Citation Nr: 21067768 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 19-38 192 DATE: November 5, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for a left foot disability is granted. Service connection for a left foot disability is granted. FINDINGS OF FACT 1. New and material evidence has been received to reopen the matter of service connection for a left foot disability. 2. The Veteran's left foot disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for service connection for a left foot disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1965 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in October 2021. 1. New and material evidence having been received, the appeal to reopen the claim for service connection for a left foot disability. The Veteran previously submitted a claim of entitlement to service connection for a left foot disability, which was denied in an October 1970 rating decision on the basis that the Veteran's condition neither occurred in nor was caused by service. The October 1970 rating decision became final because the Veteran did not submit a timely notice of disagreement (NOD) or new evidence in connection with the claim within the one-year appeal period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In connection with the Veteran's claim to reopen, he submitted lay and medical evidence showing a connection between his condition and service. See Hearing Testimony, October 2021. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Service connection for a left foot disability. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active-duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran contends that his left foot disability is related to his military service. As a preliminary matter, the Board finds that the Veteran has a current diagnosis of congenital club feet. See Medical Treatment Record, April 1971, February 2016, and September 2016. The Veteran's enlistment examination from February 1965 is silent for a foot condition. In fact, the box for normal "feet" is checked. A January 1967 Physical Evaluation Board report noted that the Veteran is unfit for service due to hearing loss. During the October 2021 hearing, the Veteran testified that he hurt his leg on the third day of basic training. He reported his swollen leg to his company commander but was told to continue training. At the end of the day, he reported to sick bay and was given whirlpool treatment for 20 days. The Veteran stated that he marched all day and then received his whirlpool treatment for 40 days but there was no sign in procedure for the treatment. The Veteran further testified that his foot swelled up after the Navy and continued to bother him since service. He received an injection in the early 1970s that helped relieve his symptoms, but he continues to walk with a limp, which has worsened over the years. See also Correspondence, December 1969 and August 1970; Notice of Disagreement, November 2016; Statement in Support of Claim, June 2018 and June 2019. Service connection may be granted for congenital diseases, but not congenital defects. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of soundness applies if a veteran's congenital disease is not noted at entry. See Quirin, 22 Vet. App. at 396-97, Monroe, 4 Vet. App. at 515. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly, [o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See id. The burden is not met by finding "that the record contains insufficient evidence of aggravation." See id. In this case, the Veteran's left foot disability was not noted upon entry into service. Accordingly, the Board finds that the presumption of soundness applies. Therefore, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. See Wagner, 370 F.3d at 1096; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). If this burden is met, then the Veteran is not entitled to service-connected benefits. If the government fails to rebut the presumption of soundness, however, the Veteran's claim is one for direct service connection. To date, the Board notes that VA has not submitted evidence that amounts to clear and unmistakable evidence that the Veteran's left foot disability preexisted and was not aggravated during service, particularly in light of the Veteran's normal enlistment examination coupled with his competent, credible lay statements that his foot pain began in service. Therefore, the presumption of soundness has not been rebutted. The Board finds that service connection is warranted. The Veteran has a current left foot diagnosis that was not noted on the enlistment examination. Further, the Veteran has consistently maintained that his foot disability occurred in service. See also Correspondence, December 1969 and August 1970; Notice of Disagreement, November 2016; Statement in Support of Claim, June 2018 and June 2019; Hearing Testimony, October 2021. Accordingly, based on the lay and medical evidence of record, the Board finds that there is not clear and unmistakable evidence showing that the Veteran's left foot disability both pre-existed and was not aggravated by service. Here, because the Veteran was normal at service entrance with respect to his feet, and as the competent and credible lay and medical evidence shows that the left foot disability had its onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). In light of the foregoing, service connection for left foot disability is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.