete review of the veteran's service medical records, and his opinion is reasoned and persuasive. Accordingly, the Board finds that the positive and negative evidence of record is at least in relative equipoise and that the benefit of the doubt rule applies. Where the - 5 benefit of the doubt doctrine applies, the claim must be allowed. 38 U.S.C.A. § 5107 (West 2002); see also 38 C.F_R. § 3.102 (2003); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for post-operative residuals of bilateral bunions is granted. MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals - 6 - -