Citation Nr: 21074612 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-31 715 DATE: December 15, 2021 ORDER Service connection for left foot disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the record shows the Veteran's preexisting left foot disability underwent a permanent worsening during service. CONCLUSION OF LAW 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, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1964 to February 1965 with additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Agency of Original Jurisdiction (AOJ). In October 2021, the Veteran testified at a Virtual hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. Service Connection The Veteran has maintained that his previous left foot injury from high school had fully healed prior to entry but was re-injured in service, resulting in his current chronic left foot disability. See VA Form 9 received October 2019. At his October 2021 hearing, the Veteran also asserted that the re-injury to his left foot was during a period of active duty for training, his "two-week Reserve training as part of the Marine Corps Reserves" which was not considered. See Hearing Transcript at 3. In March 2016, the Veteran filed his original claim for "left foot aggravation". By rating action of April 2016, service connection was denied based on no evidence that the condition permanently worsened as a result of service. However, the Board concludes that aggravation of a preexisting injury has been shown. For compensation purposes, a preexisting injury or disease will be considered to have been aggravated by service when there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence is required to rebut this presumption of aggravation. See 38 C.F.R. § 3.306 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Applying these principles to the instant case, the Board finds that the Veteran's left foot injury clearly and unmistakably preexisted service. In a September 1965 Report of Medical History for the Reserves, the Veteran reported "broke two bones in left foot" in 1962. The examining physician noted "no significant medical [history]". See Report of Medical History dated September 1965. He was found qualified for retention. See Report of Medical Examination dated September 1965. On subsequent annual examinations, the Veteran had normal clinical findings and qualified for "retention in the USMCR". See Report of Medical Examination dated August 1966, August 1967, and August 1968. Regarding evidence of severity of the Veteran's disability, the evidence near the time of the Veteran's entry into service is limited. However, he was released from active duty in February 1965 with normal clinical findings on separation examination. See Report of Medical Examination dated February 1965. But his Reserves service treatment records shows an orthopedic clinic visit in October 1969 where the examining physician documented "chronic history of recurrent trauma to the left foot and a crush injury approximately 7 years ago." The physician added that the Veteran had "numerous episodes of recurrent pain on the dorsal lateral aspect of the left foot." X-rays taken at the time revealed "evidence of an old fracture of the metatarsal." The physician determined that the Veteran "presently is asymptomatic, however symptoms are consistent with recurrent sprain and early degenerative changes in the foot." See service treatment records dated October 1969. Post-service, a podiatry consultation note of June 2016 shows the Veteran's report of history of injury in High school and later "another traumatic event when he jumped off one of the large guns on his ship when he was in the Marines in 1969." See VA treatment records of May and June 2016. During his October 2021 hearing, the Veteran provided similar testimony regarding his left foot injury prior to service, increase in severity from re-injury during service, and the current severity of his chronic left foot disability. See Hearing Transcript pp. 6-8. The Veteran is competent to report his symptoms, and the occurrence of such symptoms since they are within his realm of personal and firsthand knowledge. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). The Board also finds the Veteran's testimony regarding the severity of his left foot injury both prior to and during service to be credible. Based on probative medical and lay evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service, the Board finds that the Veteran's left foot disability underwent a worsening in severity of his left foot disability during service. Furthermore, the Board concludes that it cannot find clear and unmistakable evidence that this worsening was not permanent in nature but, rather, a natural progression of the disability. Absent evidence to rebut the presumption of aggravation in this case, the Board finds service connection for left foot disability is warranted. See 38 C.F.R. § 3.306. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., Counsel 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.