Citation Nr: 1332142 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 12-05 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right foot disability, to include residuals of a right foot injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to April 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied entitlement to the benefits sought on appeal. Although the Veteran requested a Board hearing in his March 2012 VA Form 9, in an August 2013 statement, the Veteran withdrew his request for such a hearing. Therefore, the hearing request is considered withdrawn and the Board may proceed with the appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran claims that he is entitled to service connection for residuals of a right foot injury. He specifically claims that he injured his right foot in 1949, prior to service, and the preexisting injury was aggravated during service as a result of the hikes, running, and marching during boot camp. He states that his right foot kept getting worse during service and that he was given orthopedic boots during service. A review of the service treatment records reflects that the January 1953 pre-induction examination of the feet was normal. A June 1953 service treatment record notes that the Veteran's foot was broken in 1949. The diagnosis was possible post-traumatic arthritis. He was instructed to do warm soaks. A July 1953 service treatment record notes that the Veteran still complained of pain in the right foot. A January 1954 service treatment record notes that the Veteran had slight pes cavus and he was given arch supports. It was noted that the Veteran was given a two month profile of no marching or standing for more than half an hour at a time. In February 1954 it was noted that the Veteran was to get special built boots. A March 1954 service treatment record notes that the Veteran was on a reduced profile, which required that he not march or stand for more than a half hour at a time for one month. The April 1955 separation examination report notes normal examination of the feet. A March 2012 letter from a private physician indicates that the Veteran reported having a chronic history of pain in his right foot throughout the years. It was noted that the Veteran reportedly originally injured his right foot in 1949 when his foot was crushed. It was further noted that the Veteran reported worsening discomfort in his right foot with the strenuous physical training and boot camp. The private physician stated that recent X-rays revealed diffuse midfoot arthritis that are consistent with the Veteran's injury. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. See id. at 240 (holding that "asthma" was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that "bunions" were noted at induction examination where orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet."). In this case, the pre-induction examination report indicates that the examination of the Veteran's feet was normal. Therefore, no right foot abnormality was noted at service entrance and the Veteran presumed to have entered service in sound condition. As such, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. If VA fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not undergone a VA examination for the purpose of determining the nature and etiology of any current residuals of a right foot injury, whether there is clear and unmistakable evidence of record that a right foot disability preexisted service, and (b) whether there is clear and unmistakable evidence of record that any preexisting right foot disability was not aggravated by service. In the September 2013 informal hearing presentation, the Veteran's representative requested that the Veteran be afforded such a VA examination. Therefore, a remand is required in order to schedule the Veteran for a VA examination. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current right foot disability, to include residuals of a right foot injury. The claims file must be made available to the examiner in connection with the examination. The examiner should then offer an opinion as to: * Whether there is clear and unmistakable evidence (obvious and manifest) that a right foot disability, to include residuals of a right foot injury, existed prior to active service and, if so, whether there is clear and unmistakable evidence (obvious and manifest) that it was NOT aggravated beyond its natural course during active service. * If there is not clear and unmistakable evidence that a right foot disability, to include residuals of a right foot injury, existed prior to active service, is it at least as likely as not (a 50 percent or higher degree of probability) that current right foot disability is etiologically related to active service? The examiner should discuss any pertinent service treatment records, including the January 1953 pre-induction examination report showing normal examination of the feet; the June 1953 service treatment record noting that the Veteran broke his foot in 1949 and that the Veteran was then currently diagnosed with possible posttraumatic arthritis; the July 1953 service treatment record noting the Veteran's complaints of right foot pain; the January 1954 service treatment record noting slight pes cavus for which arch supports were given; the January 1954 service treatment record noting a two month limited profile requiring no marching or standing over half an hour at a time; the February 1954 service treatment record noting that the Veteran was to get special built boots; the March 1954 service treatment record showing that the Veteran was on a limited profile; and the April 1955 separation examination showing normal examination of the feet. The examiner should also discuss the March 2012 private medical opinion that the Veteran's current X-rays showing diffuse midfoot arthritis are consistent with his injury. All stated opinions should be supported by a clear rationale, and should include a discussion of the specific evidence on which the opinion is based. 2. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 3. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue a Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).