Citation Nr: 1047231	
Decision Date: 12/20/10    Archive Date: 12/22/10

DOCKET NO.  08-15 916	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, 
Kentucky


THE ISSUE

Entitlement to service connection for neuropathy of the right 
foot.


REPRESENTATION

Appellant represented by:	Kentucky Department of Veterans 
Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. L. Anderson, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1984 to April 1988.  

This matter comes before the Board of Veterans' Appeals (BVA or 
Board) from a January 2007 rating decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Jackson, 
Mississippi.  Jurisdiction over the Veteran's claims file was 
subsequently transferred to the Louisville, Kentucky RO.

The Veteran provided testimony at an October 2010 Travel Board 
hearing before the undersigned at the RO.  A hearing transcript 
is associated with the claims folder.


FINDINGS OF FACT

The competent and probative evidence is in approximate balance as 
to whether the Veteran's current right foot problems began in 
active military service.


CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, right 
foot neuropathy was incurred in active service.  38 U.S.C.A. §§ 
1101, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's 
duty to notify and assist claimants in substantiating their 
claims for VA benefits, as codified in pertinent part at 38 
U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 
3.159, 3.326(a) (2010).  In view of the disposition herein, 
additional discussion of those procedures is unnecessary as any 
defect in the notice or assistance provided to the Veteran 
constituted harmless error.

II.  Service Connection

A.  Applicable Law

Service connection may be granted for disability which is the 
result of disease or injury incurred in or aggravated by service.  
38 U.S.C.A. § 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) 
(2010). 

Where there is a chronic disease shown as such in service or 
within the presumptive period under 38 C.F.R. § 3.307 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.  This rule does not mean that any 
manifestation in service will permit service connection.  To show 
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, as 
distinguished from merely isolated findings or a diagnosis 
including the word "chronic."  When the disease identity is 
established, there is no requirement of evidentiary showing of 
continuity.  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity after 
discharge is required to support the claim.  38 C.F.R. § 
3.303(b).

Service connection may be granted for disease that is diagnosed 
after discharge, when all the evidence, including that pertinent 
to service, establishes that the disease was incurred in service.  
38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).

The Court of Appeals for Veterans Claims has held that, in order 
to prevail on the issue of service connection, there must be:  
(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 
present disease or injury.  Hickson v. West, 12 Vet. App. 247, 
253 (1999).

It is the Board's responsibility to evaluate the entire record on 
appeal.  See 38 U.S.C.A. § 7104(a).  When there is an approximate 
balance in the evidence regarding the merits of an issue material 
to the determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  38 
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of 
Appeals for Veterans Claims held that an appellant need only 
demonstrate that there is an "approximate balance of positive 
and negative evidence" in order to prevail.  The Court has also 
stated, "It is clear that to deny a claim on its merits, the 
evidence must preponderate against the claim."  Alemany v. 
Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

B.  Facts and Analysis
 
The Veteran contends that he has a current right foot neuropathy 
that is related to an accident that occurred during active 
service.  Specifically, as outlined in the Veteran's September 
2008 statement and his October 2010 testimony before the Board, 
in October 1986, during a field training exercise in California, 
a 204-pound, 8-inch artillery round fell onto the Veteran's right 
foot from a height of approximately 8 to 10 inches as the Veteran 
and others were unloading a truck of ammunition.  It struck his 
toes and the outside edge of his foot.  A medical corpsman was 
called immediately and wrapped the Veteran's foot with tape.  The 
Veteran was unable to seek additional medical treatment because 
he was out in the field.  He completed the training exercise, and 
a week later, was seen at a medical clinic.  X-rays showed no 
fracture or other bony abnormalities.  The Veteran's toes were 
taped again and he was told to elevate the foot when he could.  
He stated he might have been given light duty for a few days as 
well.  

The Veteran's service treatment records (STRs) confirm that in 
October 1986, a 204-pound round dropped onto his right foot.  A 
week later, he complained that his foot still hurt and had 
swelling with ambulation.  He had received ice and elevation 
treatment in the field.  Currently, he was ambulating with a 
limp.  Examination showed mild ecchymosis over the distal 
metatarsal joint of the fourth digit, mild edema over the region, 
and pain with palpation.  The doctor assessed "rule out" 
fracture versus bruised bone.  An X-ray was taken and was 
negative, however.  The doctor thus prescribed daily foot soaks 
in warm water and avoidance of prolonged weight bearing.  

The Veteran was seen by the doctor again nearly a week later.  He 
continued to have pain in his toes and the area between the 
fourth and fifth digits.  He had been on light duty for two 
weeks.  The doctor observed that the fifth digit of the right 
foot had slight ecchymosis at the base of the nail.  The Veteran 
had good range of motion of the toes without pain.  The doctor 
assessed a deep bone bruise and prescribed a "buddy splint" for 
the fourth digit with tape until the toe was completely healed.  

Several days later, the Veteran reported to the clinic with pain 
on the outside of his right foot.  On physical examination, the 
Veteran's foot still had ecchymosis at the distal aspect of the 
toenail, without erythema.  There was good capillary refill on 
blanching and good range of motion.  No appearance of edematous 
tissue was noted.  A slight grimace was noted upon palpation of 
the lateral aspect of the metatarsal region of the right foot.  
The doctor assessed a soft tissue injury and continued the buddy 
splint.  

On the Veteran's March 1988 Report of Medical History, completed 
for the purpose of his separation examination, the Veteran 
checked "no" next to "foot trouble."  Additionally, no 
abnormalities of the feet were noted in the separation 
examination report.  

Following separation from service, the first documentation of 
foot problems is in a February 2005 prescription note from Summit 
Medical Group.  The note states that the Veteran dropped a 204 
pound round on his right foot in California at a Marine base and 
had had neuropathy of the right foot since that time.  The doctor 
referred the Veteran to VA for further treatment.  




A February 2006 treatment note from the Summit Medical Group 
indicates that the Veteran had intermittent right foot pain.  The 
doctor noted the history of injury as described above, and 
assessed neuropathy of the right foot.  

The Veteran was afforded a VA examination in October 2006.  The 
examiner reviewed the Veteran's STRs and noted the 2005 Summit 
Medical Group note.  The Veteran told the examiner that he began 
experiencing discomfort in the right foot several years after his 
discharge from service.  He currently experienced dull pain with 
an occasional burning sensation at the head of the fourth and 
fifth metatarsal areas and down the lateral aspect of the right 
foot.  The pain had gradually worsened, and his family doctor at 
Summit Medical Group told him to take Ibuprofen for the pain.  
The Veteran said that his doctor had told him that he had 
neuropathy secondary to his injury in service.  He was employed 
as a deputy jailer, where he had worked for the past 17 months.  
He had lost no time from work due to his foot pain.  He had cut 
back on the time he served as a volunteer firefighter, however, 
because carrying the heavy equipment aggravated the pain in his 
foot.  On physical examination, there was no swelling, deformity, 
or asymmetry of the right foot compared to the left.  There was 
no tenderness to compression , and no objective evidence of 
painful motion, edema, instability, or weakness.  There was 
slight tenderness elicited when pressure was applied over the 
fourth and fifth metatarsal heads.  X-rays of the foot showed 
fusion of the cuneiforms and third metatarsals bilaterally, which 
it was thought might be causing the Veteran's pain due to altered 
mechanics.  There was no evidence of fracture.  The examiner 
assessed metatarsalgia.  He opined that is was less likely as not 
that the metatarsalgia was due to the service-related foot 
injury, citing to the in-service diagnosis of a bone bruise with 
no fractures.  Moreover, the fusion of the cuneiforms and third 
metatarsals bilaterally was not related to or due to service-
related injury, and there was no evidence of neuropathy.  

In a January 2008 VAMC note, the doctor assessed chronic right 
foot pain.  The Veteran reported that the pain was intermittent, 
and occurred three times per day.  It was somewhat relieved with 
Ibuprofen.  The doctor recommended Tylenol instead of Ibuprofen, 
in light an unrelated digestive condition.

In April 2008, a VAMC doctor wrote that the Veteran had had 
persistent right foot pain that had gradually worsened over the 
years since dropping a round on it while in the military.  The 
doctor opined that his foot pain was at least as likely as not 
related to his injury in the military.  The doctor recommended 
continued treatment with Tylenol and aspirin as needed.  

In October 2010, the Veteran testified that, although he had 
experienced pain in his right foot since the 1986 injury, he did 
not seek professional medical treatment due to the cost of health 
care.  Additionally, while still in active service, he was told 
that he should see a doctor about his right foot within a year 
after discharge.  However, he interpreted this to mean that he 
had only one year within which to seek treatment.  Thus, after a 
year passed, he did not think he was eligible for treatment.  

Based on the foregoing, the Board finds that the evidence is at 
least in relative equipoise as to whether the Veteran's right 
foot disorder is related to his active military service.  
Resolving reasonable doubt in his favor, the Board finds that the 
evidence demonstrates that the Veteran's right foot problems were 
incurred during active service.  

The Board bases its finding primarily on the 2006 opinion of the 
VAMC doctor and on the Veteran's statements regarding continuity 
of symptoms since the in-service foot injury.  The Veteran is 
competent to give evidence about what he experienced; for 
example, he is competent to discuss his current abdominal pain 
and other experienced symptoms.  See, e.g., Layno v. Brown, 6 
Vet. App. 465 (1994).  Moreover, the Federal Circuit Court has 
held that in certain situations, lay evidence can even be 
sufficient with respect to establishing medical matters such as a 
diagnosis.  Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 
(Fed. Cir. 2007), the Federal Circuit commented that competence 
to establish a diagnosis of a condition can exist when (1) a 
layperson is competent to identify the medical condition, (2) the 
layperson is reporting a contemporaneous medical diagnosis, or 
(3) lay testimony describing symptoms at the time supports a 
later diagnosis by a medical professional.  See also Davidson v. 
Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may 
comment on lay-observable symptoms).

Similarly, the Court of Appeals for Veterans Claims has held 
that, when a condition may be diagnosed by its unique and readily 
identifiable features, the presence of the disorder is not a 
determination "medical in nature" and is capable of lay 
observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  
Furthermore, lay evidence concerning continuity of symptoms after 
service, if credible, is ultimately competent, regardless of the 
lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 
451 F.3d 1331 (Fed. Cir. 2006).  However, the resolution of 
issues which involve medical knowledge, such as the diagnosis of 
a disability and the determination of medical etiology, requires 
professional evidence.  See Espiritu v. Derwinski, 2 Vet. App. 
492, 495 (1992).  

In the present case, the Veteran's foot pain is found to be 
capable of lay observation, and thus his statements constitute 
competent evidence.  The Board also finds his statements to be 
credible in light of his presentation at the October 2010 
hearing, and on the April 2008 opinion of the VAMC doctor.  The 
Board acknowledges the 2006 VA examiner's opinion that the 
Veteran's foot condition is not related to the in-service injury.  
The Board also notes that the examiner pointed out that the 
Veteran's foot pain could be related to the bilateral fusion of 
the cuneiforms with the third metatarsals.  However, at the 
October 2010 hearing, the Veteran denied having any left foot 
problems.  This is obviously a close case based on the evidence 
before the Board.  Placing greater weight on the opinion of the 
VAMC doctor and on the Veteran's statements, the Board finds, as 
noted above,  that the overall evidence is at least in 
approximate balance, as required for a grant of benefits under 
the reasonable-doubt doctrine.  

Thus, considering the statements of the Veteran, as well as the 
competent medical evidence of record, the Board will resolve 
reasonable doubt in the Veteran's favor and grant the claim.  See 
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra, 1 Vet. 
App. at 53 (1990). 




ORDER

Service connection for right foot neuropathy is granted.



___________________________
ANDREW J. MULLEN 
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs