Citation Nr: 1318529 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 07-00 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a right ankle/heel disorder. 2. Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from January 1990 to January 1994 and from February 1994 to January 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board observes that the Veteran previously requested the opportunity to testify at a Travel Board hearing before a Veterans Law Judge. However, although a hearing was scheduled for May 2009, the Veteran did not appear. As such, his request for a Travel Board hearing is deemed withdrawn. See 38 C.F.R. §20.704(d) (2012). The Board has previously considered these claims, most recently in October 2012. At that time, the Board remanded the claims for further VA examination, including a consideration of the Veteran's complaints of continuity of symptomatology. The agency of original jurisdiction (AOJ) scheduled the Veteran for further VA examination, which was carried out in October 2012. However, at that examination the examiner failed to consider the Veteran's contentions regarding the continuity of his symptomatology, despite a clear directive in the Board's remand to do so. Thus, there is not compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Regardless, the Board finds the error to be harmless, as the Board is herein granting the Veteran's claims for service connection. Please note that 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). FINDINGS OF FACT 1. The Veteran has residuals of right ankle sprain, including plantar fasciitis, tarsal tunnel syndrome, and an osteophyte of the right heel, that are attributable to his period of active military service. 2. The Veteran has bilateral pes planus that is attributable to his period of active military service. CONCLUSIONS OF LAW 1. The Veteran has residuals of right ankle sprain, including plantar fasciitis, tarsal tunnel syndrome, and an osteophyte of the right heel, that are the result of disease or injury incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The Veteran has bilateral pes planus that is the result of disease or injury incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran is seeking service connection for a right ankle/heel disorder and pes planus. The Board concludes that the VCAA does not preclude the Board from adjudicating the Veteran's claims. This is so because the Board is taking action favorable to the Veteran by granting the benefits sought. See Bernard v. Brown, 4 Vet. App. 384 (1993). Criteria & Analysis Relevant medical evidence consists of the Veteran's service treatment records and reports of his ongoing care by private and VA treatment providers, as well as report of VA examinations conducted in October 2009, May 2012, and October 2012. The Veteran's service treatment records reflect that on examinations in August 1989, November 1993, October 1995 and August 2001, pes planus was noted. However, at the report of medical examination conducted in January 1994, pursuant to his entrance into his second period of active duty, no pes planus was recorded. Service treatment records further reflect that he sprained his right ankle in September 1993, during his first period of active duty. Right ankle tendonitis was noted in October 1995; at that time, he was treated with medication for pain. At his October 1995 separation medical examination, the Veteran was noted to have pes planus bilaterally, as well Achilles tendonitis on the right. Post-service treatment records reflect that the Veteran has received ongoing treatment for complaints of pain in his right ankle and his feet bilaterally. He has carried a post-service diagnosis of plantar fasciitis since at least 2004. In July 2004, the Veteran was seen for complaints of bilateral foot pain that he stated began in the military. In August 2004, a VA treatment provider diagnosed the Veteran with bilateral pes planus following complaints of symptom onset in approximately 1994. He was again seen in October 2009 for complaints of pain in his feet and his right ankle. At that time, radiological evaluation showed mild pes planus in the right foot, as well as a minimal enthesophyte at the right Achilles insertion. A February 2010 private treatment provider diagnosed him with chronic plantar fasciitis and possible tarsal tunnel syndrome. EMG study conducted in March 2010 confirmed tarsal tunnel syndrome. The Veteran was again diagnosed with tarsal tunnel syndrome and plantar fasciitis at a private treatment visit in July 2010. In May 2011, the Veteran was diagnosed with bilateral tarsal tunnel syndrome. At an August 2012 VA treatment visit, the Veteran was also noted to have possible tarsal tunnel syndrome and right ankle pain associated with osteophyte formation in the right talar neck. Further private treatment in April 2013 documents the Veteran's history of plantar fasciitis, as well as the osteophyte in the right heel. The Veteran first underwent VA examination in October 2009. At that time, he complained of pain in his feet in the heels and arches, as well as stiffness, fatigability, and lack of endurance in the feet. He stated that these symptoms began in approximately 1995, while he was still on active duty. Physical evaluation revealed flat feet bilaterally, as well as painful range of motion in the right ankle. Radiological evaluation revealed spurs on his heels bilaterally. The examiner diagnosed the Veteran with flat foot, or pes planus, bilaterally, as well as plantar fasciitis of both feet and hallux valgus of the right foot. The examiner opined that it is at least as likely as not that the Veteran's "foot problems" are related to his service in the military." In so finding, the examiner reasoned that the Veteran's pain began during his military service, particularly during his long marches and "increased physical activity," and that this increase in activity "could lead to his arch pain and heel pain." In an addendum to this opinion issued in June 2010, the examiner stated that he found no clear and unmistakable evidence that any pre-existing pes planus worsened during service beyond its natural progression. In a second addendum issued in May 2011, the examiner again stated that the Veteran's right ankle/heel disorder began in the service and is at least likely as not related to "the injury occurring during service." The examiner also reiterated his belief that the Veteran's pes planus did not increase beyond its natural progression during the Veteran's time on active duty. The Veteran again underwent VA examination in May 2012. At that time, he was diagnosed with tarsal tunnel syndrome bilaterally, as well as a right ankle sprain and bilateral plantar fasciitis. The examiner reviewed the Veteran's treatment history for right ankle and bilateral foot complaints. The examiner opined that the Veteran's right ankle/heel disorder is not related to service. In so finding, the examiner noted that the Veteran was noted to have pes planus at the entry into his first term of service in 1989. However, in reaching this conclusion, the examiner relied only on the fact that the Veteran did not seek treatment for eight years following his separation from active duty. The examiner did not consider the Veteran's complaints of having experienced the same symptoms during those eight years but rather looked solely to the lack of medical treatment in reaching a negative conclusion. The examiner found the Veteran's in-service complaints to have been acute and transitory and reasoned that his post-service weight gain and physical occupation likely led to his current complaints. Pursuant to the Board's most recent October 2012 remand, the Veteran again underwent VA examination in October 2012. Report of that examination reflects that the examiner again found the Veteran's right ankle/heel complaints not to be related to service. However, and despite the Board's clear directive in the October 2012 remand, in so finding the examiner again failed to consider the Veteran's complaints that his symptoms began during service and have continued to the present. Rather, the examiner again relied only on the Veteran's eight-year gap between separation of service and his first treatment visit for foot and heel problems. The examiner also concluded that, despite multiple diagnoses to the contrary, the Veteran does not actually experience pes planus, but rather has a "mild midstance pronation." Further, the examiner limited her negative opinion to a finding that the Veteran's right heel and ankle disorders are less likely related to his "pes planus condition," not to his service in general. The Veteran and his wife have also submitted multiple statements to VA addressing the Veteran's ongoing pain in his right ankle and his feet bilaterally. The Veteran has stated that he had to leave his job as a corrections officer due to the pain in his feet and his right ankle. The Veteran has contended that these problems began in service and have continued to the present. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. Every Veteran who served in the active military, naval, or air service after December 31, 1946, 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; see also 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (holding that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service). 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 2002); 38 C.F.R. § 3.306 (2012). Clear and unmistakable evidence is required to rebut a presumption of aggravation where the pre-service disability underwent an increase during service. 38 C.F.R. § 3.306. 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. Falzone v. Brown, 8 Vet. App. 398 (1995). Temporary or intermittent flare-ups during service 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. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). In this case, the Veteran's service treatment records reflect that he was diagnosed with a right ankle sprain while on active duty. Since that time, he has been diagnosed with plantar fasciitis, an osteophyte formation in the right heel, and tarsal tunnel syndrome in the right foot. Importantly, the October 2009 VA examiner found these disorders to be at least as likely as not related to service-an opinion he reiterated in the May 2011 addendum opinion. The Board acknowledges that the May 2012 and October 2012 VA examiner found the Veteran's right ankle and heel disorders not to be related to service. However, in those opinions the examiner repeatedly failed to consider the Veteran's credible contentions that his right ankle and heel problems began in service, following his initial right ankle sprain, and have continued without interruption from his time on active duty to the present. Further, regarding his right ankle and heel complaints, private and VA treatment providers have assessed the Veteran with tarsal tunnel syndrome, osteophyte formation in the right heel, and chronic plantar fasciitis. These findings tend to support the Veteran's contentions that he first experienced problems with his right ankle and heel in service that have continued to the present. Here, the competent medical evidence has identified that while in service, the Veteran incurred a right ankle sprain. The Veteran has testified that the symptoms of his right ankle and heel problems have continued from his time in service to the present. In addition, his wife has also submitted testimony to the same effect. The Board thus concludes that the Veteran suffers from residuals of right ankle sprain, including plantar fasciitis, tarsal tunnel syndrome, and an osteophyte of the right heel, that began during active duty. Turning to the Veteran's claim for service connection for pes planus, as noted above, the presumption of soundness may be rebutted by clear and unmistakable evidence that pes planus existed prior to service and was not aggravated by such service. The Court has described the clear and unmistakable standard as an onerous one consisting of evidence that is undebatable. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Vanerson v. West, 12 Vet. App. 254, 258 (1999). Here, although the medical examination conducted pursuant to the Veteran's entry into his first term of service document that he had pes planus at the time of his entry into active duty, the Board notes that no such disability was noted at the time of the Veteran's entrance into his second term of active duty. Specifically, no pes planus was noted at the January 1994 entrance medical examination; to the contrary, he was specifically found to have normal feet at that entrance examination. He is thus presumed to have been in sound condition when he entered service for his second tour of duty. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). To overcome the presumption, clear and unmistakable evidence must show that a disability pre-existed service and was not aggravated thereby. Service treatment records clearly demonstrate that the Veteran was diagnosed with bilateral pes planus during his second term of active duty. In that connection, the Board notes that the Veteran's separation medical examination, conducted in October 1995, reflects that he had a diagnosis of pes planus as of that time. Additionally, he answered "Yes" when asked at that time if he had any foot trouble. In this case, based on all the evidence now of record, the Board is not persuaded that there is clear and unmistakable evidence demonstrating both that the Veteran's pes planus both pre-existed his second period of active duty and was not aggravated thereby. Consequently, the presumption of soundness has not been rebutted, and the Veteran is presumed to have been in sound condition at the time he entered his second period of service in February 1994. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). As the Veteran is presumed to have been in sound condition at the time he entered service, the analysis turns to whether the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service. 38 U.S.C.A. §§ 1110, 1131. Here, the Veteran's service treatment records reflect that at his January 1994 entrance medical examination, no pes planus was noted. Thus, the Veteran is considered to have been in sound condition at his entry into his second term of service. However, at his October 1995 separation medical examination, the Veteran was clearly diagnosed with bilateral pes planus. He has since been diagnosed with pes planus by both private and VA treatment providers, including at his October 2009 VA examination, and has credibly contended that his symptoms of pes planus began in service and have continued without interruption from that time to the present. Thus, the Board finds that service connection is warranted. Given that the Veteran is presumed to have been sound at entry into his second period of active duty, the Board thus concludes that the Veteran currently suffers from bilateral pes planus that is related to his time on active duty. With application of 38 U.S.C.A. § 1111, the Board finds that the Veteran's pes planus cannot be said, on the basis of clear and unmistakable evidence, to have been extant prior to service and not aggravated thereby. The presumption of soundness is not overcome, and because the record reflects that the Veteran experienced pes planus during his second period of active duty and is currently diagnosed with bilateral pes planus, his pes planus is thus attributed to his period of military service. A grant of service connection for bilateral pes planus is therefore warranted. 38 C.F.R. §§ 3.102, 3.303, 3.304. Although a question is raised by the October 2012 VA examiner as to whether the Veteran even had pes planus during service or whether he currently has any foot disorder traceable to the problems he had in service, because the service records themselves show pes planus at the conclusion of his second term of active duty and he has had continued manifestations of pes planus since service, including at the October 2009 examination, the Board finds that reasonable doubt on this matter should be resolved in favor of the Veteran. The grant of the benefit in this case is consistent with the current state of the law. ORDER Entitlement to service connection for residuals of right ankle sprain, including plantar fasciitis, tarsal tunnel syndrome, and an osteophyte of the right heel, is granted. Entitlement to service connection for bilateral pes planus is granted. ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs