Citation Nr: 1817604	
Decision Date: 03/22/18    Archive Date: 04/03/18

DOCKET NO.  14-40 290	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection left foot disability.
 
2. Entitlement to service connection for traumatic arthritis of the left foot, fifth metatarsal, post-operative.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Christopher Gannon, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Air Force from January 1973 to November 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In that decision, the RO reopened the previously denied claim for entitlement to service connection for left foot disability and denied what it characterized as service connection for traumatic arthritis secondary to a gunshot wound to left foot fifth metatarsal, post operative, and continued the denial on the merits of the claim. Regardless of the RO's precise disposition of the matter, however, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

In November 2017, the Veteran testified during a video-conference hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record.


FINDINGS OF FACT

1. In an October 1975 rating decision, the RO denied the Veteran's claims for service connection for left foot disability.

2. Evidence received since the October 1975 RO rating decision relates to an unestablished fact necessary to substantiate the Veteran's claim for entitlement to service connection for left foot disability, and raises a reasonable possibility of substantiating the claim.

3. The evidence does not show that the Veteran's preexisting left foot traumatic arthritis left foot fifth metatarsal, post-operative was clearly and unmistakably not aggravated by active service. In other words, there is some evidence of aggravation of the condition during service.

4. Resolving reasonable doubt in favor of the Veteran, the evidence is at least evenly balanced as to whether the Veteran's traumatic arthritis of the left foot fifth metatarsal, post-operative, is related to active service.


CONCLUSIONS OF LAW

1. The October 1975 rating decision that denied the claim of entitlement to service connection for left foot disability is final. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. §§ 20.1100(a), 20.1104 (2017).

2. New and material has been received to reopen the claim for service connection for left foot disability.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

3. Traumatic arthritis of the left foot fifth metatarsal, post-operative was incurred in active service. 38 U.S.C. §§ 1110, 5107  (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

Initially, the Board notes that the Veteran has been provided all required notice and that the evidence currently of record is sufficient to substantiate his claim for service connection for traumatic arthritis secondary to a gunshot wound to left foot fifth metatarsal, post-operative. Therefore, no further development with respect to the matter decided herein is required under 38 U.S.C. §§ 5103, 5103A (2012) or 38 C.F.R. § 3.159 (2017).

II. Reopening

Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a).

An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b).

New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

In October 1975, the RO denied the Veteran's claim for entitlement to service connection for left foot disability.  The RO found that a surgery to the Veteran's left foot in service was "remedial in nature" and that aggravation in service was not demonstrated. As no timely appeal was initiated, the decision became final.

The relevant evidence at the time of the October 1975 RO decision included the Veteran's service treatment records (STRs) and VA treatment records. 

The evidence received since the October 1975 RO decision includes private treatment records from June and August 2012 from a doctor in podiatric medicine, Dr. Dernbach, a February 2013 VA examination report, and Board testimony from the Veteran as well as a written lay statement from his wife describing a history of his symptoms of foot trouble. Specifically, the opinions from Dr. Dernbach and the Veteran's testimony addressed whether the Veteran's left foot condition worsened as a result of his air service. This evidence is considered "new," as it was not of record at the time of the last final denial; it is also "material" because it relates to a previously unestablished fact, namely whether the Veteran's preexisting left foot condition underwent a worsening as a result of his service.  Accordingly, the claim for service connection for left foot disability is reopened.

III. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

However, when there is evidence that a disorder preexisted service, the Board must consider the principle that every Veteran is presumed 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 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. § 1111 (2012). Significantly, however, "[i]n order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service." Horn v. Shinseki, 25 Vet. App. 231, 236 (2012); see also Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (explaining that the application of the presumption of sound condition does not "relieve the veteran of the burden of showing that the veteran suffered from a disease or injury while in service"). 

As an initial matter, the record establishes that the Veteran has a current diagnosis of traumatic arthritis of the left foot fifth metatarsal, post-operative.  In this case, the Veteran generally contends that his current left foot condition preexisted his active duty service and was permanently aggravated beyond its normal progression during his service. Prior to service, the Veteran testified to suffering an accidental gunshot wound to the left foot some two months before entering active duty. In that regard, in January 1973, soon after entering active air service, the Veteran reported as an emergency walk-in to the orthopedic clinic at Wilford Hall USAF Medical Center after experiencing pain in his foot from running and related activities. He reported suffering a gunshot wound in the left foot two months earlier, impacting his left fifth metatarsal. The Veteran was subjected to a medical board discharge proceeding in January 1973 (less than ten days after coming onto active duty), which prepared a report. The medical board found that, "Two months status post gunshot wound, left fifth toe, phalangeal joint, chronic and symptomatic." They noted that its date of origin was undetermined, but that it was incurred prior to service. 

Nevertheless, the Veteran continued on active duty, as his STRs indicate reports of pain in his left foot multiple times in August 1973. Examiners in August 1973 noted an x-ray showing a "shattered metatarsal head." As a result of his ongoing left foot issues in service, the Veteran was selected for surgical correction of his left foot. Pre-operative notes from August 1973 indicate the Veteran's condition before surgery, stating that he was nineteen years old with an accidental self-inflicted gunshot wound to the left fifth toe who now has chronic pain associated with walking and standing. He was diagnosed with chronic traumatic arthritis of the left fifth MP joint. The Veteran underwent surgery on August 23, 1973. The procedure, an excision of the left fifth metatarsal head, was deemed successful. The surgeon noted "a great deal of arthritic change and distortion of the head of the tarsal." The surgeon exposed it, and the head of the fifth metatarsal was amputated. The Veteran was given a separation examination in October 1974, during which he reported broken bones and foot trouble. When asked if he had any operations, he wrote, "Surgery on left foot - Fall of '73, KAFB Dr. Britton." His examiner wrote, "Fracture of 5th metatarsal (L) foot due to gunshot wound. Was surgically corrected in 1973 with uneventful recovery. Hospitalized X 1 week at USAF Hospital, KAFB."

After service, in conjunction with his June 2012 claim, the Veteran gave a statement, stating that the aforementioned August 1973 in-service surgery aggravated his foot condition, and has since caused numerous symptoms. Private treatment records from the Veteran's private treatment provider, Dr. Dernbach, indicate that in June 2012 the Veteran sought follow-up treatment for pain and discomfort with his left foot, as he had been under her treatment since 2007. The Veteran reported to Dr. Dernbach in June 2012 that "pain and discomfort within the left foot has never been completely resolved since he had his surgery back in the 70s" and that it was getting worse. The Veteran submitted a statement to the VA in July 2012, stating that he had difficulty walking because his left foot pain was too intense. An accompanying statement from the Veteran's wife indicates that throughout the years, she observed her husband's left foot pain, asserting that it has limited his ability to walk and stand. The Board finds these statements to be credible, as they are consistent with each other and have been the same throughout the appeal.

The Veteran was provided with a VA examination in February 2013. After reviewing the Veteran's claims file and examining the Veteran in person, the examiner opined, "This Veteran's traumatic arthritis, s/p accidental self inflicted gunshot wound to the 5th metatarsal, left foot is not caused by or a result of military service, but rather, it is more likely that the current severity of the traumatic arthritis, gunshot wound to the 5th metatarsal, left foot is solely due to the natural progress of the pre-existing traumatic arthritis, gunshot wound to the 5th metatarsal, left foot." As a rationale, he reasoned, "After review of this veteran's STRs, it was noted that the medical note on 22 Aug 1973, specifically , that this Veteran's traumatic arthritis, 'is secondary to old accidental, self-inflicted gunshot wound to the fifth metatarsal, left foot.'"

The Veteran submitted a medical opinion from his private doctor, Dr. Dernbach, in June 2013. Dr. Dernbach stated, regarding the resection surgery done in service in August 1973, "With resection of the fifth metatarsal head, it can take time for these types of aches and pains to develop. The knee, back and foot pain typically occur as a biomechanical compensation for loss of the fifth metatarsal head. These aches and pains are painful and quite limiting, making day to day activities quite painful such as in the case of Mr. [REDACTED] left foot." Dr. Dernbach opined, "If his fifth metatarsal head had not been resected, these aches and pains would likely not be present within his left foot nor would he have the difficulties with gait and standing for a substantial period of time."

With regard to the above statements concerning observable symptoms and treatment in service, the Board finds that such statements are competent. See 38 C.F.R. § 3.159(a)(2) (2016); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). The Board also finds that these statements in this regard to be credible, as they are consistent with each other and have been the same throughout the appeal.

Based on the foregoing, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's current traumatic arthritis of the left foot fifth metatarsal, post-operative, is related to active service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for traumatic arthritis secondary to a gunshot wound to left foot fifth metatarsal, post-operative, is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The Board notes that in a February 2013 VA examination, the examiner opined that the Veteran's left foot condition preexisted service, citing to the January 1973 medical board report and the Veteran's own statements.

As the Veteran has shown that his current left foot disability is related to service, and there is evidence that the condition preexisted service, the Board must address the presumption of soundness. The first question in this regard is whether a left foot condition was "noted" on entry into service. See 38 U.S.C. § 1111; Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012) ("before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service"). The term "noted" in 38 U.S.C. § 1111 refers to "only such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b) (2017).  A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994).  The December 1972 enlistment examination report indicates that the feet were normal.  The Board notes that on the Veteran's December 1972 enlistment report of medical history, he indicated that he had been hospitalized for a left foot gunshot injury.  However, this is a notation acknowledging a "history of preservice existence of conditions recorded at the time of examination" and thus "does not constitute a notation of such conditions." Id.  Therefore, the condition was not noted at entry.

When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been in sound condition. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness has therefore attached in this case and can only be rebutted by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Id. Clear and unmistakable evidence means evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)).

Whether evidence of preexistence meets the clear and unmistakable standard is ultimately a legal question to be answered by the Board. 38 C.F.R. § 3.100(a) (2017) (delegating the Secretary's authority "to make findings and decisions...as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) ("Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity"). Here, there is clear and unmistakable evidence of record that a left foot condition preexisted the Veteran's service in the Air Force. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In determining whether a disorder preexisted service, the Board has considered both medical and lay evidence of record. That is, the Veteran's medical history, accepted medical principles, evidence regarding the basic character, origin and development of the condition, and lay and medical evidence concerning the inception, development and manifestations of the condition was considered in accordance with VA regulations. 38 C.F.R. § 3.304(b); see also Quirin, 22 Vet. App. at 396.

The Veteran's service treatment records, to include his January 1973 medical board report and his pre and post-surgery reports, are replete with notations regarding the origin of the Veteran's left foot condition. The Veteran himself testified at his November 2017 Board hearing that he was shot in the foot as a result of a hunting accident the weekend before entering the Air Force on active duty, and his induction was postponed for five weeks because his foot had to be casted. Furthermore, his January 1973 medical board clearly indicated that the condition was incurred "two months" prior to service. Given that the Veteran's statements during and after service are corroborated by contemporaneous Air Force medical records, the Board finds that the evidence clearly and unmistakably indicates that his left foot condition preexisted his entry into service.

But as stated above, rebutting the presumption of soundness is a two-part analysis. While the Veteran's traumatic arthritis of the left foot fifth metatarsal, post-operative has been shown by clear and unmistakable evidence to preexist service, consideration must be given to whether clear and unmistakable evidence exists to show that the condition was not aggravated during service, to fully rebut the presumption of soundness. That is, "VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, in order to fully rebut the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation." Horn, 25 Vet. App. at 236.

For the following reasons, there is no clear and mistakable evidence of a lack of aggravation and in fact there is some probative evidence suggesting in-service aggravation of a preexisting left foot condition during service in the Air Force from January 1973 to November 1974, particularly as a result of the surgery in August 1973 in which part of the Veteran's affected metatarsal was amputated. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).

As to evidence of aggravation, the Veteran's service treatment records are highly probative. A record made by his physician in August 1973 notes the Veteran's condition before surgery, noting that the Veteran had chronic pain associated with walking and standing. He was diagnosed with chronic traumatic arthritis of the left fifth MP joint. The Veteran underwent surgery on August 23, 1973 by an Air Force doctor. Contemporaneous records indicate that the procedure, an excision of the left fifth metatarsal head, was deemed successful. The surgeon noted "a great deal of arthritic change and distortion of the head of the tarsal." The surgeon exposed it, and the head of the fifth metatarsal was "amputated." As a result of the surgery, the Veteran's service treatment records show that following surgery, his physical profile was extended to February 1974 to allow for recovery. In his separation examination in October 1974, the Veteran reported broken bones and foot trouble.

The most probative evidence of aggravation comes in the form of a June 2013 report prepared by the Veteran's private treatment provider. The Veteran submitted a letter from Dr. Kerry Dernbach, DPM, regarding the surgery she performed on his left fifth metatarsal. She stated that she met the patient in June 2007 regarding pain and discomfort in his left foot. She stated that she operated on him in the same month, with positive results. She stated however that as time has gone on, various conditions have developed, namely metatarsalgia of the left foot, which has caused chronic pain. Critically, regarding the resection surgery done in service, she opined, "With resection of the fifth metatarsal head, it can take time for these types of aches and pains to develop... These aches and pains are painful and quite limiting, making day to day activities quite painful such as in the case of Mr. [REDACTED] left foot." She stated that it was her medical opinion that "If his fifth metatarsal head had not been resected, these aches and pains would likely not be present within his left foot nor would he have the difficulties with gait and standing for a substantial period of time."

In sum, in light of this evidence during the Veteran's period of service from January 1973 to November 1974, the Board cannot show by clear and unmistakable evidence that the Veteran's preexisting left foot condition was not aggravated by his service, for purposes of rebutting the presumption of soundness at entry. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). See also Wagner, supra; VAOPGCPREC 3-2003.

In making this determination, the Board has considered the Veteran's medical board report from January 1973, which found that the Veteran's condition "existed prior to entry into service, and has not been aggravated by service beyond the normal progression of the disease." However, no rationale was provided for the so-called "no aggravation" finding. In this regard, the probative value of a medical professional's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 18, 22 (2007). In addition, a medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

In addition, the Board acknowledges the February 2013 VA examiner opinion wherein he stated that the "current severity of the traumatic arthritis, gunshot wound to the fifth metatarsal, left foot is solely due to the natural progress of the pre-existing [condition]." The VA examiner's rationale relied in large part on the medical board report from January 1973, which predated the Veteran's surgery in August 1973, and which the Veteran alleges is a major source of in-service aggravation of the condition. The opinion therefore lacks significant probative value. Bloom, 12 Vet. App. 185, 187 (1999); Bostain v. West, 11 Vet. App. 124, 127- 28 (1998).

In any event, both the VA and military examiners failed to proffer their unfavorable medical opinions for no aggravation, in definitive terms supported by adequate, non-conclusory rationales. Clear and unmistakable evidence is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). In this case, this burden has not been met by the VA, as some probative medical evidence of record exists showing possible in-service aggravation of the preexisting left foot disorder - particularly the evidence that the Veteran's in-service metatarsal head amputation surgery caused serious aggravation. In other words, the evidence of record is at the very least debatable as to whether there was aggravation of a preexisting left foot condition during service. Cotant, 17 Vet. App. at 131. Therefore, the presumption of soundness has not been rebutted by VA in the present case.

Thus, as the evidence reflects that the Veteran's current traumatic arthritis of the left foot fifth metatarsal, post-operative is related to service and the presumption of soundness has not been rebutted, entitlement to service connection for this disability is warranted. See Wagner, 370 F.3d at 1094-96 (stating that in cases where the presumption of soundness cannot be rebutted, claims for service connection based on aggravation are converted into claims for service connection based on service incurrence).





ORDER

Entitlement to service connection for traumatic arthritis of the left foot fifth metatarsal, post-operative, is granted.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs