Citation Nr: 1307148 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 07-22 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a left foot disability, to include pes planus and foot drop. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. The Veteran served on active duty from August 1943 to February 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2006 of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for a left foot disability (listed as left foot drop). In January 2008, the Veteran appeared at a personal hearing at the RO. A transcript of the hearing is in the Veteran's claims file. In January 2009, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. In February 2009, the Board, in pertinent part, remanded the issue of entitlement to service connection for a left foot disability for further development. In a December 2009 decision, the Board denied the Veteran's claim for entitlement service connection for a left foot disability. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2010, the parties (the Veteran and the VA Secretary) filed a joint motion which requested that the Board's decision be vacated and remanded. A June 2010 Court Order granted the motion. In October 2010, the Board remanded this appeal for further development. The issue has been recharacterized to comport with the evidence of record. FINDING OF FACT The Veteran's left foot disability, to include pes planus and foot drop, began during service. CONCLUSION OF LAW The criteria for service connection for a left foot disability, to include pes planus and foot drop, have been met. 38 U.S.C.A §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal as to the issue of entitlement to service connection for a left foot disability, to include pes planus and foot drop. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Where service medical records are not available, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran contends that he has a left foot disability, to include pes planus and foot drop, that is related to service. The Veteran specifically maintains that he was treated for left foot problems during service. He reports the he had left foot weakness that began during service in 1944, and that he was diagnosed with intermittent left foot drop at Fort Hayes in Columbus, Ohio. The Veteran essentially indicates that he was treated for left foot problems during service and that he has had left foot problems since service. The Veteran's service treatment records show treatment for variously diagnosed left foot problems. A July 1943 entrance examination report noted, as to an evaluation of the Veteran's feet, that he had second degree pes planus. A December 1943 treatment entry noted that the Veteran was seen for pain in his left instep. A January 1944 entry indicated that the Veteran was seen for pain in his left foot for one week. It was noted that the Veteran had an old foot injury that existed prior to service. A February 1944 entry noted that the Veteran was seen for pain in his left foot and that he had second degree flat feet. There was a notation that the Veteran was sent to Fort Hayes in Columbus, Ohio, for a consultation. A February 1944 report from the Outpatient Clinic at Station Hospital at Fort Hayes, in Columbus, Ohio, indicated that the Veteran had pain in the long arch of his left foot for one month. It was noted that X-rays were negative. The examiner stated that because arch supports were not available, a period of rest was advised. A March 1944 treatment entry noted that the Veteran was seen for stress on the arch of his left foot. No diagnosis was provided. A May 1944 entry noted that the Veteran was seen for callosities. A January 1946 separation examination report indicated, as to an evaluation of the Veteran's feet, that he had third degree pes planus with eversion that existed prior to service. Post-service private and VA treatment records show treatment for variously diagnosed left foot problems, including pes planus and drop foot. There are multiple private and VA opinions of record addressing the etiology of the Veteran's claimed left foot disability. VA examiners provided opinions pursuant to April 2009, December 2010, and August 2011 VA neurological examination reports. VA physicians also provided etiological opinions in February 2011 and November 2012, respectively. A private physician, F. A. Ariosta, M.D., provided further etiological opinions in April 2010 and June 2010. The opinions of record are contradictory in that some are positive in regard to the Veteran's claim and some are negative. All of the opinions were provided after a review of the Veteran's claims file. For example, a June 2010 statement from Dr. Ariosta indicated that it was his professional opinion the Veteran's pes planus and foot drop were service-connected and that the pes planus, which did exist prior to the Veteran's induction, became worse during his period of service. Dr. Ariosta stated that the Veteran's left foot drop began while he was in service and was never addressed properly by physicians at Fort Hayes, in Columbus, Ohio, and that it was likely that the entire current condition was related to the events in service. Dr. Ariosta, after carefully examining the Veteran's Army medical records relating to his pes planus and foot drop, said it was his opinion that the foot drop was more likely than not service-connected and service-aggravated. A December 2010 VA neurological examination report related a diagnosis of mild left foot drop. The examiner concluded that it was as likely as not (50/50 probability) that the Veteran's left foot drop was related to his service in the military. The examiner indicated that the medical records quoted by Dr. Ariosta gave a compelling description of an intermittent left foot drop being present in 1944. The examiner stated that the Veteran's examination revealed a present mild left foot drop. The medical evidence of record shows that the Veteran was treated for left foot problems during service, including pes planus. Additionally, post-service private and VA treatment records reflect that the Veteran was treated for left foot problems, to include pes planus and left foot drop. There are multiple conflicting opinions of record regarding whether or not the Veteran's left foot disability is related to service. Essentially, the private opinions of record support service connection and the VA opinions of record do not support service connection, although a VA examiner, in a December 2010 VA neurological examination report, supported, at least in part, the June 2010 opinions provided by Dr. Ariosta. The Veteran is competent to report left foot symptoms in service, continuous left foot symptomatology since service, and current symptoms that form the basis for diagnosis of disability, and the Board finds that the Veteran's account of in-service occurrence and continuity of symptoms to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Resolving any doubt in the Veteran's favor, the Board finds that the evidence is in equipoise as to whether the Veteran has a left foot disability, to include pes planus and foot drop, that had its onset during his period service. Accordingly, service connection is warranted. ORDER Service connection for a left foot disability, to include pes planus and foot drop, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs