Citation Nr: 1323297 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-33 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right club foot. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from September 5, 1967, to October 10, 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2011, the Veteran and his wife testified at a video hearing before the undersigned Veterans Law Judge, and a transcript of this hearing is of record. In May 2011, the Board denied the Veteran's claim for entitlement to service connection for a right club foot disability. The Veteran appealed. In an October 2012 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) reversed the Board's May 2011 finding that the presumption of soundness had been rebutted and remanded the matter for readjudication. FINDING OF FACT The right club foot disability was permanently aggravated by his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right club foot have been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all 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. 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 all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements 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). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). A veteran is 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, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. 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); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In July 2003, the VA General Counsel issued a precedent opinion, which held that, to rebut the presumption of sound condition under Section 1111 of the statute, 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. VAOPGCPREC 3-03 (July 16, 2003). 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. Id. A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in the disorder during such military service, unless there is a specific finding that the increase in the disorder 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 and manifest) is required to rebut the presumption of aggravation where the pre-service disorder underwent an increase in severity during the military service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the disorder. Aggravation may not be conceded where the disorder underwent no increase in severity during the military service on the basis of all the evidence in the record pertaining to the manifestations of the disorder prior to, during, and subsequent to the military service. 38 C.F.R. § 3.306(b). 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 "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). As noted above, the Veteran is seeking entitlement to service connection for a right club foot. He has asserted that he injured his right foot in service during a training exercise. Medical records establish that the Veteran currently has a right club foot disability. At issue is whether there is a relationship between the Veteran's current club foot disability and service. The Veteran's August 1967 pre-induction examination report is negative for any right foot disorder. He was re-examined on August 29, 1967, and it was again noted that no additional defects were discovered and that he was fit for active duty. Given these findings, the Veteran is presumed sound at induction. The Veteran and his wife testified at the video hearing and expressed in writings to the RO that the Veteran was born with a right club foot. The Veteran also reported that at the time of his induction examination, he notified the examiner of this disability, although there is no documentation of this fact in his August 1967 induction examination report. Service treatment records from September 1967, a few days after induction, including chronological records of medical care, a medical evaluation board, and a profile, note that the Veteran was born with a deformed right foot that was treated and partially corrected with braces. It was noted he was unable to walk/march correctly, and physical activity caused him pain. The diagnosis was residual of a right club foot deformity. The medical evaluation board thereafter opined that the disability pre-existed military service and recommended that the claimant be discharged because he did not meet enlistment standards at the time of his enlistment. In June 2008 and October 2009 letters, Dr. C.R., the Veteran's primary care physician, also opined that the Veteran's right club foot pre-existed his military service. Likewise, the June 2010 VA examiner opined that the Veteran's right club foot pre-existed his military service. Given the above record, the Board finds that clear and unmistakable evidence has been presented to show that the Veteran's right club foot pre-existed his military service. 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b). The first prong to rebut the presumption of soundness has been met. However, as noted above, the Board's inquiry does not end with a determination that the Veteran's right club foot clearly and unmistakably pre-existed service. The Board must also determine whether the Veteran's preexisting right club foot was aggravated during service. As will be discussed, the second prong to rebut the presumption of soundness has not been met. Service treatment records starting in September 1967 a few days after the Veteran's entry onto active duty noted that he was having problems with a painful right foot due to a deformity that caused him to be unable to walk/march/run correctly. The service treatment records are negative for objective evidence of any in-service injury to the right foot. Likewise, the post-service record is negative for any objective evidence of right foot problems due to the club foot until 2008 - over forty years after his 1967 separation from military service. However, in support of his claim, the Veteran has submitted two statements from his primary care provider, Dr. C.R.. In these statements, Dr. C.R. noted that the Veteran reported sustaining an injury during basic training when he jumped over a pit and hit his right foot. He claimed that since the in-service injury, he has a limp that had not resolved. In a June 2008 statement, Dr. C.R. opined that "after a review of medical evaluation, board records and physical examination, it is as likely as not that the service treatment, marching, crawling, etc. could have actually aggravated his right club foot." Subsequently, in October 2009, Dr. C.R. opined that "after a review of medical evaluation, board records and physical examination, his right foot condition was as likely as not aggravated beyond its normal progression by some event or injury in the service." In December 2008, the Veteran also submitted a notarized statement from M.C.R., a friend and fellow service member, who knew the Veteran in high school and enlisted at the same time the Veteran did. M.C.R. stated that he knew the Veteran had a right club foot prior to enlistment and was surprised that the Veteran would even be permitted to enlist, given his disability. He reported that although he and the Veteran were assigned to different companies, he still saw the Veteran every day and one day observed the Veteran on crutches. He remembered being told by the Veteran that he had injured his foot during a training exercise. When he did not see the Veteran for several days, he asked around, and was told that the Veteran had been discharged for because of his foot. At the April 2011 hearing, the Veteran and his wife testified that, while the claimant was born with a right club foot, the deformity did not cause him any problems prior to service and, in fact, he was able to play sports without pain and walk without a limp. However, ever since he injured his right foot landing wrong after jumping over a ditch when he was in basic training, he had chronic right foot pain and walked with a limp. The Veteran was afforded a VA examination in June 2010. The examiner concluded, after a review of the record on appeal and an examination of the claimant, that the Veteran's right club foot was not aggravated by his military service. The VA examiner opined as follows: . . . after a review of medical records, taking a history, performing a physical examination and a review of the medical literature the Veteran's pre-existing congenital right club foot is less likely as not permanently aggravated by in-service activities, injuries and/or events . . . as there is no evidence of any in-service injury and/or event in the [service treatment records] to include the evaluation on 9/8/1967 to support any acute finding on xrays or physical examination that altered the NATURAL history or progression of his congenital condition. In addition, the Veteran did not seek care for his pre-existing congenital right club foot condition for more than 40 years after military service. The VA examiner also opined that the Veteran's current problems with his right club foot were at least as likely as not caused by his post-service activities and employment as well as by the normal process of aging. Based on all the above evidence, the Board finds that VA cannot establish that it is clear and unmistakable that the Veteran's pre-existing right club foot disability was not aggravated by his active military service. As noted above, 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). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Here while there is some evidence that suggests that the Veteran's right foot disability was not aggravated by service, there is also evidence that supports the Veteran's claim. Thus, any finding that the Veteran's disability was not aggravated could not be said to be undebatable. Accordingly, the presumption of soundness is not rebutted, and entitlement to service connection for a right club foot is granted. The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for a right club foot is granted. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs