BVA9507489 DOCKET NO. 93-10 262 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for residuals of a fracture of the left great toe secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The appellant served on active duty from April 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (the Board) from an October 1992 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for residuals of a fracture of the left great toe, secondary to his service-connected right knee disability. CONTENTIONS OF APPELLANT ON APPEAL The appellant maintains that the RO erred by not granting entitlement to service connection for residuals of a fracture of the left great toe, secondary to his service-connected right knee condition. Specifically, the appellant contends that in the summer of 1982 while walking, his right knee gave out on him causing him to cling to a barrel to hold himself up. The barrel fell on his left foot causing a fracture of his left toe. He asserts that this accident resulted from the service-connected right knee injury. 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 veteran'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 evidence is in relative equipoise; therfore, the appellant's claim of entitlement to service connection for entitlement to service connection for residuals of a fracture of the left great toe, secondary to a service-connected right knee disability, is granted. FINDING OF FACT It is as likely as not that the appellant's left great toe disability is causally related to the service-connected residuals of a fracture of the right knee, status post patellectomy with degenerative changes. CONCLUSION OF LAW Resolving the benefit of the doubt in the appellant's favor, his left great toe disability is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.310 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Initially the Board has found that the appellant's claim for entitlement to service connection for residuals of a fracture of the left great toe secondary to a service-connected right knee condition is well-grounded in that his claim is plausible in accordance with 38 U.S.C.A. § 5107 (West 1991). The appellant's February 1993 hearing testimony, describing the 1982 incident, supports this finding. Additionally, the Board is satisfied that all available relevant evidence is of record and that the statutory duty to assist the appellant in the development of evidence pertinent to his claim has been met in accordance with 38 U.S.C.A. § 5107. Service connection may be granted for chronic disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A.§ 1110. Service connection may also be granted for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). In the veteran's case, he does not claim nor does the evidence show that he had a disability of the left great toe in service. Rather, he claims that his service-connected right knee disability caused his left great toe disorder. He has stated that in 1982 his right knee gave out on him, causing him to grab a barrel for balance, but it fell on his left great toe and fractured same. The appellant's service medical records indicate that he fractured his right patella in September 1970. Service connection was established for the residuals thereof, and a schedular evaluation of 10 percent was assigned effective from May 1971. The appellant's schedular evaluation was increased to 20 percent by a December 1983 rating determination; this evaluation currently remains in effect. The appellant's claim for entitlement to service connection or residuals of a fracture of the left great toe secondary to a service-connected right knee condition is based on an injury to his left great toe which, he reports, occurred in 1982. He maintains that while he was walking in a park his right knee gave out on him, causing him to reach for a barrel to regain his balance. The barrel fell on the appellant's left foot, and as shown by clinical records from June 1982, his left great toe was fractured. Immediately following his toe injury, the appellant drove himself to a VA medical facility. Initially, it was indicated that the appellant had possibly fractured the first metatarsal of the left foot. Examination showed an intra-articular fracture of the first metatarsal head of the left foot. Crutch walking and no weight bearing was advised. The appellant was seen at a VA orthopedic clinic in July 1982, at which time records reflect that a fracture of the left great toe was healed. In early October 1982, the appellant was seen for complaints of knee pain. The appellant indicated that while playing tennis the day before, the medial aspect of his right knee hurt. The clinical entry reflected that the appellant indicated that his knee had given out previously on several occasions. He was seen in the middle of October for pain and problems with range of motion. The knee had a full range of motion but pain with knee extensions. No swelling or effusion was noted, but crepitus was shown. During a VA examination conducted in June 1973 the appellant reported that he could not put a lot of pressure on his right knee. However, as a physical finding the knee was described as stable. After 1973 and prior to 1982, clinical records documenting right knee instability are not shown by the record. However, records after 1982 document instability of the knee, and arthroscopy of the right knee was performed in June 1983. A VA orthopedic evaluation in August 1991 revealed a history of bilateral knee pain, and giving way, more severe on the right side than the left, for the past seven years. It was noted that bilateral knee braces helped quite a bit. The impression was chronic valgus laxity of the right knee and degenerative joint disease. In a hearing held at the RO in September 1991, concerning the unrelated issue of entitlement to an increased evaluation for his right knee condition, the appellant testified that his left "big toe" was injured because his right knee gave out, causing him to reach for a barrel which then fell on his toe and fractured it. A VA medical examination was conducted in November 1991, at which time the appellant complained of right leg instability, while wearing bilateral knee braces. Upon examination, no clear instability was noted. His gait was described as slow, but normal with the appellant's use of a cane and bilateral knee braces; it was also noted as normal without braces. In March 1992, the appellant was hospitalized at a VA facility for bilateral knee pain and left great toe pain. The appellant gave a history of chronic pain in both knees and buckling. He reported a five year history of pain in his great left toe and reduced range of motion. The diagnosis was traumatic degenerative joint disease of the left first metatarsal- phalangeal joint. Later in March 1992, the appellant required surgery to fuse the left first metatarsal-phalangeal. Outpatient records from August 1992 reflect that 5 months after the toe procedure, the appellant was ambulating with pain and wearing special orthopedic shoes. Another hearing was conducted at the RO in February 1993. The appellant testified that his left "big toe" injury occurred while he was walking through a park in 1982, when his right knee gave out. He stated that he reached for a barrel to steady himself, but the barrel fell over, fracturing his toe. He indicated that he drove directly to a VA hospital for treatment. He testified that X-rays were taken and the doctor said he had a hairline fracture of the toe. Pain medication was given for treatment. The doctor also sent the appellant to therapy for his knee at that time, but therapy did not begin until about six months later. The appellant testified that, from 1982 until 1992, he did not receive much treatment for his toe, but did experience some pain in that interim; he was occasionally treated for knee problems during that time. The appellant related that over a period of years the fracture worsened, resulting in a procedure to fuse the toe. Currently, the appellant reported that he occasionally experiences pain from a nerve in the toe. When all the evidence is assembled, the 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Evidence which negatively reflects on the appellant's claim includes the fact that the knee giving out is not documented as the cause of the appellant's toe injury by the June 1982 clinical entry documenting the condition of the toe. Further, there is no medical evidence of record documenting complaints of knee instability from approximately after the VA examination in June 1973 until the time of the toe injury in 1982. However, there is evidence of record which supports the appellant's claim for entitlement to service connection for residuals of a fracture of the left great toe secondary to a service-connected right knee condition. There is a clinical entry dated early October 1982, when the appellant was seen for knee pain relative to playing tennis, in which it was recorded by history that the knee had given out on several previous occasions. Additionally, the appellant testified consistently on two separate occasions, in 1991 and 1993, that his right knee giving out caused the fall which resulted in his left great toe injury. Of particular significance to the undersigned is the fact that the appellant gave this clinical history some time before he ultimately filed a claim for his left great toe disability in January 1992, thereby giving it added probative weight. VA regulations do not provide that service connection can only be shown through medical records, but rather allow for proof through lay evidence. An appellant's sworn statement, then, unless specifically found incredible or rebutted by sufficient evidence to the contrary, may serve to place the evidence in relative equipoise. The VA cannot ignore the appellant's sworn testimony simply because he is an interested party. Smith v. Derwinski, 2 Vet.App. 147, 148 (1992); Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991). The undersigned is of the opinion that the appellant's testimony is credible, and in this case serves to place the evidence in relative equipoise. Inasmuch as the evidence is roughly in balance in this case, the Board concludes that the appellant's left great toe disability is related causally to his service- connected right knee disorder. Service connection for the left great toe disability on a secondary basis is therefore awarded. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.310(a). ORDER Entitlement to service connection for residuals of a fracture of the left great toe secondary to a service-connected right knee condition is granted. J.F. GOUGH 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. 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.