Citation Nr: 1621496 Decision Date: 05/27/16 Archive Date: 06/08/16 DOCKET NO. 09-21 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1965. This case was previously before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in February 2015, when it was remanded for further development. In September 2013, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran's claim for service connection for a right knee disability is REMANDED to the Agency of Original Jurisdiction. FINDING OF FACT A right foot disability first manifested in service. CONCLUSION OF LAW A right foot disability is the result of an injury incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2014). Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). The Veteran's service medical records are negative for any complaints or clinical findings of a right foot disability. In February 1965, the Veteran was issued a cotton soft cast for an unspecified disability. Several days later, he was given an Ace bandage and analgesic balm for an unspecified disorder. During the April 1965 service separation examination, the Veteran responded, "No," when asked if he then had, or had ever had, swollen or painful joints; cramps in the legs; arthritis or rheumatism; bone, joint, or other deformity; lameness; a "trick" or locked knee; foot trouble, or neuritis. The examiner noted that there was nothing of clinical significance. On examination, the feet, lower extremities, and neurologic processes were found to be normal. VA treatment records dated from March 1992 to June 2015 show that the Veteran continued to complain of multiple joint pain, including of the right foot. In April 1996, the Veteran was treated by N. J. T., D.P.M., for a long history of intermittent pain on the ball of his right foot. The Veteran did not recall a specific injury to that area of the foot but stated that he had sprained his right ankle on multiple occasions. Following a workup, the diagnosis was metatarsalgia. In August 2007, the Veteran's treating chiropractor found that the Veteran had chronic, severe right ankle strain as the result of tripping over a tree root, while running in service. The chiropractor noted that since 2000, the Veteran had reported foot pain on more than half of his visits. In May 2009, L.B., a friend of the Veteran before and after service, said that prior to service, the Veteran had been difficult to keep up with but that after service the Veteran had right foot problems. L.B. noted that the Veteran had reportedly hurt the foot in service. In August 2015, the Veteran was examined by VA to determine the nature and etiology of any right knee or foot disability found to be present. It was noted that the Veteran had a history of a right foot sprain in 1965. He reported right foot neuropathic pain, burning pain, shooting pain, and a hot sensation of the right foot. He denied pain on touch or with pressure. X-rays confirmed the presence of bilateral chondrocalcinosis. The diagnoses were bilateral osteoarthritis of the knees and bilateral chondrocalcinosis. The VA reviewer opined that it was less likely than not, less than 50 percent probability, incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's records showed he was placed in a soft cast, and then later placed in an ace wrap. However, the examiner found no objective evidence in the Veteran's service medical records which supported the Veteran's contentions of any residuals of a 1965 injury. It was noted that the veteran had worked for many years after he got out of service, the last 11 years of his career at a VA medical center. The VA examiner stated that there was not a single mention of foot pain in the Veteran's clinical records. The VA examiner noted that the chiropractor's opinion stating that the Veteran's foot pain was likely related to service. However, that opinion was given without objective review of the service treatment records. The examiner further noted that imaging did not support a chronic condition dating back to service. The examiner concluded that there was simply no objective evidence that supported a chronic condition which had its onset during service. During the September 2013 hearing, the Veteran testified that when he fell in service, his primary injury involved the right foot. He stated that he had experienced right foot pain since that time and that service connection was, therefore, warranted for the residuals of that injury. After reviewing the foregoing evidence, the Board agrees. On balance, the foregoing evidence is in relative equipoise as to whether or not the Veteran's has a right foot disability related to service. Although the recent VA examiner found the preponderance of the evidence against the claim, the Board notes that the Veteran's report of his initial injury in service has been consistent. In addition, the issuance of a soft cast and an elastic wrap in service is consistent with a right ankle sprain or right foot disability. The Veteran's lifelong friend has substantiated the Veteran's claim of chronic right foot problems after service by setting forth facts which are capable of lay observation. The Veteran also reported a history of multiple right ankle sprains to his podiatrist, and the Veteran's chiropractor opined that the Veteran's chronic right foot problems were associated with service. The Board finds that there is an approximate balance of evidence both for and against the claim. Therefore, the Board will resolve all reasonable doubt in favor of the Veteran. Accordingly, the Board finds that service connection for the residuals of a right foot injury is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Service connection for a right foot disability is granted. REMAND During the hearing, the Veteran suggested that his right knee disability was the result of a long history of compensating for right ankle problems. In light of the foregoing decision, further development of that aspect of the appeal is warranted prior to further appellate consideration. Accordingly, the case is remanded for the following action: 1. Schedule the Veteran for an orthopedic examination by a medical doctor examiner who has not previously examined or treated him. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The examiner must review the claims file and should note that review in the report. The examiner should diagnose all right knee disabilities found. For each right knee disability diagnosed, the examiner should identify and explain the elements supporting each diagnosis. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a right knee disability is proximately due to or the result of a service-connected right foot disability. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a right knee disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by a service-connected right foot disability. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a right knee disability was incurred in service or is related to any incident of service. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs