Citation Nr: 1340346 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-40 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a left ankle and foot disorder. 2. Entitlement to service connection for a left knee disorder, to include as secondary to a left ankle/foot disorder. 3. Entitlement to service connection for a left hip disorder, to include as secondary to a left ankle/foot disorder. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from April 1967 to October 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision from the Department of Veterans Affairs, Regional Office located in Louisville, Kentucky (RO), which denied the benefits sought on appeal. The Veteran testified during a Board hearing before the undersigned held at the RO in August 2011. A copy of the hearing transcript has been associated with the claims folder. The Travel Board hearing was sufficient to fulfill his right to a hearing under 38 C.F.R. § 20.700(a) (2013). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issues of entitlement to service connection for left hip and left knee disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's April 1967 examination prior to enlistment shows he was evaluated with a left ankle condition, manifested by decreased eversion, and he reported a history of childhood left foot/ankle injury after he stepped on a piece glass and required surgical repair. 2. The Veteran's pre-existing left foot/ankle condition was likely aggravated by his period of active naval service. CONCLUSION OF LAW The criteria for service connection for left foot/ankle disorder have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duties to notify and assist is necessary. The Veteran seeks entitlement to service connection for his current left foot/ankle disorder. He contends that his pre-existing left foot/ankle condition was permanently aggravated by his period of active naval service. VA and private medical records show current diagnoses of loss of peroneal function and degenerative arthritis in his left ankle. In general, 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; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Id. 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. Where a preexisting disease or injury is noted on the entrance examination, as in the instant case, 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; 38 C.F.R. § 3.306(a). 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). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown 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. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. A finding of aggravation, however, is not conceded where the disability underwent no increase in severity during service based on 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). It is pointed out that the lack of aggravation may be shown 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 pre-existing condition. 38 C.F.R. § 3.306. In this case, the Veteran's April 1967 enlistment examination noted a finding of decreased eversion of the left ankle, and on the associated report of medical history, the Veteran reported a history of occasional swelling in his left ankle as well as left foot problems. Subsequent service treatment records show that the Veteran reported a childhood history of a left foot/ankle injury as the result of stepping on broken glass with his left foot, and which required surgical repair and stitches. As such, the Veteran did not enter active duty with sound left ankle/foot and the presumption of soundness does not attach. See 38 U.S.C.A. § 1111. Hence, left foot/ankle disorder was not incurred while on active duty. While the bilateral pes planus was not incurred during service, the Board must still consider the question of in-service aggravation of the pre-existing condition. See 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306(b). The evidence of record must first be reviewed to determine whether the Veteran's left ankle/foot condition underwent a permanent increase in disability during service. See Wagner, 370 F.3d at 1096; see also 38 U.S.C.A. § 1153, 38 C.F.R. § 3.306. Subsequent service treatment records show that four months following his enlistment, the Veteran presented with complaints that he felt like he left ankle "gives way" on occasion. See August 1967 service treatment record. On clinical evaluation, there was no evidence of swelling or instability in the ankle, there was full range of motion in the left ankle, and the tendon was considered intact. X-rays were negative for any abnormality in the left ankle/foot. An impression of questionable subluxation, left ankle, was provided, and the Veteran was prescribed medication. An October 1967 service orthopedic consultation report shows that he Veteran complained of repeated stumbling due to uncontrolled inversion of the left foot. The examining physician observed that the Veteran had noticeable atrophy in the left calf, approximately 3/4 of an inch less than compared to the right calf, and the Veteran walked on the lateral aspect of the plantar surface. There was no evidence of instability. The examining physician stated: "I see no reason to regard him for 1) separation or 2) surgery. Slight variation of normal human development highly compatible with full duty." A December 1967 periodic examination report shows that the Veteran was evaluated with "2+" instability in the left ankle with decreased eversion and decreased strength in the left foot, and with mild atrophy of the left calf. The Veteran's October 1968 examination prior to separation shows the Veteran received all normal evaluations. While the October 1968 separation examination report shows no abnormalities involving the left foot or ankle, the December 1967 periodic examination report shows additional symptomatology involving the left foot/ankle than were recorded on the April 1967 entrance examination report. There are no post-service treatment records for complaints of left ankle/foot problems until 1999. Subsequent VA and private treatment records beginning in 2007 show that the Veteran has regularly sought treatment for his left ankle/foot problems. The Board also recognizes that the United States Court of Appeals for Veterans Claims has stated specifically that a veteran's own statements are competent as to the observable injuries involving his feet and ankles, and continuity of pain since service. See Falzone v. Brown, 8 Vet. App. 398, 405-06 (1995). The Veteran has credibly reported that he repetitively injured his left ankle/foot while service on naval ships due to the rolling and pitching of the ship at sea, which is corroborated by his complaints noted in his treatment records. The Veteran has testified that working on naval ships during active service aggravated his left ankle/foot disorder, and he has continuously used over-the-counter medication to alleviate pain symptoms associated with his left ankle/foot disorder since then. See August 2011 Board hearing transcript. Although the medical records do not show that the Veteran sought any treatment for his bilateral foot problems prior to 1999 or consistently since 2007, the Veteran's statements are competent evidence of continuity of left ankle/foot problems. Beyond the lack of medical records, there is no reason to doubt the credibility of his lay statements. Moreover, the record does contain the favorable medical opinion from Dr. G.H. that shows the Veteran's period of service aggravated his pre-existing left ankle/foot condition. See April 2010 private medical statement. The Board observed that there is no indication in the record to doubt this private medical nexus opinion. Dr. H.'s evaluation can be accurately based on the Veteran's reports of his medical history, his experiences in service and subsequent post-service history. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (a medical opinion cannot be disregarded solely on the rationale that the medical opinion is based on a history provided by the veteran). The Veteran's statements regarding his continuity of symptomatology have already been found to be credible. Dr. H.'s favorable nexus opinion cannot be discounted merely because they relied on the Veteran's report of his history in formulating the medical conclusion. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (a medical opinion may be rejected if the Board finds that it is based on an incredible history presented by the veteran). The Board has considered the negative medical opinion by the VA examiner who concluded that the Veteran's period of service did not aggravate the Veteran's pre-existing left foot/ankle condition. See February 2010 VA examination report with August 2010 addendum statement. The Board acknowledges that the VA examiner's negative medical nexus opinion is based on a review of the claims folder, and the August 2010 addendum statement was rendered after a review of Dr. H's April 2010 private medical statement. That being said, it is unclear whether the VA examiner considered the findings in the December 1967 periodic examination report. Again, the December 1967 periodic examination report shows that the severity of the Veteran's left ankle/foot disorder was manifested by additional symptomatology observed on clinical evaluation. It is also unclear whether the VA examiner considered the Veteran's lay statements regarding continuity and severity of symptoms in conjunction with his medical conclusion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (providing that where a Veteran has provided credible lay testimony, and that lay testimony has not been rejected, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). Pertinently, the Veteran has argued that the VA examiner's assessment that he has been able to maintain 28 years of labor employment is misleading and inaccurate, as his employment at the Distillery involved primarily sedentary positions. As noted above, the Veteran's lay statements are considered competent and credible in this matter. In sum, the record shows that the Veteran has been diagnosed with loss of peroneal function and degenerative arthritis in his left ankle. Although the medical evidence establishes that the Veteran's left ankle/foot condition pre-existed his period of service, the weight of the competent medical evidence shows that the Veteran's pre-existing left ankle/foot condition was likely aggravated by his period of service. The medical evidence of record shows an increase in the Veteran's left ankle/foot condition from the time of his enlistment to his separation. In addition, Dr. H. provided a favorable medical nexus opinion on aggravation of the pre-service left ankle/foot condition. Consequently, the Board finds that the Veteran's left ankle/foot condition was permanently aggravated by his period of service. Hence, service connection for left ankle/foot disorder is warranted. ORDER Entitlement to service connection for left ankle/foot disorder is granted. REMAND The Veteran seeks service connection for left hip and left knee disorders, to include as secondary to his now service-connected left ankle/foot disability. After a review of the record, the Board finds that additional development is necessary prior to adjudication of the claim. In particular, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed left knee and left hip conditions, now that service connection has been established for the left ankle/foot disorder. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with 38 C.F.R. § 3.159(b) secondary service connection notice concerning these claims. 2. The RO/AMC should ask the Veteran to identify any outstanding records of pertinent VA and private treatment, and obtain those records. 3. Schedule the Veteran for a VA orthopedic examination of his left knee and left hip, which must include administration of x-rays. The examiner should review the Veteran's VA claims folder and a copy of this REMAND, and after a thorough examination, the examiner should clarify whether the Veteran has any current left hip and left knee disorders. The VA examiner should then provide opinions with a supporting rationale as to whether the Veteran has current left hip and left foot disorders that are at least as likely as not (a 50 percent or greater probability) etiologically related to service, or incurred or aggravated by his service-connected left ankle/foot disability. As discussed above, the examiner is informed that "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The RO/AMC should review the claims folder to ensure that all the foregoing requested development is completed, and to arrange for any additional development indicated. The RO/AMC should then re-adjudicate the claim on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond. The claim should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the Veteran unless he is notified. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs