Citation Nr: 1317690 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 03-00 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1981 to March 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the claim. The Veteran was scheduled for a Board hearing at the Atlanta RO on September 10, 2012. Notice of the hearing was mailed to the Veteran in August 2012. The Veteran did not appear at the scheduled hearing and did not provide a cause for his failure to appear. To date, VA has not received any request from the Veteran to reschedule his September 2012 Board hearing. In January 2007, the Veteran submitted a statement that raised a claim of entitlement to service connection for peripheral vestibular disorder. This issue was previously referred in March 2007 but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. 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 Regrettably, a remand is necessary for further evidentiary development of the claim for service connection for bilateral pes planus. The Veteran contends he has bilateral pes planus that was caused by his active military service, specifically wearing combat boots and spending many hours walking and marching. See, e.g., Claim for Compensation, August 2003; Notice of Disagreement, December 2007. While the Veteran's December 1980 Report of Medical Examination included a checked box indicating that his feet were normal, a March 19, 1981 notation of significant interval history on his Report of Medical Examination on entrance into service records a finding of pes planus. It was also noted on March 19, 1981 that no "disqualifying" defects were found. The first post-service documentation of the Veteran's foot condition is an October 1999 Report of Medical Examination record that diagnosed the Veteran with pes planus. In June 2003, the Veteran was diagnosed by a private doctor with several foot related conditions, including pes planus. The same month, the Veteran was treated at the Dublin VA Medical Center (VAMC). He reported pain of 7 out of 10 in the back of his legs, feet and right knee that has existed for more than ten years. In July 2003, upon physical examination at the VAMC, the Veteran was diagnosed with pes planus. An October 2006 occupation health medical examination found that the Veteran's feet hurt and the physical examination noted flat feet. The Veteran received treatment for his pes planus from Dr. E.O, a private podiatrist, from December 2007 to May 2008. The record also contains opinions on the etiology of the Veteran's bilateral pes planus from three separate doctors. July 2008 correspondence from Dr. I.E.A., stated that after interviewing the Veteran and performing a thorough physical examination, he diagnosed the Veteran with various conditions, including pes planus. In the doctor's opinion, the wearing of combat and safety steeled toed shoes and prolonged walking and standing on hard concrete surfaces has greatly accelerated the Veteran's foot conditions. The Veteran's VA podiatrist, Dr. W.J., who treated the Veteran from April 2009 to June 2011, provided a medical opinion in June 2011. The doctor summarized the Veteran's medical history and recent treatment for flat feet and opined that it stands to reason that the Veteran's flat foot condition was exacerbated by prolonged boot wear and the rigors of military demands on his feet. A third opinion was obtained from Dr. E.O. in July 2011, wherein he opined that there is a direct connection between the Veteran's flat feet and military training exercise. As the Veteran's pes planus was noted on his service entrance examination, it is considered a pre-existing condition. 38 U.S.C.A. §§ 1111, 1137. 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 the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). It is the Secretary's burden to rebut the presumption of in-service aggravation. See Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228 (1991). 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; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition"- that is, a worsening that existed not only at the time of separation but one that still exists currently, is required. See Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Additionally, silence of the record on this point may not be taken as an indication of no aggravation. An opinion must be provided. See Verdon, 8 Vet. App. 529; Wisch v. Brown, 8 Vet. App. 139 (1995). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the nexus between in-service activities and a potential permanent aggravation of a foot condition, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to address the question of whether the Veteran's service permanently aggravated his pre-existing pes planus. An adequate medical opinion must consider all relevant records in the VA claims file so that the opinion is fully informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). None of the medical opinions currently of record considered the fact that the Veteran's bilateral pes planus was noted upon his entry into service. Additionally, none of the doctors specifically found that there was a permanent worsening of his pes planus as a result of service (although this is implied by the use of the terms "accelerated" and "exacerbated"). See Verdon, 8 Vet. App. at 538. Therefore, a VA opinion is needed which considers all of the medical treatment records, including the Veteran's STRs and provides a clear and concise opinion as to whether or not the Veteran's military service permanently aggravated his pre-existing bilateral pes planus. See 38 C.F.R. § 3.159(c)(4). The record shows that the Veteran has been receiving treatment for his pes planus from the Dublin VAMC. The most recent Dublin VAMC records in the file date from April 2009. Therefore, it is necessary to request any additional VA treatment notes from the Dublin VAMC. See 38 C.F.R. § 3.159(c)(2). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all medical care providers who treated him for foot issues since service. After securing the necessary release(s), obtain the identified records, including all relevant records from the Dublin VAMC from April 2009 to present. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed foot condition(s). The claims file, including a copy of this REMAND, must be made available to the reviewing examiner, and the opinion should reflect that the claims file was reviewed. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer opinions as to the following questions: Does the evidence of record show that the preexisting foot disability (pes planus) noted upon entrance underwent a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disease? Also, if the Veteran currently has a diagnosis of any other foot disorder than pes planus, please offer an opinion as to the likelihood that such disorder had onset during or was caused by his active duty service. A complete rationale should be given for all opinions and conclusions expressed. The examiner's rationale must address the three medical opinions currently of record. If the examiner must resort to speculation to render the requested opinion, he/she must state why this question is outside the scope of a medical professional conversant in VA practices. 3. After completion of the above and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL MARTIN 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).