BVA9507531 DOCKET NO. 93-12 383 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from September 1973 to June 1975, from October 1979 to September 1983, and a period of active duty for training from July to November 1990. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a June 1992 rating decision of the Jackson, Mississippi Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to service connection for a bilateral foot condition. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to service connection for a bilateral foot condition. He argues that bilateral foot disabilities diagnosed as moderate hallux valgus and hammer digit syndrome of the second digit were noted upon entry into his last period of active duty for training, and that such disabilities were aggravated therein. He emphasizes a line of duty determination made by the National Guard Bureau. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports the allowance of entitlement to service connection for a bilateral foot disability. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. Bilateral moderate hallux abductor valgus and hammertoe syndrome of the second digit existed prior to entry into active duty for training. 3. Bunions on the second metatarsal joint bilaterally and the plantar surface of the right foot were diagnosed during service, and bilateral bunionectomies with second digital arthroplasties were performed within months after separation from active duty. 4. The service department determination dated in January 1991 that found that the appellant's bilateral foot condition existed prior to service and was aggravated in the line of duty but not due to his own willful misconduct was not patently inconsistent with the evidence of record nor with governing regulatory authority. CONCLUSION OF LAW A bilateral foot disability was aggravated during the appellant's active duty for training. 38 U.S.C.A. §§ 101, 1110, 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.306 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and that all evidence has been properly developed, in light of our favorable decision on this issue. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1994); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Service connection may be granted for a chronic disability resulting from a disease or injury incurred in or aggravated by active duty for training. 38 U.S.C.A. §§ 101, 1110, 1131 (West 1991); 38 C.F.R. §§ 3.1, 3.6 (1994). Under current regulations, a service department finding that injury, disease, or death occurred in the line of duty will be binding on the VA unless it is patently inconsistent with the requirements of the laws administered by VA. 38 C.F.R. § 3.1 (m) (1994). See also Duro v. Derwinski, 2 Vet.App. 530 (1992). Furthermore, "in the line of duty" includes injury or disease aggravated by active service. Id. A pre-existing disease or injury will be considered to have been aggravated by military 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.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1994). See Green v. Derwinski, 1 Vet. App. 320, 322-23 (1991). Moreover, in the case of wartime service, clear and unmistakable evidence is required to rebut the presumption of aggravation when the pre-service disability underwent an increase in severity during service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (1994). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991). See Browder v. Brown, 5 Vet.App. 268, 271-72 (1993) (citing Hensley v. Brown, 5 Vet.App. 155 (1993)). Service medical and personnel records from the appellant two previous periods of active duty dated from September 1973 to September 1975 and from October 1979 to September 1983 do not contain any complaints, findings or diagnoses of a bilateral foot disability or related symptomatology. However, upon examination prior to enlistment in the Army National Guard in May 1990, bilateral moderate hallux valgus and "overlapping toes - second toes over big toes" were noted. Subsequently, service medical records dated in September 1990 indicated complaints of bilateral foot pain due to bunions. Upon examination of the feet, the examiner noted bilateral hammertoes of the second metatarsal joint with bunions as well as a bunion on the right plantar surface, and recommended a podiatry consultation. While the record contains a subsequent request for such podiatry consult, it was apparently never scheduled. Shortly thereafter, calluses were shaved from the appellant's right foot in October 1990. An examination upon separation from active duty for training in November 1990, if conducted, is not associated with the claims folder. However, the current record does contain a military examination performed in December 1990, at which time such physician recommended surgical correction of hallux abductor valgus and a hammer digit of the second toe of the right foot. Subsequent military treatment records indicated a history of a December 1990 correctional bunionectomy with a second digital arthroplasty of the right foot. Due to recurrence, a revisional bunionectomy of the right foot was performed in March 1991. In addition, the appellant underwent an bunionectomy with a second digit arthroplasty of the left foot in May 1991. In conjunction with the appellant's March 1993 notice of disagreement, he submitted photocopies of DD form 2173, Statement of Medical Examination and Duty Status, dated in October 1990, DD form 261, Report of Investigation, dated in January 1991, and associated correspondence. Such service department records were not formerly associated with the claims folder or the service medical records; however, the Board concludes that such photocopies are facially credible and authentic. Such records indicate that in October 1990, the appellant was evaluated for a bilateral foot condition. DD form 2173, which was completed by a physician, stated that the appellant suffered from progressive development of severe calluses over the second toes bilaterally due to repetitive trauma which was incurred in the line of duty and not the not the result of willful misconduct. An accompanying November 1990 statement by the appellant indicated that he suffered from pain in his feet due to a disability incurred during service. The matter was then referred to the Army National Guard Personnel Center for consideration. DD form 261 dated in January 1991 expressed agreement that progressive development of severe calluses on the appellant's toes resulted from rigorous physical training during a period for active duty for training, and held such disability existed prior to active service, but was aggravated therein. As stated above, a service department finding that injury, disease, or death occurred in the line of duty will be binding on the VA unless it is patently inconsistent with the requirements of the laws administered by VA. 38 C.F.R. § 3.1 (m) (1994). Upon review of the service medical and postservice military reports of record, the Board concludes that such finding that the appellant's bilateral foot condition increased in severity during active duty for training is not patently inconsistent with current VA laws and regulations governing service connection based upon aggravation of a pre-existing disease. 38 U.S.C.A. §§ 101, 1110, 1131, 1153 (West 1991); 38 C.F.R. §§ 3.1, 3.6, 3.306 (1994). Such records indicate inservice treatment, as well as three related surgeries within one year of separation from such active duty for training. Moreover, there is unrefuted competent evidence of record that such bilateral foot disability increased in severity during active duty for training. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992). As such, service connection based upon aggravation of a bilateral foot disability is granted. ORDER Entitlement to service connection by aggravation for a bilateral foot disability is granted. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.