Citation Nr: 1327525 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-49 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for traumatic arthritis of the first metatarsophalangeal joint of the right foot. 2. Entitlement to service connection for traumatic arthritis of the first metatarsophalangeal joint of the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1956 to April 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from March and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In those decisions, the RO declined to reopen the Veteran's claim for service connection for traumatic arthritis of the first metatarsophalangeal joint of the right foot as it was found that new and material evidence had not been submitted to reopen the claim. Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). In May 2013, the Veteran testified during a Videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. From the date of the hearing, the record was held open for 60 days to allow for the submission of additional evidence. In June 2013, additional medical evidence was submitted, accompanied by a waiver of initial RO consideration. This evidence has been considered by the Board in the decisions below See 38 C.F.R. § 20.1304 (2012). A review of the Veteran's Virtual VA electronic claims file is negative for any additional information or evidence pertinent to the claims decided herein. FINDINGS OF FACT 1. Service connection for traumatic arthritis of the first metatarsophalangeal joint of the right foot was most recently denied in a July 1996 rating decision; the Veteran did not appeal. 2. The evidence received since the July 1996 rating decision is neither cumulative nor redundant, related to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for traumatic arthritis of the first metatarsophalangeal joint of the right foot. 3. The Veteran's traumatic hallux varus disability of the right foot was noted at entry into active military service and is shown to have increased in severity therein; however, the evidence does not clearly and unmistakably show that it was not aggravated by military service. CONCLUSIONS OF LAW 1. The July 1996 rating decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1100, 20.1103, 20.1104 (2012). 2. New and material evidence has been received sufficient to reopen that claim of entitlement to service connection for traumatic arthritis of the first metatarsophalangeal joint of the right foot. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The Veteran's preexisting traumatic hallux varus disability of the right foot was aggravated during military service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA describes VA's duties to notify and assist veterans 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, 3.326(a) (2012). In light of the favorable decisions herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. I. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). In this case, as noted above, service connection was denied for traumatic arthritis of the first metatarsophalangeal joint of the right foot in July 1996. The RO noted that the Veteran's service treatment records failed to show that his preexisting right foot condition had been permanently aggravated by his active military service. It concluded that in the absence of such evidence, service connection must be denied. Evidence of record at the time of the July 1996 decision included the Veteran's service treatment records, which show that approximately 5 years prior to his enlistment in active military, he stepped on a rusty nail, which resulted in loss of motion and osteomyelitis of his right foot. Two years prior enlistment in active military service, he underwent arthroplasty of his right big toe, which was presumably a fascial arthroplasty of his right big toe. Defects noted at the time of his enlistment examination in November 1956 included traumatic hallux varus of the right foot and scar on the posterior right thigh. His physical profile was "1" in all areas, to include his lower extremities, and his physical category was listed as "A." In October 1957, nearly one year after enlistment, the Veteran was referred for orthopedic consultation related to complaints of recurrent pain and limitation of motion of his right big toe. X-ray examination showed osteochondromatosis and eburnation of the bones surrounding the metatarsophalangeal joint of the great toe. There was evidence of surgical defect and evidence of some destruction and widening of the joints, which was noted to undoubtedly be the result of old osteomyelitis and septic arthritis. There was no definite activity at that time. Orthopedic consultation in November 1957 showed very restricted range of motion of the first metatarsophalangeal joint. The only treatment that could offer any appreciable relief was major surgical treatment with resection of the proximal half of the proximal phalanx, together with a superficial cleaning up of the distal part of the metatarsal. If and when he felt that his right foot pain had become unbearable, he was return for the contemplated surgery. In the mean time, he was given a metatarsal bar in hopes that it would relieve some of the motion of the first metatarsophalangeal joint. At that time, he was given a permanent physical profile of "3" pertaining to his lower extremities due to severe post infection and post traumatic arthritis of the first metatarsophalangeal joint. In February 1958, the Veteran was seen on sick call on three occasions due to complaints of pain. X-ray examination of his right foot did not reveal any additional findings or evidence of activity since the November 1957 x-ray examination. On a separate occasion, he requested pain medication to assist him with sleep due to foot pain. It was subsequently noted that he did not experience any significant relief with the metatarsal bar. In March 1958 it was noted that right foot pain was incapacitating at times. On orthopedic reevaluation in April 1958, there was restricted range of motion of the first metatarsophalangeal joint of the right great toe, bony thickening at the joint and irregularity near the articular surface of the metatarsophalangeal joint, and osteochondromatosis at the joint. Diagnostic assessment was hallux rigidus with severe traumatic arthritis of the right great toe metatarsophalangeal joint, which was noted to have existed prior to service and not have been permanently aggravated by service. It was recommended that he be considered for discharge. In April 1958, the Veteran underwent examination to determine his physical fitness for retention in active military service. He was diagnosed with pes planus, scar on the first and second toes of his right foot, and hallux rigidus and arthritis of the right foot due to trauma which existed prior to service. His physical profile at that time with respect to his lower extremities was "4," and his assigned physical category was "E." It was recommended that he be separated from active military service due to severe arthritis due to trauma of the fist metatarsophalangeal joint of the right great toe with nearly rigid joint. Such condition was found to have existed prior to service, was not incident to his military service, and it was not permanently aggravated by active service. The Veteran was discharged from military service effective April 29, 1958, following one year and five months of active military service as a light weapons infantryman. The Board notes that the Veteran's DD Form 214 also shows that the Veteran received his parachutist badge. In addition, a health record abstract of service shows that he was assigned to a Special Forces Airborne Group at Fort Bragg from at least May to August 1957. Evidence added to the record since the July 1996 decision includes, in relevant part, the Veteran's testimony at the May 2013 Videoconference hearing and a June 2013 private treatment record with a medical opinion concerning in-service aggravation of the claimed disability. During the May 2013 hearing, the Veteran testified that he indeed injured his right foot when he was 13 years old. During service, he completed light weapons infantry training, advanced infantry training, and jump school training prior to being stationed at his permanent duty station at Fort Bragg, North Carolina where he was assigned to the 77th Special Forces Group, Airborne. During his military training, his right foot bothered him occasionally, however, it was merely a nuisance to him and he continued training without issue. Sometimes around January 1958, he reportedly performed a nighttime jump in windy conditions, which caused him to overextend his right foot and great toe to the rear. Following that incident, his right foot pain became debilitating. The Veteran's representative referenced a letter of the Veteran dated in 1962 that described the incident and conditions in detail, which caused him to hit the ground very hard. The representative indicated that since 1962, the Veteran has maintained that his preexisting right foot injury was aggravated during the aforementioned alleged parachuting incident. During the hearing, the undersigned agreed to hold the record open for 60 days to allow for the Veteran to submit a medical opinion in support of his claim and the Veteran indicated that he wished to waive initial RO consideration of any additional evidence submitted from the date of the hearing. In June 2013, the Veteran submitted a private treatment record and medical opinion from Dr. ENB, DPM. Following examination of the Veteran and his right foot, Dr. ENB diagnosed painful hallux and first metatarsophalangeal joint of the right foot secondary to hallux rigidus of the first metatarsophalangeal joint of the right foot, osteoarthritis of the first metatarsophalangeal joint of the right foot, and abnormal gait of the right foot secondary to hallux rigidus of the right foot. After reviewing the Veteran's military records, performing a history and physical examination, and reviewing x-rays of the right foot taken at that time, Dr. ENB opined that the pain in the Veteran's first metatarsophalangeal joint of his right foot is secondary to hallux rigidus and osteoarthritis, which have developed over may years subsequent to injury sustained during the described parachuting jump incident during military service in 1958. He indicated that military records from 1957 to 1958 recognized the presence of a hallux varus prior to the claimed injury in 1958, but no hallus rigidus. Examinations in 1958 following the alleged injury, however, recognized the presence of the hallux rigidus of the first metatarsophalangeal joint of the right foot. He further started that it is not unusual to develop osteoarthritis and a hallux rigidus following an injury such as the one described by the Veteran during military service. He concluded that it is almost a 90 percent possibility and probability that the hallux rigidus developed from the claimed parachuting injury in 1958. Upon close review of the evidence pertaining to this claim, the Board has concluded that new and material evidence has been submitted to reopen the claim of entitlement to service connection for traumatic arthritis of the first metatarsophalangeal joint of the right foot. As discussed, the RO initially denied the Veteran's claims because the evidence did not establish that the claimed disability, which preexisted the Veteran's active military service, was aggravated during his active military service. This new evidence relates to unestablished facts necessary to substantiate the Veteran's claim, and presents a reasonable possibility of substantiating it. See 38 C.F.R. § 3.156. Accordingly, the Board finds that there is sufficient new and material evidence to reopen the Veteran's claim of entitlement to service connection for traumatic arthritis of the first metatarsophalangeal joint of the right foot. II. Service Connection In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first 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). Service connection may also be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran 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. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered " aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Given these provisions, the standard of proving a claim based on "aggravation" changes depending on whether the pre-existing disability was noted on the entrance examination report, or whether it was not but the presumption of soundness is nevertheless rebutted. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, the Veteran alleges that he had a preexisting right foot disability that was aggravated by injury sustained during a parachuting jump during active military service in 1958. As noted above, the Veteran's enlistment examination in November 1956 noted the presence of traumatic hallux varus of the right foot and a posterior right thigh scar. Thus, the evidence of record clearly establishes the Veteran's traumatic hallux varus of his right foot preexisted his military service. Having found that a pre-existing disorder was noted upon entry into service, 38 U.S.C.A. § 1153 applies and the burden falls on the Veteran to establish an increase in severity in service. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If so, the presumption of aggravation under 38 U.S.C.A. § 1153 arises, and the burden shifts to the government to show a lack of aggravation by clear and unmistakable evidence establishing that the increase was temporary or due to the natural progress of the condition. In October 1957, nearly one year after enlistment, the Veteran was referred for orthopedic consultation related to complaints of recurrent pain and limitation of motion of his right big toe. X-ray examination showed osteochondromatosis and eburnation of the bones surrounding the metatarsophalangeal joint of the great toe. There was evidence of surgical defect and evidence of some destruction and widening of the joints, which was noted to undoubtedly be the result of old osteomyelitis and septic arthritis. There was no definite activity at that time. Orthopedic consultation in November 1957 showed very restricted range of motion of the first metatarsophalangeal joint. H was given a metatarsal bar in hopes that it would relieve some of the motion of the first metatarsophalangeal joint. At that time, he was given a permanent physical profile of "3" pertaining to his lower extremities due to severe post infection and post traumatic arthritis of the first metatarsophalangeal joint. In February 1958, the Veteran was seen on sick call on three occasions due to complaints of pain. On a separate occasion, he requested pain medication to assist him with sleep due to foot pain. It was subsequently noted that he did not experience any significant relief with the metatarsal bar. In March 1958, it was noted that right foot pain was incapacitating at times. On orthopedic reevaluation in April 1958, there was restricted range of motion of the first metatarsophalangeal joint of the right great toe, bony thickening at the joint and irregularity near the articular surface of the metatarsophalangeal joint, and osteochondromatosis at the joint. Diagnostic assessment was hallux rigidus with severe traumatic arthritis of the right great toe metatarsophalangeal joint, which was noted to have existed prior to service and not have been permanently aggravated by service. It was recommended that he be considered for discharge. In April 1958, the Veteran underwent examination to determine his physical fitness for retention in active military service. He was diagnosed with pes planus, scar on the first and second toes of his right foot, and hallux rigidus and arthritis of the right foot due to trauma which existed prior to service. His physical profile at that time with respect to his lower extremities was "4," and his assigned physical category was "E." It was recommended that he be separated from active military service due to severe arthritis due to trauma of the fist metatarsophalangeal joint of the right great toe with nearly rigid joint. Such condition was found to have existed prior to service, was not incident to his military service, and it was not permanently aggravated by active service. The Veteran was discharged from military service effective April 29, 1958, following one year and five months of active military service as a light weapons infantryman. The Board notes that the Veteran's DD Form 214 also shows that the Veteran received his parachutist badge. In addition, a health record abstract of service shows that he was assigned to a Special Forces Airborne Group at Fort Bragg from at least May to August 1957. In October 2012, the Veteran was afforded a VA examination to determine whether his preexisting right foot condition was aggravated by his military service. Following a review of the claims file and examination of the Veteran, the examiner opined that the claimed disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated by an in-service injury, event, or illness. The examiner reasoned that the Veteran's pre-service injury and treatment of his right foot was considered to be severe in nature. X-ray examination of the Veteran's right foot on separation examination in April 1958 was performed too soon after the claimed parachuting injury with injury of the right foot earlier in 1958 to show such severe changes due to parachuting jumps alone. Thus, the examiner concluded that the claimed disability is almost certainly due entirely to his pre-service right foot injury. He further indicated that it is likely that the rigors of the Veteran's service and military training temporarily aggravated his right great toe, which resulted in him seeking treatment on sick call, however, the toe was not permanently aggravated since he did not required any additional treatment until 2000. He concluded that the medical history supports a finding of natural progression of the disease. To the contrary, however, in June 2013, the Veteran submitted a private treatment record and medical opinion from Dr. ENB, DPM. Following examination of the Veteran and his right foot, Dr. ENB diagnosed painful hallux and first metatarsophalangeal joint of the right foot secondary to hallux rigidus of the first metatarsophalangeal joint of the right foot, osteoarthritis of the first metatarsophalangeal joint of the right foot, and abnormal gait of the right foot secondary to hallux rigidus of the right foot. After reviewing the Veteran's military records, performing a history and physical examination, and reviewing x-rays of the right foot taken at that time, Dr. ENB opined that the pain in the Veteran's first metatarsophalangeal joint of his right foot is secondary to hallux rigidus and osteoarthritis, which have developed over may years subsequent to injury sustained during the described parachuting jump incident during military service in 1958. He indicated that military records from 1957 to 1958 recognized the presence of a hallux varus prior to the claimed injury in 1958, but no hallus rigidus. Examinations in 1958 following the alleged injury, however, recognized the presence of the hallux rigidus of the first metatarsophalangeal joint of the right foot. He further started that it is not unusual to develop osteoarthritis and a hallux rigidus following an injury such as the one described by the Veteran during military service. He concluded that it is almost a 90 percent possibility and probability that the hallux rigidus developed from the claimed parachuting injury in 1958. Given the Veteran's physical profile and physical category classification on enlistment, the subsequent significant worsening that occurred after approximately 11 months after enlistment during which the Veteran completed significant medical training and jump school, the assignment of a permanent limited physical profile of "3" pertaining to the lower extremities in November 1957 which was subsequently changed to "4" with a physical classification of "E" on separation examination in April 1958, reports that foot pain had become incapacitating at times by March 1958, and the subsequent diagnosis of hallux rigidus and traumatic arthritis of the right great toe metatarsophalangeal joint following his entry in service, the Board finds that there is credible and persuasive evidence that his disability increased in severity during service. Thus, the presumption of aggravation applies. Furthermore, in light of this record, the Board finds that there is no clear and unmistakable evidence that the preexisting right foot condition was not aggravated by the Veteran's military service so as to rebut that presumption. In summary, traumatic hallux varus disability of the right foot was noted at entry into active military service and is shown to have increased in severity therein; however, the evidence does not clearly and unmistakably show that it was not aggravated by military service. Thus, service connection for hallux varus of the the first metatarsophalangeal joint of the right foot with resulting hallux rigidus and traumatic arthritis of that same joint is granted. ORDER New and material evidence having been received, the application to reopen the previously denied claim of service connection for entitlement to service connection for traumatic arthritis of the first metatarsophalangeal joint of the right foot, is granted and the claim is reopened. Entitlement to service connection for traumatic arthritis and hallux rigidus of the first metatarsophalangeal joint of the right foot, is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs