Citation Nr: 0731998 Decision Date: 10/11/07 Archive Date: 10/23/07 DOCKET NO. 04-44 516 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of service connection for a bilateral foot disability to include residuals of amputation surgery involving the 4th metatarsals. 2. Entitlement to service connection for a bilateral knee disability, S/P total right knee replacement, as secondary to a bilateral foot disability. 3. Entitlement to service connection for a low back disability, as secondary to a bilateral foot disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from July 1954 to March 1956. These matters comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 RO decision, which confirmed and continued a previous denial of service connection for short 4th metatarsals of the feet; denied a claim of service connection for a bilateral knee disability, status post total right knee replacement; and denied a claim for service connection for a low back disability. The Board notes that the RO reopened the veteran's claim of service connection for a bilateral foot disability in the November 2004 Statement of the Case. Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The Board concludes that new and material evidence has indeed been associated with the claims folder. The veteran's claim of service connection for a bilateral foot disability (characterized as amputation of the 4th toe, both feet) was denied by a September 1983 Board decision on the basis that the veteran's preexisting bilateral toe disability was not aggravated in service. New and material evidence specifically addressing this issue has been submitted in the form of letters from two separate private physicians. See West Side Family Medicine letter, June 2003; Orthopaedic Associates letter, January 2004. Therefore, the claim is reopened. The Board will proceed to review the decision on the merits. The claims of service connection for a bilateral knee disability, S/P total right knee replacement, as secondary to a bilateral foot disability, and service connection for a low back disability, as secondary to a bilateral foot disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. It is not shown by clear and unmistakable evidence that a bilateral foot disability both existed prior to service and was not aggravated by service. 2. There is competent medical evidence of record demonstrating that a bilateral foot disability to include residuals of amputation of the fourth metatarsals are related to the veteran's military service. CONCLUSION OF LAW 1. The presumption of sound condition is not rebutted in this case, and therefore a bilateral foot disability, as a matter of law, cannot be said to have existed prior to service. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-03 (July 16, 2003). 2. A bilateral foot disability to include residuals of amputation surgery involving the 4th metatarsals were incurred in active military service. 38 U.S.C.A. §§ 1111, 1131, 1137, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The benefit sought on appeal has been granted, as discussed above. As such, the Board finds that any error related to the VCAA on that claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). VA General Counsel has held that service connection may not be granted for a congenital or developmental defect; however, disability resulting from a superimposed injury may be service-connected. See VAOPGCPREC 82-90; see also 38 C.F.R. §§ 3.306, 4.127. Every veteran shall be 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. This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. The term "noted" denotes only such conditions as are recorded in examination reports. History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). The law further provides that the burden to rebut the presumption and show no aggravation of a pre-existing disease or disorder during service lies with the government. See, e.g., Cotant v. Principi, 17 Vet. App. 117, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, after having determined the presence of a preexisting condition, 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. 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. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The veteran contends that he has a bilateral foot disability as a result of his active duty service. He asserts that he fell a distance of 20 to 30 feet during service, injuring his feet. See Westside Family Medicine letter, June 2003. He claims that he sought medical attention for this injury and underwent a surgery, which removed a portion of his 4th metatarsal toe on both of his feet, resulting in a current bilateral foot disability. See Informal Hearing Presentation, September 2007. The veteran's service medical records, however, give no indication of a feet or toe disability or deformity upon entrance into service. See entrance examination, July 1954. As such, he is presumed to have entered service in sound condition. The veteran's service medical records show that the veteran experienced increasing discomfort of the feet which was made worse with walking and standing. Treatment included surgical excision of the 4th toe and metatarsal head, bilaterally, in April 1955 because of a hammertoe deformity. See service medical records, April 1955. These records reflect that this surgery was conducted due to a congenital disability. Id. Treatment records dated in June 1955 show continued foot complaints such as soreness and pain. In a June 2003 letter, a private physician noted the veteran's inservice surgery and opined that he found it extremely difficult to believe that the veteran's disability preexisted service given that he was able to play high school football, among other things. See Westside Family Medicine letter, June 2003. He also stated that the veteran's surgery placed stress on his 1st and 5th metatarsal heads and increased his feet problems. Id. Finally, the physician noted the operation that he underwent was either experimental or more than likely completely inappropriate for the injury he had. Id. The inappropriateness of this procedure was also acknowledged in a January 2004 letter from a separate private physician. See Orthopaedic Associates letter, January 2004. Here, the physician noted that, not only were the veteran's toes amputated, but portions of his feet were removed as well (the 4th metatarsal). He opined that this procedure is no longer considered a reasonable operation, due to the disability that it creates. Applying the pertinent legal criteria to the facts summarized above, because a foot disability was not noted on the examination at the time of enlistment, the presumption of sound condition attaches in this case. The first question before the Board, accordingly, is whether the presumption that the veteran was in sound condition on entrance is rebutted. In order to rebut the presumption that a foot disability did not exist prior to service, there must be clear and unmistakable evidence both that foot disability existed prior to service and that the foot disability was not aggravated by service. See VAOPGCPREC 3-03; Cotant, 17 Vet. App. at 116 (2003). As to the first "prong" of this test, from review of the evidence of record above, there is evidence, although perhaps not "clear and unmistakable" evidence, that the veteran had a foot disability which existed prior to service. In this regard, it is noted that the veteran's service medical records noted that surgery was conducted in order to treat a congenital foot disability. (Other records, however, such as a private medical report dated in June 2003 reflects the opinion that the veteran did not have a preexisting foot disability as he was able to play high school football.) With respect to the second "prong," it is obvious that given the numerous inservice findings of foot symptomatology to include surgical treatment, it cannot reasonably be said that, when viewed in its totality, there is clear and unmistakable evidence that the veteran's foot disability was not aggravated by service. As such, the presumption of soundness is not rebutted. Thus, the Board must now address the question of whether the veteran's inservice foot disabilities were incurred in service such that service connection would be warranted. Because the presumption of sound condition at entrance to service cannot be rebutted, it must be assumed as a matter of law that the veteran did not have a foot disability at entry to service. Since the Board must assume, as a matter of law in this case, that the veteran did not have a foot disability at entry to service, the question confronting the Board is on what basis, or theory of entitlement, may the claim be considered; that is, must the Board now consider the claim only based on whether the veteran's foot disability was incurred in service or may the Board still consider the claim based on aggravation of a preexisting disorder? In other words, because the Board must assume that the veteran was sound at entry, must the Board conclude that a foot disability did not exist prior to service or may the Board find that such a disorder was present, but not symptomatic, at entry to service? Because under VAOPGCPREC 3-03 the presumption of soundness has not been rebutted in this case, the Board concludes that service connection may not be granted on the basis of aggravation during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; see VAOPGCPREC 3-03 at para. 4 (Sections 1111 and 1153 establish independent factual presumptions, each of which specifies the predicate facts necessary to invoke the presumption and the facts that must be shown to rebut the presumption). Thus, service connection should be considered on the basis of whether or not a foot disability was incurred, rather than aggravated, in service. The veteran received substantial treatment for his feet during service to include amputation surgery involving the 4th metatarsals which, incidentally, did not ameliorate his condition but exacerbated such. Numerous physicians have spoken to this issue, essentially indicating that the inservice surgery was not helpful and, in fact, caused additional foot problems. Therefore, taking into consideration the benefit of the doubt doctrine, in light of the private medical opinions indicating the veteran's disability is due to his active duty service, the Board concludes that the veteran is entitled to a grant of service connection for a bilateral foot disability to include residuals of amputation surgery of the 4th metatarsals. ORDER Entitlement to service connection for a bilateral foot disability, to include residuals of amputation surgery of the 4th metatarsals, is granted. REMAND The veteran alleges that he has a bilateral knee disability and a back disability as the result of an inservice amputation of the 4th metatarsals on his bilateral feet. See VA Form 9 Appeal, December 2005. After a thorough review of the veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of these claims. Specifically, these issues must be remanded in order to schedule the veteran for a VA examination. The veteran has submitted private treatment records showing he had a total right knee replacement in November 2003. See Healthsouth Tri-State Rehabilitation Hospital treatment records, November 2003. It has also been indicated by a private physician that the veteran has arthritis of the knees. See Deaconess Hospital treatment records, February 2003. In a June 2003 letter, a private physician opined that the problems of the metatarsals of his bilateral feet have significantly contributed to problems with his knees and back. See West Side Family Medicine letter, June 2003. This sentiment was echoed in a January 2004 letter from a private physician who opined that difficulty with ambulation caused by his bilateral foot disability has resulted in problems with his lower back and knees. See Orthopaedic Associates letter, January 2004. In light of the private treatment records, the Board finds that a medical opinion is needed regarding the precise diagnoses and etiology of the veteran's bilateral knee and back disabilities. Thus, the Board finds that the medical evidence of record is inadequate for the purpose of adjudicating the veteran's claims for service connection and that a VA examination must be conducted. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). In addition, the veteran was not given proper notice of the requirements for establishing secondary service connection. The veteran was also not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities in this case. Therefore, upon remand, the veteran should be given proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) informing him of the requirements for establishing secondary service connection (38 C.F.R. § 3.310), and that a disability rating and an effective date for the award of benefits will be assigned if the claims are granted, including an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with appropriate notice of the VA's duties to notify and to assist, particularly in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, he should be properly notified of how to substantiate a secondary service connection claim under 38 C.F.R. § 3.310. 2. Thereafter, schedule the veteran for an appropriate VA examination. The claims file should be provided to the physician for review, and the examiner should note that it has been reviewed. After reviewing the file, the physician should render an opinion as to whether it is at least as likely as not that the veteran has a back disability or a bilateral knee disability as a result of a disease or injury in service OR whether the veteran has a back disability or bilateral knee disability that has been caused or aggravated by a service-connected disability, particularly the veteran's service- connected bilateral foot disability. It would be helpful if the physician would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. Then , the RO/AMC should readjudicate the claims. In the event that the claims are not resolved to the satisfaction of the veteran, he and his representative should be provided a supplemental statement of the case. If the benefits sought remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case, which includes a discussion of the issue of secondary service connection, with citation to 38 C.F.R. § 3.310, as amended in September 2006 (which relates to secondary service connection based on aggravation). After the veteran has been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No further action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2007). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Important Notice: Attached to this decision is a VA Form that provides information concerning your rights to appeal our decision. Due to recent changes in the law, some of the information contained in the attached notice of appellate rights form is no longer accurate concerning the ability to pay attorneys and agents to represent you. Some additional information follows that summarizes the current law. To the extent that the information contained in the attached VA Form conflicts with the summary below, please disregard the information on the VA Form and instead rely upon the following information: Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, 120 Stat. 3403 (2006). If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. VA is in the process of amending its regulations governing representation of claimants for veterans' benefits in order to implement the provisions of the new law. More information concerning the regulation changes and related matters can be obtained at http://www1.va.gov/OGC (click on "Accreditation and Recognition of Service Organizations"). Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. Filing of Fee Agreements: In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to the Secretary at the following address: Office of the Chief Counsel for Policy (01C3) Board of Veterans' Appeals 810 Vermont Avenue, NW, Washington, DC 20420 Facsimile: (202) 565-5643 (When final regulations are published to implement the requirements of the new law, fee agreements must be filed with the VA Office of the General Counsel and not the Board.) Department of Veterans Affairs