Citation Nr: 1342814	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  09-12 241	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for a right foot disability, including as secondary to service-connected residuals of a right leg gunshot wound.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1948 to February 1954, including service in Korea.  His awards and decorations include the Purple Heart Medal and the Combat Infantryman Badge.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which, in relevant part, denied entitlement to service connection for right foot, bilateral shoulder, and low back pain.  

In a February 2013 rating decision, the RO granted service connection for lumbar spine degenerative disc disease, and degenerative joint disease of the bilateral shoulders.  Thus, the Veteran's appeal with respect to those claims was satisfied.  

The issue of entitlement to an increased disability rating for service-connected right leg gunshot wound residuals has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See August 2006 claim.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  Service connection is in effect for residuals of a right leg gunshot wound. 

2.  The Veteran has current right foot pain neuropathy as a result of his right leg gunshot wound residuals. 


CONCLUSION OF LAW

The criteria for entitlement to service connection for a right foot disability as secondary to service-connected right leg gunshot wound residuals have been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board's decision represents a grant of the benefit sought on appeal.  No further discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013), is necessary.

I.  Governing Law and Regulations

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013).

Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder.  See 38 C.F.R. § 3.310(a) (2013).  

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 claimant.  See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

II.  Analysis

Service connection is in effect for residual of a right leg gunshot wound, specifically rated as a residual scar.

The evidence of record shows that the Veteran suffers from right lower foot pain with neuropathy.  He has additionally been diagnosed with degenerative joint disease of the right first metatarsophalangeal joint.  Thus, he has a current right foot disability.  

While a June 2011 VA examiner concluded that the Veteran's right foot degenerative joint disease was less likely as not caused by or a result of his service-connected gunshot wound injury, the examiner did not further consider whether his diagnosed right foot neuropathy was secondary to his service-connected gunshot wound residual.  Thus, the examiner's opinion is of limited probative value.

In contrast, other medical evidence of record establishes a relationship between the Veteran's right foot pain with neuropathy and his service-connected right leg gunshot wound residuals.  Most notably, opinions provided by the Veteran's treating VA physician in June 2007 and March 2010 have related the right foot pain with neuropathy to the service-connected right leg gunshot wound.  In addition, VA treatment records note that the Veteran had been suffering from right foot pain that was secondary to old bullet wound trauma.  

The Veteran clearly has additional disability due to a service-connected disease or injury, and accordingly, the Board finds that the criteria for service connection under 38 C.F.R. § 3.310(a) are met for a right foot disability as secondary to the Veteran's service-connected right leg gunshot wound residuals.  

Resolving reasonable doubt in the Veteran's favor, service connection claim for a right foot disability, as secondary to service-connected right leg gunshot wound residuals is granted.  38 U.S.C.A. § 5107(b) (West 2002).


ORDER

Entitlement to service connection for a right foot disability, as secondary to service-connected right leg gunshot wound residuals, is granted.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs