Citation Nr: 1802784 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-23 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for right leg tarsal tunnel syndrome, to include as secondary to service-connected degenerative disc and joint disease of the lumbosacral spine. 2. Entitlement to service connection for left leg tarsal tunnel syndrome, to include as secondary to service-connected degenerative disc and joint disease of the lumbosacral spine. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1969 to January 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In September 2017 the Veteran testified before the undersigned at a video-conference Board hearing. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's right leg tarsal tunnel syndrome is at least as likely as not related to his service-connected degenerative disc and joint disease of the lumbosacral spine. 2. The Veteran's left leg tarsal tunnel syndrome is at least as likely as not related to his service-connected degenerative disc and joint disease of the lumbosacral spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right leg tarsal tunnel syndrome have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for entitlement to service connection for left leg tarsal tunnel syndrome have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted for a disability resulting from injury or disease incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a present disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 116667 (Fed. Cir. 2004). Service connection may also 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. 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. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board finds that the evidence of record supports a grant of service connection for right and left leg tarsal tunnel syndrome. First, there is evidence of a current disability. A February 2012 VA examination report diagnosed right and left leg tarsal tunnel syndrome. See 38 C.F.R. §§ 3.303(a). Next, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current right and left leg tarsal tunnel syndrome is related to a service-connected disability. In that regard, the law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (West 2014). The Board acknowledges that there is evidence against the claim. In that regard, a February 2012 VA examiner opined that it was less likely than not that the Veteran's right and left leg tarsal tunnel syndrome were proximately due to or the result of his service-connected degenerative disc and joint disease of the lumbosacral spine. However, the examiner did not address the issue of aggravation. See generally El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The Veteran submitted April 2012 and August 2017 private opinions that are supportive of his claim and place the evidence at least in equipoise as to whether the Veteran's right and left leg tarsal tunnel syndrome is at least as likely as not related to his service-connected degenerative disc and joint disease of the lumbosacral spine. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for right and left leg tarsal tunnel syndrome is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER Entitlement to service connection for right leg tarsal tunnel syndrome is granted. Entitlement to service connection for left leg tarsal tunnel syndrome is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs