Citation Nr: 1752940 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-04 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a left foot disability. 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from June 1986 to November 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction of this matter is currently with the RO located in Denver, Colorado. In June 2017, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. FINDINGS OF FACT 1. The Veteran's right and left foot disabilities were specifically noted at the examination when the Veteran was accepted and enrolled for active service. 2. The Veteran's pre-existing right and left foot disabilities underwent a permanent worsening beyond normal progression during active service. 3. The Veteran's right and left ankle disabilities are associated with the right and left foot disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability have been met. 38 U.S.C. §§ 1110, 1131, 1153 (West 2012); 38 C.F.R. §§ 3.303, 3.304(b), 3.306 (2017). 2. The criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 1131, 1153 (West 2012); 38 C.F.R. §§ 3.303, 3.304(b), 3.306 (2017). 3. The criteria for service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 1131, 1153 (West 2012); 38 C.F.R. §§ 3.303, 3.304(b), 3.306 (2017). 4. The criteria for service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 1131, 1153 (West 2012); 38 C.F.R. §§ 3.303, 3.304(b), 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board grants the Veteran's claims. The RO will be responsible for addressing any notice defect with respect to rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). 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. See VAOPGCPREC 3-2003. When no pre-existing condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Mere history provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304 (b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Therefore, to rebut the presumption of soundness under 38 U.S.C.A. § 1111, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. Id.; see also VAOPGCPREC 3-2003. The second prong may be rebutted with clear and unmistakable evidence establishing that either (1) the disability underwent no increase in severity during service, or (2) any increase in severity was due to the natural progression of the condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Wagner, 370 F.3d at 1096). By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245-6 (1994) (the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") The Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or abdominal cramps, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of neurologic and orthopedic pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). During the June 2017 Board hearing, the Veteran testified that he has residuals of right and foot injuries that existed prior to service, but that his symptoms increased in severity during service beyond the natural progression of the respective diseases. Specifically, he contends that the rigors of active service resulted an increased in disability that required multiple corrective surgeries and ongoing symptoms ever since service. A review of the Veteran's service treatment records reveals that private medical records submitted in conjunction with entering active service documented that the Veteran had undergone left foot os calcis osteotomy and plantar fasciotomy secondary to bilateral pes cavus June 1980. In April 1982, he had a right foot wedge osteotomy, first open cuneiform, modified McBride's procedure and resection of both sesamoids. In March 1983, he had right foot interphalangeal fusion, extensor hallicus longus transfer, and capsulotomy of the first metatarsal phalangeal joint. The June 1986 enlistment examination report showed a history of prior bilateral foot surgeries with residual scarring. Service treatment records dated in April 1990 show that the Veteran underwent a right foot hallux valgus corrective surgery-reverse Austin osteotomy. In February 1991, he underwent right foot removal of hardware, scar revision, and skin graft of great toe. A service treatment records dated in July 1992 shows that the Veteran was said to have experienced right foot trauma. X-rays did not reveal evidence of a fracture. In January 2006, he was treated for left foot pain, and in February 2006, he was seen for right great toe pain. X-rays revealed right first metatarsal phalangeal joint disease and hallux valgus. In August 2007, the Veteran was treated for bilateral foot pain and referred for additional treatment. In January 2008, he underwent right calcaneal osteotomy, gastroc recession, extensor digitorum longus (EDL) tendon transfer, first metatarsal phalangeal lengthening, second metatarsal phalangeal shortening, and bone graft secondary to cavus foot deformity. X-rays dated in December 2008 showed degenerative changes of the left talonavicular joint. In April 2010, the Veteran was treated for reported right great toe pain and left foot fourth and fifth digit capsulitis and neuritis of plantar digital nerves; orthotics were prescribed. A pre-discharge examination report dated in August 2010 shows that the Veteran reported constant pain in both heels and the right great toe. He also described stiffness, swelling, and fatigue while standing or walking. He denied current treatment. He asserted that his military duty had worsened his condition by wear and tear creating a necessity for additional surgeries. The pre-discharge examiner observed painful motion and tenderness of both feet. Right foot hallux rigidus with a severe degree of rigidity was noted. The examiner stated that the Veteran had limitations with standing or walking and was able to stand for 15 to 30 minutes. Right great toe shortened deformity was noted. The examiner added that the left foot turned in at rest and he was unsteady on the left toes. The examiner stated that he required shoe inserts, which did not relieve the symptoms and pain. Neurological findings revealed abnormal motor function of the left foot demonstrated by weakness. The examiner also noted left foot absent sural and lateral plantar nerve sensory function and no light touch sensation to the superficial peroneal nerve. X-rays showed increased sclerosis and bony fusion of the first digit on the right. Left foot X-ray results were within normal limits. The examiner also noted left calf atrophy with weakness of muscle groups XI and XII and loss of sensation lateral left foot and toes four and five. The diagnosis was sensory and muscular nerve damage-left calf, status post-surgery. A VA examination report dated in July 2011 shows that the Veteran reported constant bilateral foot pain, stating that he needed to shift his feet while standing. He was able to stand for up to one hour. He noted decreased sensation and mobility of the left fourth and fifth digits. He added that the condition was treated with over-the-counter non-steroidal anti-inflammatory drugs. The VA examiner observed no painful motion or tenderness of either foot. Calcaneal alignment was normal and the examiner noted no right toe interphalangeal range of motion due to prior fusion. The examiner opined that the current bilateral foot condition, diagnosed as bilateral congenital cavovarus, status post reconstruction, was not due to or aggravated by any specific event while in service, but was a result of the natural progression of disease secondary to bilateral congenital cavovarus. A medical consultation report by Cameron J. Field, D.P.M., dated in May 2017, shows that the Veteran provided a history consistent with that as set forth above. Dr. Field explained that initially after undergoing the bunion repair and attempted fusion, due to his military career, he had increased activity levels which were beyond the ability for his feet to sustain. As a result, subsequently, he had to undergo several surgeries that were not affiliated with the initial bunion surgery that was performed prior to his enlistment into active service. Dr. Field added that there were multiple occasions where it was likely that his symptoms were exacerbated due to the nature of being in the military, and these exacerbating symptoms would cause increased flare ups and joint changes along the foot area which would result in the chronic plantar fasciitis, the attempted revisions to surgeries, and other isolated surgeries to help alleviate some of his pain and discomfort. Dr. Field opined that these surgeries were largely attributed to his being on his feet for extended periods of time, undergoing higher-impact activities, and the significant demands that were placed on his feet. In its capacity as finder of fact, the Board finds that the Veteran's right and left foot disabilities were noted at entrance into active service. Although the entrance examination concluded that the Veteran was fit for duty, this does not diminish the fact that the Veteran's pre-existing disabilities were documented. 38 C.F.R. § 3.304 (b); VAOPGCPREC 3-03 (July 16, 2003); McBurney v. Shinseki, 23 Vet. App. 136, 139 (2009) ("[T]he Board, as the final trier of fact, is not constrained by favorable determinations below."). As the Veteran's condition was noted at entrance by both the Veteran and, more importantly, the examining physician, and as the Veteran, private treatment providers, and VA examiners have all stated that the Veteran had pre-existing right and left foot disabilities, the question before the Board is whether the Veteran's condition was aggravated beyond its normal course during service. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Service connection is possible for the disability on the basis of aggravation. 38 U.S.C. § 1110. Aggravation 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. § 1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). It is noted that temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. at 247-48; Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Likewise, evidence of a Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. at 320. Thus, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Having carefully considered the evidence of record, the Board finds that such evidence does not clearly and unmistakably show that the Veteran's pre-existing right and left foot disabilities were not aggravated beyond the normal course during active service. In this regard, while the VA examiner in July 2011 concluded that the asserted disabilities were not due to or aggravated by any specific event while in service, but rather a result of the natural progression of disease secondary to a bilateral congenital cavovarus; the May 2017 opinion of Dr. Field concludes that the multiple corrective surgeries undertaken in service were the result of an exacerbation of symptoms caused by the nature of activity consistent with the rigors of active service. In light of the diversity of opinions as to whether the Veteran's disability was aggravated by active service, the Board concludes that the evidence is at the very least in relative equipoise, and certainly not clearly and unmistakably against the claim. Although the Board is not required to accept medical authority supporting a claim, VA must provide reasons for rejecting such evidence and, more importantly, must provide a medical basis other than its own unsubstantiated conclusions in support of a determination. Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, the Veteran has consistently asserted that his symptoms became worse during his period of active service. He has competently and credibly reported the worsening of his disability. See Barr, 21 Vet. App. at 311; Falzone, 8 Vet. App. at 402 (the Veteran's repeated complaints of foot pain in service signaled an aggravation of his pre-existing foot disorder). Post-service medical treatment records note the continued efforts to treat his ongoing right and left foot disabilities. While the VA examiner in July 2011 concluded that the Veteran's pre-existing foot disability was not aggravated beyond its natural progression during active service, the opinion of Dr. Field, coupled with the testimony of the Veteran, does not support a finding that it is clear and unmistakable that the disability did not undergo an increase in severity. Therefore, and in accordance with 38 C.F.R. § 3.306, service connection for a right and left foot disability is established. With respect to the asserted right and left ankle disabilities, service treatment records show that in 2008, the Veteran underwent right calcaneal osteotomy, gastroc recession, EDL tendon transfer, first metatarsal phalangeal lengthening, second metatarsal phalangeal shortening, and bone graft secondary to cavus foot deformity. X-rays showed degenerative changes of the left talonavicular joint. According to Dr. Field, the multiple corrective surgeries undertaken in service were the result of an exacerbation of the pre-existing right and left foot symptoms caused by the nature of activity consistent with the rigors of active service. Based on this opinion and the competent and credible testimony of the Veteran, and in light of the establishment of service connection for the right and left foot disabilities herein, the Board resolves all reasonable doubt in favor of the Veteran, finding that service connection for right and left ankle disabilities be granted. ORDER Service connection for a right foot disability is granted. Service connection for a left foot disability is granted. Service connection for a right ankle disability is granted. Service connection for a left ankle disability is granted. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs