Citation Nr: 1007281 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-20 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for residuals of traumatic right foot injury. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. E. Costas, Counsel INTRODUCTION The Veteran had active military service from August 10, 1943 to October 18, 1943. This matter comes to the Board of Veterans' Appeals (Board) from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the Veteran's petition to reopen a previously disallowed claim for service connection for a right foot disability. In July 2006, the Veteran testified at a hearing at the RO before the undersigned. A transcript of the proceeding is of record. At the hearing, the Veteran withdrew his claim for service connection for bilateral flat feet. In May 2007, the Board advanced this case on its docket. 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2009). In a September 2006 decision, the Board determined that new and material evidence had been received and reopened the claim for service connection for residuals of a right foot injury, but remanded the issue for additional development. In a decision issued in December 2007, the Board denied the claim at issue and the Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In March 2003, as part of its early intervention program, VA's Office of General Counsel filed an unopposed motion requesting that the Court vacate the Board's decision and remand the case for further development and readjudication. The Court granted the motion later that month and returned the case to the Board for compliance with the directives specified. The Board revisited the matter in August 2008 and determined that service connection for residuals of a traumatic foot injury was not warranted. In August 2009, the parties agreed to remand the matter because the Veteran and his representative had not been notified that the claim had been transferred to the Board and afforded a 90 day period to submit additional evidence and argument in support of the claim. The Veteran received a letter in compliance with the Court's remand in September 2009. In November 2009, the Veteran's attorney requested a 45 day extension to submit additional evidence. This request was granted. The only additional evidence received was a January 2010 letter from the Veteran's attorney presenting argument in support of the Veteran's claim. No other additional evidence was received. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Clear and unmistakable evidence indicates the Veteran severely cut his right foot prior to military service severing the plantar muscles and resulting in a depression along the longitudinal arch of the foot. 2. The Veteran's right foot condition did not chronically worsen as a result of military service. CONCLUSION OF LAW The Veteran's preexisting right foot condition was not aggravated by military service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2009). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The Veteran was sent VCAA notice letters in December 2002, November 2003, March 2006, October 2006 and November 2007. The letters provided him with notice of the evidence necessary to substantiate his claim, the evidence VA would assist him in obtaining, and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the content of the letter provided satisfactory VCAA notice in accordance with § 5103(a) and § 3.159(b)(1). In accordance with the requirements of VCAA, the letters informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private evidence was subsequently added to the claims files after the letters. The March 2006and November 2007 letters provided information concerning the evaluation or the effective date that could be assigned should service connection be granted. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Court has held, with regard to a petition to reopen a finally decided claim, the VCAA requires VA to provide the veteran with notice of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial (i.e., material evidence). Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the Board has reopened the previously denied claim. There is, therefore, no need to provide further VCAA notice on this aspect of the claim. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. At the time the Veteran filed the claim at issue, the record included his service treatment records (STRs), prior VA evaluations, VA medical certificates, an October 1959 letter from Charleston General Hospital, private medical affidavits, a private treatment record from Dr. H., his various lay statements, and private medical records from Dr. F. In developing his claim, he submitted additional lay statements. In October 2003, a hearing was held at the RO before a hearing officer. An additional hearing was also held before the undersigned in July 2006. In addition, VA examinations were afforded in December 2003 and January 2007. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no reported evidence that has not been obtained. All available evidence has been obtained and there is sufficient medical evidence on file on which to make a decision on the issue decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. All general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). No further development is required to comply with the provisions of the VCAA or the implementing regulations. Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will address the merits of the claim. Factual Background The report of the Veteran's May 1943 induction examination indicates he complained of an old injury of the left foot. Second degree pes planus was noted, but otherwise the examination was negative and the foot condition was not considered disabling. A September 1943 X-ray at the hospital at Camp Haan indicates there was a slight depression of the longitudinal arch of the right foot. The X-ray was otherwise negative for bone or joint pathology. The report of the October 1943 discharge examination indicates the diagnosis was "third degree bilateral flat feet with eversion." It was noted that the Veteran had a painful right foot due to an old injury caused by a glass cut that was incurred in 1942 - prior to his military service. His immediate commanding officer certified that the Veteran had flat feet and a painful right foot due to an old injury. It was determined that this injury was not incurred in service and had existed prior to induction. In May 1944, the Veteran filed a claim for a bad right foot, which he said was treated at Camp Haan hospital in August 1943. In May 1944, the RO requested information from the Adjutant General's Office. It was noted that the Veteran had been medically examined and accepted into military service in July 1943, but it was later determined that he did not meet the minimum physical standards for induction and he was discharged in October 1943. In June 1944, service connection was granted for weak foot bilateral (pes planus). The report of a May 1946 VA examination indicates the Veteran had a scar on his right foot 2 inches long. He said he had the scar at induction and that he originally hurt it in November 1942. He also alleged that he reinjured his foot while hiking and was consequently unable to return to full duty. Instead, he remained at the hospital until he was discharged and that he had not had any medical attention since discharge. The Veteran reported that he continued to have a "jagging" sensation in his right foot with exertion, but had no problems with flat feet or his left foot. He attributed his right foot trouble to the scar. On physical examination, the doctor noted a weak foot on the right resulting from the scar. The doctor said the severe cut on the right foot severed the plantar foot muscle and allowed the foot to sag. The doctor opined that the condition was aggravated by service, but did not offer further explanation. In September 1958, the RO severed service connection for weak foot after finding clear and unmistakable error in the prior June 1944 rating decision. An October 1959 letter from Charleston General Hospital indicates the Veteran was involved in a car accident in May 1959 and fractured the neck of his left femur and the calcis and calcaneous of the left foot. A May 1968 medical affidavit indicates the Veteran complained of pain and swelling in his right foot. No X-rays were taken. The diagnosis was traumatic tenosynovitis and early arthritis of the right foot. The diagnosis had initially been given for the left foot, but it was crossed out and changed to the right foot. An August 1969 medical affidavit indicates the Veteran said he injured his right foot in service and that this injury had progressed to a traumatic-type arthritis. No X-rays were taken. The diagnosis was progressive traumatic arthritis of the right foot. A January 1970 private medical record indicates the Veteran reported that he injured his right foot when a machine gun mount fell on it and severely lacerated the plantar surface of the lateral side of the right foot. He said it was sutured and he was taken to an army hospital. On objective examination, there was a depressed scar laterally with some sensitivity. He had good range of motion and power. Reflexes and sensation were intact. He walked well, but there was some tenderness over the medial side of the foot with some pain on forced torsion of that region. There was no tendon or peripheral nerve injury, but he had tenderness over the scar on the lateral side of the foot. In a January 1975 statement, the Veteran said his right foot was injured when he entered the army and he had had two accidents since then. He said he broke his back, left hip, and right leg in three places. He also said he had broken both legs and feet. In a May 1975 statement, the Veteran said that he cut his foot in September 1943 and received 43 stitches. He said it was still painful to walk on it when he was inducted. He said that while on active duty his foot "busted open" during a hike and he went to a VA hospital and was later discharged. At a June 1980 hearing, the Veteran said he cut his right foot prior to service and had no problems with the foot until his foot burst open during a hike while on active duty. He said he was taken to Camp Haan hospital and the foot was put in a temporary cast. He also said that he fell out of a boat and cut his foot two months before service and that it still hurt to walk on it. He said his foot never had time to properly heal prior to service. He said he was involved in two accidents after service - one in 1958 where he broke his left leg in three places and one in 1971 where he was run over by a car and broke both legs and feet. Private medical records from Dr. F. indicate the Veteran was treated for foot pain in 1996. It is unclear whether this was his right or left foot. In January and May 2003 statements, the Veteran, through his representative, said that despite complaints of pain from the preexisting injury, he was permitted to enter active service. He said the pain was exacerbated during a forced march. At the October 2003 hearing, the Veteran said that when he cut his foot prior to service, he was told that the soft tissues were cut and it would be difficult to heal. He said that it was 8 months before he could put weight on his foot. He said that when he went for his induction examination, he told the doctor about his right foot and he conferred with another doctor who qualified him for service. When asked about the induction report's reference to his left foot, the Veteran said that it was a mistake and that he had not had any problems with his left foot. He said that during active duty he hit his right foot with the leg of a machine gun mount. He said that he went to Camp Haan and was told nothing was wrong except the prior injury. He said that he worked in the kitchen after that. In a February 2004 statement, the Veteran's brother submitted that he recalled that the Veteran had cut his foot while wading in a creek and received medical treatment. He said that the injury had pretty well healed prior to service and that the Veteran reinjured it during desert training and it was several months before he could walk unassisted and several years before it healed. He said the Veteran still has foot problems today. The report of December 2003 VA examination indicates the Veteran said that he injured his foot during service when a machine gun tripod stand hit his foot. An X-ray of the foot revealed small plantar spurs of the calcaneus. The interphalangeal joint spaces were grossly maintained. There was a mild pes planus deformity. The examiner opined that it was as likely as not that the Veteran had pes planus when he entered service and that the brief period of standing and marching on his foot may have had a minor influence on his ultimate discomfort in his feet, ankles, and legs. Degenerative joint disease of the right ankle was also noted as secondary to post-service injuries. In a May 2006 statement, the Veteran said that the injury prior to service and healed sufficiently for him to be inducted into military service. He said he reinjured his right foot while on active duty. At the July 2006 hearing, the Veteran said that his right foot began bothering him during a desert hike and that he could not finish it. Afterwards, he said he began working in the kitchen and policing outside. He did not go on any more field hikes. Later, he said he injured his right foot when a machine gun mount fell on his foot while walking on guard duty. He said he walked into it because his eyes were bleeding. The report of the January 2007 VA examination indicates the Veteran said that he cut his right foot before service and had 143 stitches. He said the ligaments of the right foot were cut and he was unable to walk without crutches for a period of time. He said that during a march while on active duty, he could not make it and was taken to medical personnel for an examination of his right foot. He said that could not do anything because of his right foot and that he worked in the kitchen and policed the area. After being discharged from service he worked an ash route hauling tubs of ashes from basements. He later was self-employed in a salvage yard. In 1971, he was struck by a vehicle and injured both feet. The examiner opined that the pre-service injury involved the ligaments of the arch of the foot and resulted in a mild to moderate pes planus deformity of the right foot. The examiner said that when asked whether the right foot pain was worse following his hiking injury, the Veteran said that the pain was no worse once the acute symptoms had resolved. The examiner concluded that there was no aggravation of the preexisting injury since the Veteran repeatedly said the pain was no worse and there was no indication in the medical records of any permanent aggravation. The examiner said the pain must have been temporarily worse on the day of the hike but returned to pre-service levels of pain following treatment with rest. The examiner also noted that while the Veteran did not return to full duty, he did a significant amount of work during service and did a lot of heavy work following military service. He has continued to have a history of right foot pain with activity, but the examiner said this was basically unchanged since the original injury. The Veteran's attorney argues that the evidence is in equipoise and thus, the Veteran's claim should be granted. Governing Statutes and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, three elements must be met: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) [noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"]. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1) (2009). 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. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2009). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2009). A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306- 7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Legal Analysis The report of the Veteran's induction physical noted a preexisting left foot injury instead of a right foot injury. The Veteran consistently claimed that he cut his right foot prior to service and that the induction report referencing the left foot was a mistake. A history provided by a Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. See 38 C.F.R. 3.304(b)(1); see also Gahman v. West, 13 Vet. App. 148, 150 (1999) [recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners]; Crowe v. Brown, 7 Vet. App. 238 (1995) [supporting medical evidence is needed to establish the presence of a preexisting condition]. There is no evidence at the time of entrance showing that the Veteran had a preexisting right foot disorder. Thus, the presumption of soundness is applicable and clear and unmistakable evidence must demonstrate that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. The Veteran's statements have been consistent with regard to the fact that he cut his right foot prior to service. This self-reported history, while not in and of itself sufficient to rebut the presumption of soundness, nonetheless can be considered together with all other material evidence in determinations as to inception of a disability to make this threshold preliminary decision. See 38 C.F.R. § 3.304(b)(1). His brother also confirmed that this injury occurred prior to service. Furthermore, all the medical records after the induction physical conclude that he had a preexisting right foot injury. These statements and medical reports are uncontroverted. After careful consideration of this evidence, the Board holds that the statements and medical reports are clear and unmistakable evidence that the Veteran had a right foot injury at the time he entered service. The Board so holds on the basis of the benefit-of-the-doubt doctrine. The presumption of soundness having been rebutted, the Board's analysis then turns to whether there exists clear and unmistakable evidence to rebut the presumption of aggravation. As noted, a pre-existing injury will be considered to have been aggravated by active military, naval or air 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). Temporary or intermittent flare-ups during service of a pre- existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a preexisting condition was aggravated by military service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran's statements concerning the severity of the preexisting right foot injury at the time of induction versus at the time of his discharge have been inconsistent. The Veteran has stated that his right foot did not bother him and had mostly healed at the time of induction. Contrary to this, he has also said that the preexisting injury had not healed and that he continued to have foot pain at the time of induction. Regardless, in his most recent statements at the January 2007 examination, he said the level of pain in his right foot was the same after service as it was prior to service - at least after the acute symptoms resolved. The Veteran's statements concerning the exacerbation of the right foot condition have also been inconsistent. He has maintained that he developed right foot pain during a forced march and was unable to complete the march. Later, he also mentioned having hit his foot with a machine gun mount. Regardless, it is apparently that something happened during active duty that resulted in pain or discomfort in his right foot because an X-ray was taken at Camp Haan in September 1943. The results of that X-ray, however, were negative except for a slight depression of the longitudinal arch of the right foot. There are no reports of any medical treatment following that X-ray. Apparently the foot was treated with rest and he was placed on light duty. The essential question is whether the pain in his right foot was a temporary flare-up of the preexisting condition or an actual worsening in the severity of the underlying condition. The May 1946 VA examiner said that the foot condition was caused by the cut that severed the plantar muscles of his right foot. The examiner stated the condition was aggravated by service, but did not explain how the underlying disability increased in severity or whether this aggravation was permanent in nature. The objective findings did not show a worsening of the underlying condition. The December 2003 VA examiner noted that the pes planus deformity might have been influenced by standing and marching, but did not comment on whether this was a permanent worsening of the underlying condition. The September 2007 examiner did not believe that there was a permanent worsening of the underlying condition. To support his opinion, the examiner noted that he asked the Veteran whether he believed the right foot was worse following his military service and his response was that the pain was the same. Apparently the examiner repeated this question during the course of the examination and received the same answer. The examiner also noted that although the Veteran did not return to full duty, he was able to do significant work in the kitchen and policing the area. He also performed very heavy labor in his civilian life for many years after he was discharged - that is until the accident in 1971 where he broke his legs and feet. The examiner reviewed the Veteran's STRs in detail, considered other lay and material evidence, and concluded that there was no aggravation of the right foot condition during service. Because the examiner offered a rationale, his opinion is especially probative. The evidence does not indicate the Veteran required medical treatment for his right foot for many years after discharge. A May 1968 medical affidavit indicates the Veteran had tenosynovitis and early arthritis due to previous trauma and surgical repair, but no X-rays were taken. The January 1970 record from Dr. H. gave an inconsistent history involving a laceration of the plantar right foot when a machine gun mount fell on it. At that time, the Veteran had good range of motion and power in his right foot. There was no evidence of tendon or peripheral nerve injury. Other than pes planus, the only symptoms involved subjective reports of sensitivity over the lateral side of the right foot in the area of the scar. For these reasons, and based on all the evidence of record, the Board finds that the Veteran's right foot disability clearly and unmistakably preexisted service, and clearly and unmistakably was not aggravated by active military service. The Board is aware of the burden on VA to demonstrate, by clear and unmistakable evidence, that the preexisting right foot disorder was not aggravated by service. The evidence in this case meets this high standard. The Board is cognizant of the correct legal standards for application in this case as interpreted by VAOPGCPREC 3-2003 and by the Court in Wagner; at no time has the Board shifted this burden to require the Veteran to prove aggravation. In this decision, the Board has adjudicated the Veteran's claim in compliance with applicable law and regulatory provisions, specifically including the clear and unmistakable evidence standards of preexistence and nonaggravation (the burden being on VA) delineated in Wagner and VAOPGCPREC 3- 2003. The Board understands and has properly maintained the burden on VA to show by clear and unmistakable evidence, that the Veteran's preexisting right foot disability was not aggravated by service. This legal burden is reflected in the Board's decision findings of fact, conclusions of law, legal citations to Wagner, 38 USC 1111, VAOPGCPREC 3-2003, and Doran v. Brown, and in the findings reflected in the reasons and bases. The Board never put the burden on the Veteran (or the evidence) to show increased severity in service, as hinted, but not explicitly stated, during the appeal on behalf of the Veteran. Notwithstanding misleading assertions to the contrary during the appeal, the Board has looked at all the evidence that might pertain to aggravation of preexisting disability in making its determination as to whether the evidence clearly and unmistakably showed nonaggravation in service. The well-settled case law establishes that the definition of "aggravation" is permanent worsening of the underlying disability. The Board's discussion of why the evidence clearly and unmistakably shows nonaggravation will necessarily include use of the language of whether permanent worsening in severity of the underlying right foot disability occurred, which will include comparison of pre-service severity of right foot disability with post-service severity of right foot disability. The use of such language in this Board decision does not reflect a shifting of the burden to the Veteran to prove aggravation, only an analysis of whether aggravation in service occurred (the burden still on VA to clearly and unmistakably show nonaggravation). If not even the symptoms of disability increase, this is some evidence that the underlying disability did not increase in severity. 38 C.F.R. § 3.306(a) ("increase in disability during service"). The regulation and case law establish that "aggravation" has specific meaning - an increase in severity of the underlying condition. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991) (even exacerbation of symptoms during service does not constitute evidence of aggravation); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (flare-up of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability); Townsend v. Derwinski, 1 Vet. App. 408 (1991); Routen v. Brown, 10 Vet. App. 183, 189 (1997) ("a lasting worsening of the condition"); Verdon v. Brown, 8 Vet. App. 529, 538 (1996) (if disorder was no more disabling than it was at entrance into service, the disorder is not aggravated). With regard to the suggestion raised during the appeal that the Board's finding of clear and unmistakable nonaggravation as evidenced, in part, by a continuation of preexisting symptomatology during service, is a substitution of its own unsubstantiated medical opinion, citing Colvin v. Derwinski, 1 Vet. App. 171 (1991), the Board's finding in this Veteran's case regarding continuance of preexisting symptoms during service was a factual finding, not a medical finding. Such an assertion evidences a lack of understanding of the Board's fact finding role in the VA adjudication process. Comparing symptoms prior to service, as evidenced by both competent lay and medical evidence, with those in service, as evidence by both competent lay and medical evidence, is a fact finding requirement for the VA adjudicator, who is charged with weighing and considering all evidence, lay and medical, in making the adjudicative finding of nonaggravation. Just as a claimant is competent to assert symptoms of disability at any time, the Board as fact-finder not only may, but must, consider such symptoms reported by the claimant as evidence, as well as symptoms not complained of, along with the medical evidence, that bears on the relevent question of whether preexisting disability was not aggravated in service. See, e.g., 38 U.S.C.A. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record . . ."); 38 U.S.C.A. § 5107(b) ("consider all information and lay and medical evidence of record in a case"); 38 U.S.C.A. § 1154(a) (requiring due consideration of "all pertinent medical and lay evidence"); 38 C.F.R. § 3.304(b)(2) (where presumption of soundness attaches, a history of pre-service existence of disability is to be based on a careful correlation of "all material facts"; clinical data, official records prior to, during, and after service, "together with all other lay and medical evidence . . . will be taken into full account"). In this case, the clear and unmistakable (obvious or manifest) evidence has demonstrated both preexistence and nonaggravation of right knee disability in service. Consequently, the Board finds that the presumption of soundness of the Veteran's right foot at induction to service is rebutted by evidence that the right foot disability clearly and unmistakably existed prior to his entry into service and clearly and unmistakably was not aggravated by active service. 38 U.S.C.A. §§ 1111, 1113, 1132; 38 C.F.R. §§ 3.304, 3.306. As the standard is clear and unmistakable evidence on VA to rebut the presumption of sound condition at service entrance, a burden which has been met for the reasons explained, the rule of resolving reasonable doubt in the Veteran's favor is not applicable in this case. ORDER The claim for service connection for residuals of a right foot injury is denied. ____________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs