Citation Nr: 0502789 Decision Date: 02/04/05 Archive Date: 02/15/05 DOCKET NO. 96-28 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a bilateral foot disorder, including pes planus. REPRESENTATION Appellant represented by: Sean Kendall, Esq. ATTORNEY FOR THE BOARD S. Yim, Associate Counsel INTRODUCTION The appellant served on active duty from November 1970 to May 1972. This appeal comes before the Board of Veterans' Appeals (Board) on remand from a July 8, 2004 Order of the U. S. Court of Appeals for Veterans Claims (Court). The Order (1) vacated the Board's May 2003 decision denying service connection for a bilateral foot disorder and remanded the matter for failure to comply with certain Veterans Claims Assistance Act (VCAA) notice provisions; and (2) dismissed the appeal with respect to the claim of entitlement to a permanent and total disability rating for nonservice- connected pension. As to the latter issue, the Court determined that where the Board has not yet issued a "final," appealable decision on the matter for which the Court's review is sought, the Court has no jurisdiction to review it. In May 2004, while the appeal to the Court as to both issues was pending, the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA) granted entitlement to a permanent and total disability rating for nonservice-connected pension, effective on May 1, 1995, the date on which the original claim for such entitlement was filed. As this matter has been resolved in the veteran's favor, it is moot for the purposes of appellate review. As for the foot disorder service connection claim, the RO initially denied the claim, characterized as service connection for bilateral pes planus and filed in March 1995, in an August 1995 rating decision. The Board affirmed the RO's denial in August 1998, and denied reconsideration of its decision in April 1999. The veteran sought the Court's review of the Board's decision. In September 2000, the Court vacated the Board's August 1998 decision and remanded the matter for readjudication due to an inconsistency between the bases for the decisions of the RO and the Board (i.e., the RO denied the claim on its merits, but the Board denied the claim based upon lack of a "well-grounded" claim). In May 2001, the Board remanded the matter for further evidentiary development consistent with VCAA, enacted in November 2000, after the issuance of the Court's order. In March 2003, the Board denied service connection for pes planus on the grounds that it was not incurred in service, and that it pre-existed service and did not become aggravated therein. This decision, as discussed above, was vacated by the Court in its July 2004 order. While the Board regrets further delay in the adjudication of the foot disorder claim, it finds that additional development is warranted, as explained below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify you if further action is required on your part. REMAND The key issues in this claim are whether the veteran's bilateral pes planus was incurred in active service (direct service connection) or, in the alternative, whether it was pre-existing but aggravated during active service. The Board notes that the veteran's contentions in this regard are not consistent. Notably, in his notice of disagreement submitted in September 1995, he reported that he had pre-existing pes planus aggravated during service. In a VA Form 9 received in June 1996, he reported that a foot disorder "started" in service, presumably to indicate that it was incurred in service. It also is not clear, based upon a review of the service medical records, whether pes planus pre-existed service, or whether it was incurred in service. Service entrance reports of medical history and medical examination dated in November 1970 indicate nothing abnormal about the feet. In a report of medical history dated in February 1970, the veteran's report as to pre-existing foot problems is ambiguous, as he checked both "yes" and "no" boxes for "foot trouble" and then apparently blotted out the "yes" box; nonetheless, clinical findings at that time were normal with respect to the musculoskeletal system. In June 1971, the veteran was diagnosed with pes planus and given arch supports, and was seen for pes planus symptoms a few times thereafter. At the time of the separation medical examination in early April 1972, all clinical findings were normal with respect to the musculoskeletal system. In late April 1972, the veteran signed a statement that his medical condition had not changed since the separation medical examination was conducted. Thus, this claim must be evaluated considering both theories - direct service connection and aggravation of a pre-existing foot disorder. In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2004). 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 examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b) (2004). A veteran who served during a period of war, as the veteran here, is presumed to be in sound condition when he entered into military service except for conditions noted on the entrance examination. 38 U.S.C.A. § 1111 (West 2002). This presumption of soundness, however, may be rebutted with evidence that the disorder existed prior to entry into service and that the disorder was not aggravated by such service. A pre-existing injury or disease will be considered to have been aggravated by active 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 a natural progress of the disease. 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 U.S.C.A. 1153 (West 2002); 38 C.F.R. 3.306(b) (2004); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). 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 itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). The laws further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that 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). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c) (West 2002). Also pertinent in this case is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). At the time the Board decided the veteran's case in March 2003, VA still had the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre-existed service. However, if VA met this burden, then it had the burden to rebut the presumption by a preponderance of the evidence (a lower standard) that the pre-existing disorder was not aggravated by service. Now, VA must also show by clear and unmistakable evidence that the pre-existing disorder was not aggravated during service (a higher standard). In light of Wagner and VAOPGCPREC 3-03 (both were issued after the Board's last, March 2003 decision), the claim must be reconsidered based on both direct service connection and aggravation of pre-existing pes planus on the "clear and unmistakable evidence" standard. On a related matter, the Board acknowledges that the veteran, through his counsel, recently submitted a medical opinion report of Dr. C.N.B., a neuro-radiology specialist, which apparently is intended to preemptively address the key evidence needed here - that is, the issue of etiology, or medical causation - before the Board reconsiders the matter on remand. Dr. C.N.B. reportedly examined the veteran and concluded, among other things, that the veteran's pes planus should be service-connected. See doctor's November 2004 report (initial review by RO waived). This report does not adequately or specifically address the key issue of etiology, and more particularly, whether pes planus itself was chronically aggravated beyond the normal course or natural progression of the disorder during active service. Thus, in consideration of the foregoing, the Board finds that a VA orthopedic examination is warranted on remand to squarely address this issue. On another matter, the Board notes that its May 2001 remand order directed the RO to confirm whether the veteran is obtaining Social Security Administration (SSA) disability compensation benefits, and if so, obtain records upon which SSA benefit entitlement was based. In February 2001, appellant's counsel wrote indicating that the veteran is, or has been receiving, SSA benefits. In June 2001, the veteran wrote that he last received SSA benefits four years before. However, it is not clear whether follow-up actions took place to obtain such records. The Board's intention is to ensure as complete a record as possible with respect to potentially relevant evidence, and to ensure compliance with the veteran's due process rights. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the SSA, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight). Indeed, appellant's counsel has argued that failure to obtain such records violates duty-to-assist obligations. See p. 6, January 2004 appellate brief filed with the Court. Finally, the Court's Order included requiring the Board to comply with the notice provisions of 38 U.S.C.A. § 5103(a); specifically, the briefs of the parties on appeal before the Court mentioned that the notice given to the appellant did not specify which evidence he was to submit and which evidence VA would obtain. In consideration of the foregoing, the bilateral foot disorder claim is remanded for the following actions, after which a de novo review should be conducted by the RO: 1. Notice. The veteran should be provided notice pursuant to 38 U.S.C.A. § 5103(a). This notice should specifically tell him which evidence he should submit and which evidence VA will obtain. 2. SSA Records. Obtain the records associated with the veteran's SSA disability compensation benefits application, including supporting exhibits/evidence, and SSA administrative law judge's decision. Associate with the claims folder these records. 3. VA C&P Examination. After completing the above, schedule the veteran for a VA examination by a qualified medical professional, such as an orthopedist, to first diagnose the veteran's claimed foot disorder(s), and then determine, following a review of the claims folder, for each diagnosed foot disorder whether it is at least as likely as not (i.e., by a probability of 50 percent), more likely than not (i.e., by a probability higher than 50 percent), or less likely than not (i.e., by a probability less than 50 percent), that the diagnosed disorder began or was aggravated during the veteran's active military service. More specifically, the examiner should offer an opinion as to whether it is at least as likely as not that such bilateral foot disorder(s) existed prior to service (see discussion of service medical records above) and, if so, was aggravated (chronically worsened beyond a natural progression of the disorder) during active service. If arthritic changes are noted in the feet based upon diagnostic testing (e.g., x-ray), then the examiner also should state the likely onset of such changes. Finally, the examiner should state (if it is determined that there was no pre-existing foot disorder) whether it is as likely as not that the currently diagnosed disorder was incurred in active service. The specific bases and rationale for the examiner's opinion should be provided in a written report. If the examiner is not able opine on any requested issue or question without resorting to conjecture or speculation, he should so state and explain the reasons therefor. Diagnostic testing, if deemed to be warranted by the examiner, should be performed. The examiner must review the veteran's medical history as documented in the claims folder, and in particular, the service medical records and this remand order, before issuing the opinion requested herein. The report should specifically state whether the claims folder was reviewed. Associate with the claims folder the examiner's written report/opinion, along with diagnostic testing records, if any. 4. After completion of the above, review the entire claims folder and readjudicate the claim. See Wagner and discussion above. If any determination remains unfavorable to the veteran, he and his counsel should be provided an updated Supplemental Statement of the Case, specifically citing VCAA statutory provisions and implementing regulations, including 38 C.F.R. § 3.159 (2004), and an opportunity to respond to it. Thereafter, if in order, return the claim to the Board for further review. The purposes of this remand are to comply with due process requirements and for further evidentiary development of the claim. At this juncture, the Board intimates no opinion, either legal or factual, as to the ultimate disposition of this case. No action by the veteran is required until he receives further notice; however, the veteran has the right to submit additional evidence and argument on the matter(s) the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised that a failure to report to a VA medical examination, if scheduled, may result in the denial of his claim unless good cause is shown. 38 C.F.R. § 3.655 (2004). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2004).