Citation Nr: 21028447 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-05 651 DATE: May 11, 2021 ORDER Entitlement to service connection for left club foot for accrued benefit purposes is denied. Entitlement to service connection for right club foot for accrued benefit purposes is denied. FINDINGS OF FACT 1. The Veteran's left club foot was not aggravated or subject to a superimposed injury during service. 2. The Veteran's right club foot was not aggravated or subject to a superimposed injury during service. CONCLUSIONS OF LAW 1. The criteria for service connection of left club foot have not been met. 38 U.S.C. §§ 1110, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2019). 2. The criteria for service connection of right club foot have not been met. 38 U.S.C. §§ 1110, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty between February and April 1951. The Veteran died in August 2018. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2019 the Veterans surviving spouse was substituted for the purpose of completing the Veteran's appeals pending at the time of his death. These claims were previously remanded by the Board in January 2018 and in July 2020 for further development. The Board is satisfied that there has been substantial compliance with the remand directives. Service Connection Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.304. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of 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 the present disability. Hickson v. West, 12 Vet. App. 247 (1999). A veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). This presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. Smith v. Shinseki, 24 Vet. App. 40 (2010). Congenital or developmental defects were not diseases or injuries within the meaning of applicable legislation providing for payment of VA disability compensation benefits. 38 C.F.R. § 3.303 (a), (c). Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303(c); Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90 (July 18, 1990)); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA distinguishes between congenital or developmental defects, for which service connection is generally precluded, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. A defect differs from a disease in that a defect is "more or less stationary in nature", while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90. However, service connection can also be established if a congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. Where a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. And, in that case, 38 U.S.C. § 1153 applies, and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096, Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 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 (a), (b). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity in service. Paulson v. Brown, 7 Vet. App. 466 (1995); Crowe v. Brown, 7 Vet. App. 238 (1994). In deciding a claim based on aggravation, the question turns on whether there has been any measurable worsening of the condition during service, and whether such worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary or intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt, 1 Vet. App. at 296-97. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Entitlement to service connection for aggravation of congenital left club foot for accrued purposes Entitlement to service connection for aggravation of congenital right club foot for accrued purposes Prior to his death, the Veteran indicated that he was drafted into service in February 1951. He filed a claim in January 2013 for aggravation of his congenital club feet disorder. The Veteran noted that he could not complete advanced training following basic training due to his club feet and that the marching and running required while in the military certainly aggravated his present disability. In addition, the Veteran indicated that he should not have been drafted given that his congenital foot condition disqualified him from service as it prevented the proper wearing of military footwear and impaired walking, marching running or jumping. Service records reflect a May 1949 report of induction reflecting club feet and the need for certification to the Army examining Board. In the Veteran's October 1950 pre-induction Report of Medical History, the Veteran endorsed lameness and noted hospitalization and present physical complaints for club feet which was signed by the examining physician. A review of the Veteran's military personnel records indicates that on the Veteran's Record of Induction dated February 7, 1951, the local medical board noted "crippled feet" as a physical defect, that he had surgery for club feet with good results and suggested that he be passed to the Knoxville official for further evaluation. He was inducted and assigned to Fort Leonard Wood on February 8, 1951 and then transferred on February 15, 1951 to Carson, Colorado. A review of his service treatment records reflects that on February 22, 1951, a referral for bilateral club feet was issued. An undated noted states persistent pain due to club feet. In a February 28, 1951 orthopedic clinic visit marked heel varus and cavus deformity of both feet including the typical appearance of partially corrected club feet was documented. On that date the examining physician determined that the Veteran's congenital diagnoses was disqualifying as it was severe, and that the Veteran would be seen by the Medical Board for separation from service. On March 6, 1951 the Veteran was admitted to the United States Army Hospital on a general surgery until in Camp Carson, Colorado with admission diagnoses of bilateral congenital deformity of the feet and inguinal hernia. On March 15, 1951 the Veteran signed a statement indicating that his physical disability existed prior to service and that it had not been aggravated during his military service. At a Medical Board hearing held in the hospital on April 10, 1951 the Veteran testified that he entered active service on February 7, 1951. He testified that he was born with club feet, had been in a cast until he was 6 years old, and that he had considerable trouble with his feet in civilian life in that if he "walked very much, or stood upon my feet, my feet hurt and the next morning they were stiff." The Veteran worked on his Dad's farm prior to coming to the Army but did nothing for the three months prior to coming to the Army. He further testified that some days he could not work as he repeatedly sprained his ankles; he wore high-topped shoes until he was 18 years old. After coming into the Army his "feet hurt when he walked, marching never bothered him too much, but when they had to do double time, he could not keep up with the other boys because of his ankles kept turning, so he just did not do it." He went on some short hikes with his unit, but he had a light duty slip so he "actually did not do any real hiking." At Fort Leonard Wood he went on some marches and it was pretty hard on him. His feet did not swell but his ankles would turn, hurt and get stiff. He could not do the "bear hops or the duck walk that the first Sergeant tried to get him do." The Medical Board found that the Veteran's physical disability existed prior to service and had not been aggravated by active military service. The Veteran was discharged to duty from the hospital on April 23, 1951 after 48 days of hospitalization pending discharge from service. The Veteran's DD 214 indicated that the Veteran's disability existed prior to service and was not aggravated by military service. In addition, there are several documents signed by the Veteran that explicitly state that his club feet conditions had not been aggravated by service. While 38 C.F.R. § 3.304 (b)(3) provides that signed, in-service statements against the veteran's interest are of no force and effect if no other data does not establish the fact, the Veteran's statements during his Medical Board hearing are evidence of the absence of aggravation. The sole private treatment records of record include his treatment as an infant and small child from the Shriner's Hospital and a barefoot baby photo showing his club foot condition. The Veteran underwent a VA examination for foot disorders in July 2014 and a restatement of the requested opinion was offered in December 2015. The examiner concluded that while the Veteran did experience some pain in service during the three weeks prior to admission to the hospital, there was no documented injury to his feet such that it was less likely than not that the foot condition was aggravated beyond the normal disease progression. In January 2018, the Board remanded for an opinion as to whether the Veteran's current foot and ankle disabilities pre-existed service if so whether any increase in severity during service was due to the natural progression, both to a clear and unmistakable standard or, if no clear and unmistakable evidence that a pre-existing club foot disorder was aggravated by service, whether any current foot or ankle disability besides the Veteran's club foot is at least as likely as not a superimposed disability related to service. In June 2018, the Veteran underwent an ankle conditions examination as the examiner noted that although a foot examination was requested, an ankle examination was the appropriate examination for the Veteran's condition. The examiner noted that the Veteran was born with a pronounced bilateral clubfoot deformity. The examiner noted that service medical records confirm an instance of pain reported when the Veteran was evaluated for club feet. The Veteran's current ankle condition reflected ankylosis of both ankles with muscle atrophy with significant functional loss requiring daily use of braces, a wheelchair or walker. In the absence of any other evidence the examiner found no reason to conclude that the Veteran's bilateral ankle condition was worsened beyond its natural progression by his 2 1/2 months in service. Therefore, the physician examiner concluded that the Veteran's ankylosis of his ankle joints was not caused by or related to his brief time in service as opposed to the lifelong course of his condition. In July 2020 the claim was remanded for further evidentiary development regarding the Veteran's inservice hospitalization. In January 2021, a records review of the claim was conducted by a VA examiner given the Veteran's death in 2018. The examiner found that veteran's bilateral club foot disorder, which clearly and unmistakably preexisted service, was not aggravated (i.e., permanently worsened) by service. The examiner further opined that the evidence is clear and unmistakable that any documented increase in severity in foot/ankle disability during service was due to the natural progression of the bilateral club foot disorder. In conclusion, the examiner noted that the Veteran's foot condition had been treated with foot braces and surgery prior to service and, prior to service his symptoms were severe and presented major limitations in his day-to-day life. The subsequent manifestations during service followed in the projected natural history of the condition and did not represent an aggravation (beyond natural progression). The Board observes, that while the presumption of soundness does apply if a veteran's congenital disease is not noted at entry into service, the presumption of soundness does not apply to congenital defects because a defect of congenital, familial, or hereditary origin by its very nature pre-exists service. Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that presumption of soundness does not apply to congenital defects); Quirin, 22 Vet. App. at 396-97. Accordingly, the presumption of soundness does not apply in this instance to a congenital defect. With respect to a congenital disease, the Board finds that the lay and medical evidence of record demonstrates clear and unmistakable evidence that the Veteran's club foot disabilities pre-existed service and were clearly noted on service induction. The evidence indicates that the Veteran had a current disability of bilateral club feet with ankylosis which met the first requirement for service connection. The second requirement of an inservice incurrence was also met with the Veteran's evaluation for pain in his ankles during service. The remaining question to be resolved is whether the Veteran's current disability was medically connected to service. As the presumption of aggravation is inapplicable in this matter, direct evidence is required that shows either a superimposed injury on the congenital club foot defect, or if considered a congenital disease, a showing that there was a worsening of the condition during the period of active duty and that the worsening was caused by the period of active duty. 38 U.S.C.A. § § 101(24)(B); Smith v. Shinseki, 24 Vet. App. 40 (2010); VAOPGCPREC 82-90 (July 18, 1990). Such showings have not been made. While neither examiner explicitly opined as to whether the Veteran had a congenital disease or a congenital defect, the examiners provided negative nexus opinions which address both issues. If the Veterans congenital bilateral club feet were a disease, the 2021 examiner noted that the evidence is clear and unmistakable that that any documented increase in severity of the Veteran's club foot disorder was due to the natural progression of the disorder. The Board notes that mitigating against the evidence of a documented increase in severity of a congenital disease in service is the examiner's statement, bolstered by the Veteran's statement at the Medical Board hearing, that prior to service the Veteran had severe ankle symptoms which limited his day-to-day life. If the Veteran's bilateral club feet are congenital defects, the Veteran nor the examiners identified any condition that was superimposed upon the congenital defects. The 2018 VA examiner noted that the ankylosis of both of the Veteran's ankles with muscle atrophy 67 years later was not caused by or related to his brief time in service but due to the natural progression of the condition. The Board observes that the evidence does not show that the Veteran experienced a measurable worsening of his condition in service or a superimposed injury in service. The Veteran is competent to testify regarding observable symptoms, such as his foot and ankle pain before and during service. 38 C.F.R. § 3.159(a)(2); see Layno v. Brown, 6 Vet. App. 465 (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); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A temporary flare-up of pain or ankle stiffness in service comparable to what the Veteran described prior to service is insufficient to prove aggravation. See Crowe, 7 Vet. App. at 248. The military personnel records show that there were 20 days, including non-duty time for transfer of his duty station from Missouri to Colorado, from induction to a determination by an orthopedic surgeon that the Veteran's club foot conditions disqualified him from service. The Veteran was able to perform his activities on a limited duty status throughout his time inservice. The purpose of his admission to the hospital was noted to be surgical relating to correction of his left inguinal hernia. The Board finds that there is no independent medical evidence of either an aggravation or a superimposed injury in service as is required for service connection for pre-existing congenital disabilities. See Paulson, 7 Vet. App. at 466. As noted above, the burden falls on the Veteran, not VA, to establish aggravation. Wagner, 370 F.3d at 1096. Accordingly, the third prong of service connection, a medical connection or nexus between the Veteran's current disability and an inservice event have not been met. Accordingly, as the preponderance of the evidence weighs against either aggravation, or a superimposed injury to the Veteran's congenital club feet disabilities, service connection is not warranted. There are no doubts to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, Associate 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.