Citation Nr: 0709792 Decision Date: 04/04/07 Archive Date: 04/16/07 DOCKET NO. 05-11 840 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for residuals of post- operative right club foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from April 1966 to April 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2004 decision by the RO. FINDINGS OF FACT 1. The veteran clearly had a right club foot prior to service, for which he underwent surgery at the age of three. 2. No objective findings relative to the right foot were recorded on any examination undertaken in connection with the veteran's entry into active service. 3. The evidence is in conflict with respect to whether the residuals of post-operative right club foot underwent a chronic or permanent worsening during service, beyond the natural progress of the condition. 4. The veteran currently suffers from osteoarthritis of the right foot and ankle, and shortening and atrophy of the right lower extremity, related to post-operative residuals of right club foot. CONCLUSION OF LAW Post-operative right club foot, with osteoarthritis of the right foot and ankle and shortening and atrophy of the right lower extremity, is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks to establish service connection for residuals of a post-operative right club foot deformity. He maintains that the condition was aggravated by service. Under applicable law, service connection may be established on a "direct" basis for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2006). Generally, in order to prove service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Pond v. West, 12 Vet. App. 341, 346 (1999). Every veteran who served in the active military, naval, or air service after December 31, 1946 is taken 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 the examination, acceptance, and 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.A. §§ 1111, 1137 (West 2002). Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304(b) (2006), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Id. § 3.304(b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service-the second step necessary to rebut the presumption of soundness-a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). If the presumption of sound condition is not rebutted, "the veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. That is to say, no deduction will be made for the degree of disability existing at the time of the veteran's entry into service. Id.; 38 C.F.R. § 3.322 (2006). In the present case, the Board finds, as an initial matter, that the condition here at issue was not noted at the time of the veteran's examination, acceptance, and enrollment into service. As outlined above, applicable law contemplates that something more than a pre-service history be recorded in a report of an induction or enlistment examination in order for a condition to be deemed "noted," as that term is used in 38 U.S.C.A. § 1111. Here, although the record shows that the veteran reported a history of post-operative club foot when he was examined for induction in September 1965, and that corroborative information to that effect was obtained from Presbyterian Hospital in New York, New York, in October 1965, the condition was never "noted" in the report of any examination undertaken in connection with the veteran's entry into service. Indeed, the report of his September 1965 pre- induction examination shows that his feet were found to be normal, and a subsequent notation on that report, dated in April 1966, indicates that no additional defects were then discovered. Because the veteran's right clubfoot condition was not "noted" at the time of his examination, acceptance, and enrollment into service, he is entitled to the presumption of soundness. In this regard, the Board finds, first, that there is clear and unmistakable evidence that the veteran's condition existed prior to service. The October 1965 report from Presbyterian Hospital, referenced above, leaves no room for doubt. Nor does the veteran dispute that his condition did, in fact, exist prior to his induction. However, the Board can conclude that the presumption of soundness has been rebutted only if there is also clear and unmistakable evidence that the condition was not aggravated by service. See discussion, supra. On this question, the evidence is less than overwhelming. To be sure, some of the evidence suggests that the veteran's condition may not have undergone a chronic or permanent increase in severity during service beyond the natural progress of the condition. The report of the veteran's February 1968 service separation examination, for example, shows that his feet were found to be normal at that time. In addition, post-service medical reports from two private care providers-John W. Lane, D.P.M., and Duane B. Gainsburg, M.D.-suggest that the veteran functioned fairly well after service, with waxing and waning symptoms, until his symptoms worsened sometime around 1999. Moreover, a VA examiner opined in August 2004, after examining the veteran and reviewing his claims file, that it was "not likely that the service aggravated his clubfoot deformity beyond the normal progression of the disease itself." However, the record also contains evidence to suggest that the veteran's condition did, in fact, undergo a chronic or permanent worsening during service beyond the normal progression. The record shows, for example, that in August 1966-after the veteran reported for treatment on approximately five separate occasions-he was given a permanent physical profile of L3 for the deformity of his right foot; amended from a profile of L1 at the time of his induction. The veteran has offered sworn testimony to the effect that increased symptoms during service continued after service, and his sister has submitted a statement wherein she offers the observation that the veteran, upon returning from service, walked with a "noticeable limp, more so than he had before entering the service." In addition, Dr. Lane has opined that, while it would be very difficult to prove, it is "very possible" that the veteran's inability to rest his foot during service could have expedited arthritic changes, deformity, and pain. In light of the conflicting evidence on the matter, the Board cannot conclude that the evidence "clearly and unmistakably" (i.e., undebatably) refutes a finding of aggravation. Thus, the presumption of soundness is not rebutted. Accordingly, and because the available VA and private medical evidence shows that the veteran suffers current disability related to right club foot-identified as osteoarthritis of the right foot and ankle, and shortening and atrophy of the right lower extremity-the Board will grant the claim for service connection. The appeal is allowed. Because the Board is granting this claim, there is no need to engage in any analysis with respect to whether the requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), have been satisfied with respect to the question of service connection. That matter is moot. ORDER Service connection is granted for post-operative right club foot with osteoarthritis of the right foot and ankle and shortening and atrophy of the right lower extremity. ____________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs