Citation Nr: 1326216	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  09-23 018	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for a right ankle disability. 

2.  Entitlement to service connection for a right foot disability. 

3.  Entitlement to service connection for a right knee condition. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A.M. Ivory, Counsel



INTRODUCTION

The Veteran had active military service from November 1966 to November 1968.  The Veteran is a recipient of the Purple Heart Award.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 

The February 2008 rating decision characterized the issue as entitlement to service connection for right foot, ankle, and knee injury; however, after a careful review of the Veteran's claims file the Board has recharacterized the issues as listed on the title page. 

The Board notes that the February 2008 rating decision denied service connection for bilateral hearing loss and, while the Veteran filed a Notice of Disagreement (NOD) in March 2008 and a Statement of the Case (SOC) was issued in May 2009, the Veteran did not appeal it on his June 2009 VA-9 Substantive Appeal.  Thus, the issue of entitlement to service connection for bilateral hearing loss is not before the Board. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal with the exception of an August 2013 brief by the Veteran's representative.  There are two rating decisions, November 2012 and February 2013, in the Virtual VA paperless claims processing system; however, they do not pertain to the issues on appeal and the Veteran has not filed a Substantive Appeal on either rating decision. 

The issue of entitlement to service connection for a right knee condition is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  Extending the benefit of the doubt to the Veteran, his right ankle disability is related to his military service.

2.  Extending the benefit of the doubt to the Veteran, his right foot disability is related to his military service.


CONCLUSIONS OF LAW

1.  By extending the benefit of the doubt to the Veteran, his right ankle disability is due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.307, 3.309 (2012).  

2.  By extending the benefit of the doubt to the Veteran, his right foot disability is due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Here, with regard to the issues herein decided, the decision below is granting in full the benefits sought.  Accordingly, even assuming that an 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. 

II. Analysis

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 may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  When such chronic diseases are at issue, the second and third elements for service connection may be established by showing continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a).  Id.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that his right ankle and foot disabilities are the result of an in-service crush injury to the right foot.  By granting the Veteran the benefit of the doubt the Board finds that service connection for both a right ankle disability and a right foot disability is warranted. 

The Veteran's service treatment records include a September 1967 Clinical Record Cover Sheet; it was stated that the Veteran had a "Crush injury (L) foot, no nerve or artery damage."  The injury was the result of the Veteran taking cover from sniper fire near Gia Ray, Republic of Vietnam on September 4, 1967; he hid behind a tank that pulled off and then ran over his foot.  He was also diagnosed with a "Ligament tear lateral (L) ankle" from the same accident.  He was awarded a Purple Heart as the result of this accident.  A September 3, 1967, Abbreviated Clinical Record stated that the Veteran had a "crushing injury to his RT foot."  A subsequent nurse note on September 4, 1967, stated that an ice pack was applied to the (L) foot.  The Board notes that the October 1968 Report of Medical Examination for Separation had "normal" checked for feet and lower extremities.  While the Veteran checked "yes" to broken bones on the October 1968 Report of Medical History for Separation the physician's summary only listed a broken right thumb at the age of 16.  The Veteran's service personnel records indicated "crushed foot" on September 4, 1967. 

The Veteran was afforded a VA joints examination in January 2008.  He reported that it was his right foot and right ankle that were injured when the tank backed over him and not his left foot and ankle.  He reported that he was in a field hospital in the Republic of Vietnam for two and a half weeks, on limited duty for two more weeks, and returned to full duty seven weeks after his initial injury.  There were no broken bones because when he got pushed he fell into some mud and straw that more or less cushioned him a bit.  He was diagnosed with right ankle strain and chronic right foot strain.  The VA examiner opined that it was as least likely as not that the Veteran's right ankle strain and chronic foot strain were caused by or a result of military service.  Her rationale was that it would be reasonable to assume that the Veteran's chronic right ankle and right foot pain would be in the same foot that got run over by the tank and it would be logical to assume that there were long term residuals.  It was noted that the Veteran did not have any diagnoses of the left foot. 

After a careful review of the Veteran's claims file, the Board finds that there are no negative medical nexus opinions of record and the only opinion of record relates the Veteran's right ankle and right foot disabilities to service.  The Board notes that it may reject a medical opinion that is based on facts provided by the Veteran which have been found to be inaccurate or because other facts present in the record contradict the facts provided by the veteran which formed the basis for the opinion. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the Veteran if rebutted by the overall weight of the evidence).  However, the Board cannot discount a medical opinion solely because it is based on history provided by the Veteran without also evaluating the credibility and weight of the history upon which the opinion is predicated.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005).  Further, the Board may not remand for VA medical opinion solely to controvert otherwise uncontroverted medical evidence favoring the appellant.  See Mariano v. Principi, 17 Vet. App. 305 (2003), and Kowalski v. Nicholson, 19 Vet. App. 171 (2005).  In this situation, while the Veteran's service treatment records state that the crush injury was to the left foot and ankle the Veteran has stated that the crush injury was to the right foot and he is competent to identify the foot that was crushed in service.  Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify a simple condition such as a broken leg but not types of cancer).  The Veteran's statements that it was his right foot that was injured in service were corroborated by the January 2008 VA examiner who found that the Veteran did not have a left foot disability and that the Veteran's current diagnoses were consistent with the reported in-service injury.  Thus, the Board finds that since the VA examiner's opinion to be probative in this case.  Moreover, there are no opinions of record that contradict the Veteran's statements or the VA examiner's opinion. 

Additionally, a layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  In addition, the Federal Circuit has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself.  The Board retains the discretion to determine the credibility and weight of all the evidence submitted, including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  Throughout the course of his communications with VA, the Veteran has consistently maintained that his in-service crush injury to the foot and ankle was to the right foot.  Since the Veteran is competent to report on the nature of his observable symptoms and to identify a simple condition such as a broken foot the Board finds that such consistency makes his statements credible.  The Board notes that there is no medical evidence of manipulation or malingering, nor are there medical opinions against a diagnosis of right ankle and foot disabilities.  

Thus, the Board finds that although the Veteran's service treatment records are contradictory as to whether it was a right or left foot/ankle injury, service connection is still warranted.  In addition to there being no negative nexus opinions of record, the Veteran's statements are wholly competent and credible, and, supported by the VA examiner of record.  

Given the totality of the evidence-to particularly include the credible lay assertions concerning the in-service injury-and resolving all reasonable doubt on the question of medical nexus in the Veteran's favor, the Board finds that the criteria for service connection for both a right ankle disability and a right foot disability are met.


ORDER

Service connection for a right ankle disability is granted. 

Service connection for a right foot disability is granted. 


REMAND

The Board's review of the claims file reveals that further RO action on the claim of entitlement to service connection for a right knee condition is warranted.

When the Veteran filed his claim for service connection in March 2007 he stated that he had a right knee condition.  As noted above, the February 2008 rating decision characterized the issue on appeal as entitlement to service connection for right foot, ankle, and knee injury.  While the RO developed the claims of entitlement to service connection for a right foot disability and a right ankle disability the issue of entitlement to service connection for a right knee injury was not developed; the January 2008 VA examiner did not discuss the Veteran's right knee, provide a diagnosis, or offer a nexus opinion.  Thus, the Board finds that on remand the RO should develop the Veteran's claim of entitlement to service connection for a right knee condition, to include affording the Veteran a VA examination to determine the current nature and etiology of any right knee condition.  

Prior to any VA examination, attempts should be made to obtain any outstanding records of pertinent medical treatment.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should take appropriate steps to contact the Veteran and request that he provide sufficient information, and if necessary authorization, to enable the RO/AMC to obtain any additional pertinent treatment records not currently of record.  Based on their response, the RO/AMC should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  

The RO/AMC should obtain all pertinent treatment records. 

If any records sought are not obtained, the RO/AMC should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken.  

2.  The RO/AMC should schedule the Veteran for a VA examination to determine the current nature and etiology of a right knee condition.  The claims file must be made available to the examiner and the examination report should include discussion of the Veteran's medical history and assertions.  All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.  

The VA examiner should answer the following questions:

A) Does the Veteran have a current disability(s) of the right knee?
 
B) For each diagnosed right knee disability, is it at least as likely as not (50 percent or greater) related to the Veteran's military service; to include the September 1967 crush injury?  (The Board notes that while a number of records do reflect an injury to the left foot and ankle, it has been conceded that it was in fact the right foot and ankle that were injured).  

The rationale for all opinions expressed should be provided in a legible report, and the examiner should consider and discuss the Veteran's lay statements in support of his claim when offering an opinion.  If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 

3.  The RO/AMC should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated.  The RO/AMC should then readjudicate the remaining claim on appeal.  If any benefit sought remains denied, the RO/AMC should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran the requisite time period to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  No action is required of the appellant unless he is notified.   

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the appellant until further notice.  However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim.  His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated.  The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655.

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
B. MULLINS
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs