Citation Nr: 1310329 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 06-35 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for a back disability, to include as secondary to pes planus. REPRESENTATION Appellant represented by: Brian G. Quinn, Attorney ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to February 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied service connection for pes planus and a back disorder. In November 2009, the Board remanded the issues on appeal for additional development. After the development was completed, the case was returned to the Board. In August 2010, the Board denied service connection for pes planus and a back disorder. The Veteran, however, appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court) and in a May 2012 Memorandum Decision, the Court vacated the Board's August 2010 decision and remanded the matters for further proceedings consistent with its decision. Specifically, the Court essentially determined that the Board should have given more weight to the Veteran's lay assertions that his pre-existing pes planus had been aggravated in service, and should not have relied on a March 2010 VA medical opinion, as the opinion contradicted itself, included no rationale, and did not provide probative medical evidence that the Veteran's pes planus was not aggravated during service. The Court also determined that in denying the service connection claim for the back on the basis of no present disability, the Board did not properly consider the potential evidence from the Social Security Administration (SSA) regarding its decision on granting benefits, as the Veteran had claimed that he was receiving SSA benefits based on a back disability. The Court acknowledged that while there were no medical records available from SSA, there was no indication that the copies of the administrative decision from SSA was not available to determine if, at least, the Veteran was in fact receiving SSA disability benefits for his back. The Veteran's representative submitted additional evidence in March 2013 that had not been considered by the Agency of Original Jurisdiction, including copies of the SSA decision awarding benefits based on cervical arthrosis and degenerative changes of the spine, private treatment records demonstrating complaints of low back pain, and a private medical statement relating the Veteran's back problems to his foot disorder. Although the RO had not reviewed this evidence, the Veteran's representative submitted a waiver of RO jurisdiction. Therefore, while the case will be remanded for other reasons, a remand, pursuant to 38 C.F.R. § 20.1304 is not necessary. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for pes planus and a back disorder. He primarily contends that his pes planus was aggravated in service from marching and hiking and that his back disorder was either incurred in service from carrying heavy packs, or is secondary to his pes planus. Service treatment records show that pes planus was noted on his entrance examination in February 1956. Therefore, the Veteran is not considered sound with respect to his feet and he can only bring a service connection claim for aggravation of his pes planus. If a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 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). The primary determination is whether there is evidence the Veteran's pes planus increased in severity in service. The burden is on the Veteran to demonstrate this. The standard for this determination is whether it is at least as likely as not (i.e., 50 percent probability or greater). The service treatment records show that in July 1956 the Veteran was seen for complaints of fallen arches since one and half months earlier. He first noted pain while in the field; only his right foot hurt. There was no swelling, only pain, mostly when he walked on hills and off and on when walking level. He was given soles and ace bandages with no relief. The consultation report shows the Veteran had bilateral pronation and calcaneovalgus and second degree pes planus. He was prescribed Thomas heels with 5/16 inch medial wedges. In September 1956, the Veteran complained of his feet hurting when walking and running and standing for long periods of time. He was told to have certain heels put on his shoes, but this did not help. An October 1956 treatment record notes the Veteran complained that his "Thomas heels" did not help and still gave him trouble. His right foot gave him the most trouble but his left foot also hurt. He was ordered sponge rubber arch supports and was to continue with the heels. A January 1958 treatment record shows the Veteran had complaints of a wart on the bottom of his right foot and had pain when stepping on it. The wart was later removed in January 1958. In February 1958, the Veteran was found physically qualified for duty at sea and in the field and for release from active duty. It was noted that he had pes planus but that this was not considered disqualifying. The Veteran submitted a statement in November 2006 along with his VA Form 9 that he did not know he had bad feet at the time of his entrance into the military but that the military should not have accepted him if they knew his feet were bad. In March 2010, the Veteran submitted a statement that he was sent to the motor pool in service for a few months to stay off of his feet as much as possible, and continued to assert that the running and marching during his service in the U.S. Marine Corps aggravated his pes planus. In order to address the issue of whether the Veteran's pes planus was aggravated in service, VA provided the Veteran with a VA examination in July 2006 and supplementary medical opinion in March 2010. In July 2006, the VA examiner noted that the service records indicated treatment for painful feet; but found no clear and unmistakable evidence that the Veteran's condition was aggravated beyond the natural progression of his service. He observed that the Veteran's pes planus was no more severe at present than it was during service. The Board remanded the case for a supplementary opinion in November 2009, as the examiner had used the wrong standard for the initial inquiry of whether the Veteran's pes planus was aggravated; (i.e., the standard should be at least as likely as not, rather than clear and unmistakable evidence); also the determining factor was not rather his pes planus was more severe at present, but rather whether it became more severe in service. In March 2010, the VA examiner clarified his prior opinion. He stated that, according to the record, the Veteran had had painful feet since childhood, but never sought medical treatment prior to service. He opined that seeking treatment during service was an elective decision on the part of the Veteran and that he did not know if the Veteran's pes planus increased in severity during service, but that his prior medical opinion from 2006 had not changed. He indicated that just because the Veteran sought treatment for the feet during service, did not necessarily mean that his pes planus had worsened, but more likely, it reflected convenience of medical care. In summary, the examiner opined, based on the total evidence of record, that the Veteran's feet have been stable over the years and thus, it was less likely than not that his bilateral pes planus had worsened during service. In August 2010, the Board denied the Veteran's service connection claim for pes planus finding that the only probative evidence of record showed that the Veteran's bilateral pes planus was not aggravated by service. The Board relied on the VA medical examination and opinion in July 2006 and March 2010 in making this assessment and determined that the only other evidence in the claims file alleging that the Veteran's preexisting bilateral pes planus was aggravated during service consisted of the Veteran's own statements. The Board cited to Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); 38 C.F.R. § 3.159, and determined that as a lay person without medical training, the Veteran was not qualified to render a medical opinion regarding a diagnosis of a disease. The Court determined, however, that the Board relied on the wrong legal standard to find the Veteran's statements not probative, as lay persons are competent to make assertions regarding frequency and severity of observable symptoms. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) ("Lay testimony is competent ... to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection."(quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994))); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay persons are competent to testify to pes planus, in particular symptoms of pain and visible flatness of the foot). The Court thus found that as the Veteran is competent to testify as to his symptoms of pes planus and their degree of severity, the Board's statements of reasons and bases for determining that his statements lacked probative value was inadequate. The Court also noted that the Board did not address the Veteran's statements that he only found relief from his pes planus when he was transferred to the motor pool and no longer required to be on his feet for as long. In addition, the Court found that the March 2010 medical opinion was inadequate because the examiner contradicted himself by saying that on the one hand he "really would not know" if the Veteran's pes planus increased in severity during service, but then noted that the Veteran's seeking treatment in service most likely reflected the convenience of care. The Court noted that the examiner did not provide any rationale for his assessment or explain the inconsistencies in his findings. Based on the Court's memorandum decision and remand, the Board determines that another VA medical opinion is warranted to determine whether it is at least as likely as not that the Veteran's pes planus underwent an increase in severity in service; and if so, whether there is clear and unmistakable evidence that the pes planus was not aggravated in service (because, for instance, the increase was due to the natural progress of the disease). Regarding the Veteran's service connection claim for a back disorder, the Veteran's representative submitted private treatment records demonstrating complaints of back pain from 1992 to 1993 and also copies of the SSA decision, which noted that the Veteran stated that a doctor told him to stop working because of his pain and that he had constant neck and lower back pain. It also was noted that the Veteran had degenerative disease of the spine, but it is not clear if this refers to the cervical or lumbar spines. A February 2013 statement from Dr. Brooks also was submitted noting that the Veteran's lower back pain was the result of his absence of a functional foot. The records dated in 1992 to 1993 are from N. County Neurosurgery signed by Dr. Lattinville. It is not clear if there are other records addressing the Veteran's back. The Veteran should be asked to identify any further treatment he received at this facility. The Court also indicated that the Board should request records from SSA, other than his medical records, to determine whether there is any relevant information concerning the back. The Veteran's representative submitted a copy of the SSA decision, however, the Board should also contact SSA to make sure that there is no other outstanding information, pursuant to the Court's remand. Thereafter, the Veteran should be afforded a VA examination addressing the claimed back disorder, also pursuant to the Court's remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to identify any additional treatment he has received for his back or feet disabilities, including any from his private doctor, Dr. Brooks at Midwest Podiatry, or Dr. Lattinville in Bridgeton, Missouri. If the Veteran responds, make reasonable efforts to obtain these records and notify the Veteran of any responses received and what further steps VA will make regarding the claim. 2. Arrangements should be made to obtain a copy of the Veteran's SSA decision granting disability benefits in September 1993. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Arrangements should be made to obtain any additional, relevant VA treatment records at the VAMC in St. Louis, Missouri, dated since March 2010. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of his pes planus disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. After a thorough examination the examiner should address the following: a) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's pre-existing pes planus disability underwent an increase in severity in service. In making this assessment, please consider the service treatment records and the Veteran's lay statements regarding his symptoms experienced in service and being transferred to the motor pool where he would be required to do less standing. b) If the answer to a) is in the affirmative, please state whether there is clear and unmistakable evidence (obvious or manifest) that the pre-existing pes planus was NOT aggravated during service, for example because the increase in severity was not beyond the normal progress of the disease. In providing these opinions, the examiner should acknowledge the Veteran's statements regarding his symptoms associated with his pes planus in service and note that for purposes of the opinion the Veteran's reports should be presumed credible. The examiner must discuss the rationale of all opinions, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record, including diagnostic studies, and assertions made by the Veteran. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 5. The Veteran also should be afforded an appropriate VA examination to determine the current nature and etiology of his back disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted to determine if the Veteran has a present back disability. After a thorough examination the examiner should address the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that any current back disability had its clinical onset during active service or is related to any disease, event, or injury (including from carrying heavy packs) during service. (b) Whether it is at least as likely as not (50 percent or greater probability) that any current back disability was proximately caused by his pes planus. (c) Whether it is at least as likely as not (50 percent or greater probability) that any current back disability was aggravated (meaning chronically worsened) by his pes planus, including as due to any altered gait. The examiner must discuss the rationale of all opinions, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record, including diagnostic studies, and assertions made by the Veteran. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 6. After the requested examinations have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. If either report is deficient in any manner, it should be returned to the examiner for corrective action. 7. Finally, readjudicate the claims on appeal. If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. The appellant 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States 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. 2012). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2012).