Citation Nr: 21001441 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 19-13 307 DATE: January 8, 2021 ORDER Entitlement to service connection for left foot disability is granted. Entitlement to service connection for a left ankle disability is denied. FINDINGS OF FACT 1. The currently diagnosed left foot disability had its onset during active service. 2. The currently diagnosed left ankle disability did not have its onset in service and is not otherwise shown to be related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left foot disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from October 1967 to December 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which declined to reopen a previously denied claim of service connection for a left foot/ankle disability. Although the Veteran originally characterized his reopened claim as bilateral foot problems, in his Notice of Disagreement (NOD) he appealed this issue as left ankle/foot, and such is what is considered on appeal. In August 2019, the Board reopened the previous denied claims and remanded for a VA examination and consideration on the merits. In a September 2020, the Board again remanded the issue for additional development. A medical review and addendum opinion were completed in September 2020, and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. Service connection requires evidence of (1) a current disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When no preexisting medical condition is noted on examination for entrance into service, a veteran is presumed to have been sound in every respect. 38 U.S.C. § 1132; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). When the presumption is applicable, the burden falls on VA to rebut with clear and unmistakable evidence both prongs of the presumption: that an injury or disease manifesting during service preexisted it and was not aggravated by it. Wagner, 370 F.3d at 1096. The Veteran’s October 1967 enlistment examination does not make any reference to any foot or ankle disabilities. Accordingly, the presumption of soundness attaches. To rebut the presumption of soundness, the burden is on VA to show that the Veteran’s foot/ankle disabilities clearly and unmistakably preexisted service and that, if so, it was clearly and unmistakably not aggravated by it. The Veteran’s service treatment records in November 1967 contain several references to foot pain. In these records, the physician noted an impression for mild pes cavus, asymptomatic. It was also indicated that the Veteran had pain in his foot, in addition to several other complaints, with which he experienced “some trouble before entering service.” However, following this statement it was noted that no foot abnormalities were found. In a July 2007 statement, the Veteran reported that he experienced swelling in his feet that he had not experienced prior to entering the Army. In a July 2007 statement from the Veteran’s wife, she recalled that when she had visited the Veteran for Thanksgiving in November 1967 and was alarmed to see that his feet were swollen and that he could barely walk because of the pain. She reported that she had assumed it was due to the marching and basic training activities because she had never seen him like that before. In December 2019, the Veteran was afforded both VA foot and ankle conditions examinations. In the foot examination, the Veteran was diagnosed with acquired pes cavus, beginning in 1960. It was further noted that this diagnosis existed prior to service. During this examination, the Veteran reported this condition caused pain with running and jumping in basic training, and that he did not complete basic training. In the remarks section of this examination, it was stated that the pes cavus was congenital. In the VA ankle conditions examination, the Veteran was diagnosed with lateral collateral ligament sprain, beginning in 1967. A corresponding January 2020 medical opinion was obtained but found to be incomplete and inadequate. Accordingly, a September 2020 review of the examination and record was completed. The examiner confirmed that the diagnoses of residual of lateral collateral ligament strain and acquired pes cavus with residual pain were appropriate. The examiner opined that the pes cavus was most likely a congenital, pre-existing condition that was not noted at induction, stating that the Veteran’s PT during basic training in October 1967 to November 1967 was severe enough, repetitive enough, and prolonged enough to cause the pre-existing pes cavus condition to be aggravated and result in the foot pain noted in the Veteran’s service treatment records in November 1967. The examiner further noted that the type of PT that the Veteran endured, although normal to most people, is well known in accepted medical literature to cause foot pain in patients with pes cavus. Although the examiner found that it was “likely” that the Veteran’s pes cavus pre-existed service, such an opinion does not support a finding that the Veteran’s pes cavus clearly and unmistakably existed prior to service. Furthermore, the evidence does not support a finding that that this pes cavus was not aggravated by service. Rather, the examiner opined that service did, in fact, aggravate this disability. As such, the record does not contain the clear and unmistakable evidence necessary to rebut either prong of the presumption of soundness. Accordingly, the Board will proceed to consider service connection on a direct-incurrence basis. See Wagner, 370 F.3d at 1094-96 (where the presumption of soundness cannot be rebutted, claims for service connection based on aggravation are converted into claims for service connection based on in-service incurrence.) As noted above, the Veteran has a current diagnosis for pes cavus. The Veteran’s service treatment records reflect several in-service complaints of foot pain, as well as an indication that the Veteran had mild, asymptomatic pes cavus. The September 2020 examiner opined that the Veteran’s in-service PT was likely to have aggravated the condition in a person with pes cavus. Additionally, the Veteran and his wife both provided credible statements regarding the swelling he experienced in his feet from service. Accordingly, because pes cavus was diagnosed in service and is present currently, the Board concludes that pes cavus had its onset during service and service connection is warranted. Regarding the ankle disability, the September 2020 examiner opined that this condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The reasoning provided was that there was no record of an ankle injury incurred in service or within one year of discharge from the service. It was noted that there was no indication in the service treatment records that his military service aggravated an ankle condition, and that the claimed ankle condition was most likely not service related but acquired after military service. Although the claim for service connection for an ankle has been included in the left foot claim, service connection for the left ankle is not warranted. Although the Veteran has a current diagnosis for residuals of a lateral collateral ligament strain, aside from the notation on the December 2019 VA ankle examination that the condition began in 1967, apparently reported by the Veteran, there is nothing on the record to suggest that this ankle condition began in service. No additional information regarding the 1967 diagnosis date was provided, and the September 2020 opinion clarified that no complaints were noted on the service treatment records during service or within a year thereafter. STRs are verified to be silent with regard to ankle injury. Furthermore, aside from identifying this condition on the NOD and reference to the current condition, the Veteran has not provided any statements or specific allegations regarding his ankle, or any indication that his disability began in service or is related to service or a service-connected condition. Accordingly, separate service connection for a left ankle disability is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.