Citation Nr: 1315328 Decision Date: 05/09/13 Archive Date: 06/28/13 DOCKET NO. 12-05 381 ) DATE MAY 09 2013 On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for left foot injury. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to January 1977. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision by the Columbia, South Carolina Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for left foot injury. FINDING OF FACT Left foot injury sustained during service produced symptoms and disability thereafter. CONCLUSION OF LAW Left foot injury was incurred in service. 38 U.S.C.A. §§1131, 5107 (West 2002); 38 C.F.R. §3.303(2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he sustained left foot injury during service and incurred disability that continued thereafter. VA has a duty to notify and assist a claimant in the development of a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board is granting the benefit sought on appeal, service connection for left foot injury. Therefore, it is not necessary to discuss VA's duties to notify or assist the Veteran in substantiating that claim. -2- Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including arthritis, may also be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has stated that, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296,302(1999). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of -3- manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. 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, 1 Vet. App. at 54. The Veteran had a medical examination in October 1976 for entrance into service. The examiner checked normal for the condition of the Veteran's feet. In an October 1976 medical history, the Veteran checked no for any history of foot trouble. In outpatient treatment in December 1976, the Veteran reported a two week history of left ankle pain since he slipped and sprained the ankle. He also reported pain in both feet. The treating podiatrist found evidence of pain on palpation of the left tibial tendon. The podiatrist's impression was left posterior tibial tendonitis. The podiatrist placed the ankle in a short leg walking cast, provided crutches, and instructed that the ankle be checked in three weeks. Treating clinicians also noted that the Veteran had flat feet. -4- On follow-up in January 1977, the Veteran reported that he had some discomfort in the left ankle when running. He also reported having pain in the arches of both feet when running. A physician found that he had symptomatic bilateral pes planus. A medical board recommended that the Veteran be separated from service due to his symptomatic bilateral pes planus. In September 2010, the Veteran sought service connection for left foot disability that began with a left foot injury during service. He stated that the injury was treated with a cast and crutches. The Veteran reported that during a home leave in December 1976 family and friends saw that he had a cast on that foot and used crutches. He submitted a September 2011 statement signed by seven family members and friends who reported having seen the Veteran wearing the cast in December 1976. On VA examination in December 2012 the Veteran reported the history of left foot injury during service treated by casting. He stated that he had ongoing trouble with that foot, with pain in the midfoot and forefoot. On examination, pain in the Veteran's feet was accentuated on manipulation. X-rays showed arthritis in the left foot. The examiner stated that the x-rays showed midfoot arthrosis most severe at the naviculocuneiform joint and the first metatarsophalangeal joint. The examiner also found that the Veteran has congenital bilateral pes planus. The examiner concluded that the Veteran's left foot symptoms were not due to pes planus. The examiner stated the opinion that the tibial tendon injury that the Veteran had during service would not cause the midfoot arthritis that was shown on 2012 x-rays. The examiner opined that it is less likely than not that the current left foot disability is related to the Veteran's service. In February 2013, the Veteran had a videoconference hearing before the undersigned Veterans Law Judge. The Veteran reported having twisted his left ankle and foot during service, and having had the foot and ankle casted as a result. He stated that soon after it was casted he also had excessive cold exposure of the foot. The Veteran's wife recalled the Veteran being on crutches when he was on home leave from service. The Veteran stated that left foot and ankle pain continued after the injury and through the present. He reported that he had worked as a truck -5- driver and had stopped working in 2011 due to arthritis in his left foot and other areas. He stated that before entering service he was physically active and did not have foot pain. The left foot tendon injury during the Veteran's service is documented in his service treatment records. The medical records do not indicate that symptoms associated with the injury resolved before the Veteran was separated from service. The Board finds credible the Veteran's accounts that left foot symptoms continued after service and through the present. Those accounts are evidence in favor of service connection that at least balance the VA examiner's opinion that the current left foot disorder is distinct and separate from the left foot injury during service. Resolving reasonable doubt in the Veteran's favor, the Board grants service connection for left foot injury. ORDER Entitlement to service connection for left foot injury is granted. MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals -6-