Citation Nr: 21012217 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-46 420 DATE: March 3, 2021 ORDER Entitlement to service connection for post-traumatic exostosis of the right foot is granted. FINDING OF FACT The Veteran's pre-existing right foot disability was aggravated during active service. CONCLUSION OF LAW The criteria for service connection for exostosis of the right foot have been met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1964 to July 1966. The Board previously remanded this matter for additional development in December 2018 and August 2020. Service connection for post-traumatic exostosis of the right foot Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for a claimed disorder on a direct basis, there must be competent 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 disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A 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, 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; 38 C.F.R. § 3.304. A preexisting injury or disease will be considered to have been aggravated by active service where 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; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. §§ 3.304, 3.306. The burden is not on the claimant to show that the claimed 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, 232-235 (2012). 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). The Veteran contends that his right foot disability, which pre-existed service, increased in severity during service. In a March 2015 statement, the Veteran indicated that he was told upon induction that his right foot disability would not cause any problems. He indicated, however, that he still walks with a limp due to his right foot disability. An October 1964 induction examination noted a history of a right foot injury. The examination noted that the Veteran was in an accident in 1961. Sequelae of the accident included right foot pain in the ball of the sole when walking. The Veteran is not presumed sound as a right foot condition was noted at enlistment. The induction examination referred to a letter from a private physician noting a history of treatment for a right foot injury in September 1961 when the Veteran’s motorcycle collided with an automobile. Service treatment records show complaints regarding right foot pain. A June 1966 treatment note shows that the Veteran reported a painful lump on his right foot. Examination of the foot revealed a bony mass under the fifth metatarsal. X-rays of the right foot and right knee were recommended. The disposition included a recommendation of a follow up appointment for a permanent physical profile. A subsequent June 1966 entry noted that the Veteran did not want surgery for his foot. It does not appear that a permanent physical profile was completed. The Veteran separated from service in July 1966. The September 1966 separation examination noted a history of foot trouble and prior foot surgery. Post-service treatment records reflect a diagnosis of a bony protrusion of the plantar surface of the right foot. See September 2013 VA treatment records. The Veteran was afforded a VA examination in September 2019. The VA examiner opined that the Veteran had documentation of right foot pain since a high school accident, but he did not have treatment or a diagnosis of the right foot. The examiner opined that the Veteran did not have a diagnosis of a right foot disability prior to service. The examiner found that a foot condition was not aggravated beyond its natural progression in service. However, in finding that the Veteran did not have a right foot disability, the examiner did not appear to consider the functional impairment caused by his right foot pain, including functional loss in the form of less movement than normal, pain on weight-bearing, disturbance of locomotion, interference with standing, and being unable to stand for long periods of time or walk long distances. Therefore, the Board assigns low probative weight to this opinion. The Veteran was afforded a VA examination in December 2020. The examination noted that a review of medical records showed a consistent report of pre-existing right foot injury from a motorcycle accident in 1961 with no sequelae. Service treatment records showed the sudden onset of a lump in the right foot, which was painful. The Veteran was advised to have surgery but declined. Upon separation in September 1966, he still reported foot trouble. Medical records from 1967 to 2012 were silent for foot complaints. An orthopedic record dated in November 2019 noted right foot discomfort associated with post-traumatic exostosis of the 5th metatarsal of the right foot. The examiner opined that the medical records were consistent with a pre-existing injury of the right foot prior to enlistment. The examiner opined that the finding of exostosis during active duty service was due to the natural progression of the condition. The examiner indicated that the cartilage between the bones deteriorated over time, and the body produced the bony growth to compensate for the fracture, leading to exostosis. The examiner opined that there was no new trauma to suggest aggravation. The examiner opined that the pain noted on the separation examination was expected with the pre-existing right foot condition. Therefore, the examiner concluded that no aggravation was found. The Board finds that the medical opinion does satisfy the “clear and unmistakable” standard to rebut the presumption of aggravation for several reasons. The examiner did not address how long it usually takes for a foot injury, such as that sustained by the Veteran in 1961, to progress to exostosis. While an absence of in-service trauma was noted, the examiner did not address whether the physical demands of service contributed to an increased rate of deterioration of the cartilage in the right foot. Further, the recommendation of a follow up for a permanent profile was not addressed in the opinion. Based on the foregoing, there is a reasonable doubt whether the Veteran's preexisting right foot disability increased in severity in service beyond the natural progression of the disability. The recommendation for a permanent physical profile for his right foot disability supports a finding of aggravation. Resolving reasonable doubt in favor of the Veteran, the presumption of aggravation applies in this case. In the absence of clear and unmistakable evidence to rebut the presumption of aggravation, the Board concludes that service connection is warranted for exostosis of the right foot. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.