Citation Nr: 0714287 Decision Date: 05/14/07 Archive Date: 05/25/07 DOCKET NO. 01-06 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a right foot disability claimed as secondary to service-connected left foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from June 1978 to May 1982. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO&IC) in Philadelphia, Pennsylvania. The veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) in April 2002. In a March 2007 letter, VA advised the veteran that the VLJ who had presided over the April 2002 hearing was no longer employed by the Board. So the Board indicated the veteran could have another hearing before a different VLJ who will ultimately decide this appeal. But in a March 2007 response, the veteran indicated he did not want another hearing. This case was previously before the Board and was remanded to the RO in July 2003 and August 2005. FINDING OF FACT With resolution of doubt in the veteran's favor, the medical evidence indicates that the veteran's currently diagnosed right foot disability is related to his service-connected left foot disability. CONCLUSION OF LAW Right foot disability is proximately due to or the result of service-connected disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION There has been a significant change in the law during the pendency of this appeal. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West Supp. 2001). The legislation has eliminated the well- grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. Given the disposition reached in this case, the Board finds that VA has met its duty to assist the veteran in the development of the claim on appeal under VCAA. Pertinent law and regulations Service connection - in general Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002). Service connection may 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 (2006). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2006); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to establish service connection for a claimed disability on a secondary basis, a similar analysis applies. There must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis In this case, the January 2005 VA examination resulted in a diagnosis of "right foot injury status post with ORIF (open reduction internal fixation), with pinning and plates use to repair the fracture." Service connection is in effect for residuals of left foot injury. Accordingly, Wallin elements (1) and (2) have been satisfied. With respect to Wallin element (3), medical nexus, the veteran's contention is that his service-connected left foot disability limited his mobility and made him unable to avoid injury to the right foot in a "may lay" in 1998. In January 2005, a VA examiner indicated that he was unable to verify the veteran's contention one way or the other. As such, the Board, in August 2005, remanded the claim to the RO for further development, to include obtaining an opinion as to the etiology of the veteran's right foot disability. In September 2006, a VA physician, after reviewing the claims file, agreed with the January 2005 VA examiner that whether the veteran would have been able to avoid injury to the right foot if he did not have mobility impairments caused by the service-connected left foot disability was a matter that he, as a physician, was not able to provide an opinion on one way or another. The VA physician felt that it was "adjudication's" responsibility to decide on the veteran's contention and not the medical examiner. The physician did state, however, that the veteran's contention certainly sounded "sensible." The Board notes that the medical evidence contains numerous references, including in private physician's statements, to the veteran being involved in a work-related injury in November 1998. In addition, the evidence includes an MRI of the right ankle taken in the emergency room at University of Pennsylvania in November 1998. As such, the Board believes that the evidence is sufficient to support the veteran's contention that he injured his right ankle/foot in November 1998. Resolving doubt in the veteran's favor, the Board finds that the 2006 VA examiner's statement that the veteran's contentions regarding the circumstances leading to the November 1998 injury were "sensible" provides sufficient medical nexus between the veteran's right foot disability and a service-connected disability. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In short, Wallin element (3) has been met with respect to the right foot disability. Since all three Wallin elements are satisfied with respect to the right foot disability, service connection is granted for that disability secondary to service-connected disabilities is granted. The appeal is allowed to that extent. ORDER Entitlement to service connection for a right foot disability on a secondary basis is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs