Citation Nr: 1332771 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-00 246A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hallux valgus (bunions). 2. Entitlement to service connection for bilateral hammertoes, to include as secondary to service-connected pes planus with plantar fasciitis and/or hallux valgus. 3. Entitlement to service connection for bilateral hallux rigidus (degenerative changes of the first metatarsophalangeal joints), to include as secondary to service-connected pes planus with plantar fasciitis and/or hallux valgus. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active service from May 1979 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans' Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. In that decision, the RO denied the Veteran's petition to reopen a claim of service connection for bilateral bunions. In December 2008, the Board denied the petition to reopen the claim for service connection for bilateral hallux valgus as new and material evidence had not been received. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In an April 2010 Memorandum Decision, the Court vacated the Board's December 2008 decision and remanded the case for readjudication in compliance with directives specified in the Court's decision. In February 2011, the Board granted the petition to reopen the claim of service connection for bilateral hallux valgus and remanded the underlying claim for further development. The Veteran appealed the Board's decision to the Court. In April 2011, the Court vacated the Board's February 2011 decision and remanded the case for readjudication in compliance with directives specified in an April 2011 Joint Motion filed by counsel for the Veteran and VA. The Board notes that the Joint Motion did not discuss the issue of entitlement to service connection for bilateral hallux valgus that was remanded by the Board. Instead, the basis of the Joint Motion was that the Board had not adjudicated a claim of service connection for bilateral pes planus as directed by the Court in its April 2010 decision. However, service connection for bilateral pes planus with plantar fasciitis was granted by a Decision Review Officer in a November 2006 decision. Therefore, the full benefit sought by the Veteran with regard to service connection for pes planus has been granted and further discussion as to this matter is unnecessary. Most recently, the Board remanded the issue of entitlement to service connection for a bilateral foot disability other than pes planus with plantar fasciitis, to include hallux valgus (bunions) and hallux rigidus, for additional development in January 2012. Because the Board will be granting the issue of entitlement to service connection for hallux valgus and remanding the other two diagnoses demonstrated during the appeal period (that of hammertoes and hallux rigidus) for additional development, the Board has separately listed these issues on the first page. As a final introductory matter, the Board notes that the Veteran, through his attorney, requested additional time (90 days) to review the evidence. The motion for additional time was granted by the Board in July 2013, and the case was held in abeyance for 90 days, during which time the Veteran's representative submitted additional argument. The issues of entitlement to service connection for bilateral hammertoes and bilateral hallux rigidus, to include as secondary to service-connected pes planus with plantar fasciitis and/or hallux valgus, are addressed in the REMAND portion of the decision below and are REMANDED directly to the RO. FINDINGS OF FACT 1. A pre-existing disorder of "bilateral hallux valgus" was noted on the Veteran's examination upon enlistment into service. 2. The Veteran's pre-existing hallux valgus underwent an increase in severity in service and is presumed to have been aggravated by service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hallux valgus have been met. 38 U.S.C.A. §§ 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with the adjudication of the claim for service connection for bilateral hallux valgus given the favorable nature of the Board's decision herein. Inasmuch as the determination below constitutes a full grant of the benefit sought, any error in notice or assistance is harmless. Hallux Valgus The law provides, "[E]very 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 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. Where a disorder is noted on service entrance, a Veteran is not presumed sound and 38 U.S.C.A. § 1153 applies. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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). In such cases, the evidence must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). "If the presumption of aggravation under section 1153 arises, the burden then 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.'" Wagner, 370 F.3d at 1096 (citing 38 U.S.C.A. § 1153). This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b) (2013). 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 as contrasted to symptoms is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Accordingly, section 1153 requires an increase in the severity of the pre-existing condition, as distinguished from the mere recurrence of manifestations of the pre-service condition, and evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). After carefully reviewing the evidence of record, it is established that a pre-existing disorder of hallux valgus was noted upon entrance into service. In this regard, the Veteran's April 1979 enlistment examination indicated that the Veteran had "bilateral hallux valgus (painful when wears narrow-type shoe)." The examining provider determined that the Veteran was qualified for service and assigned a PUHLES profile of "1" for the lower extremities, which indicates a high level of medical fitness. A "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Because a pre-existing medical condition was noted upon entry into service, the presumption of soundness is not for application. 38 C.F.R. § 3.304(b). However, as stated above, a pre-existing injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during service. The question of whether a pre-existing defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches." Verdon v. Brown, 8 Vet. App. 529, 538 (1996). After such a showing, to rebut the presumption of aggravation, there must be clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) and (b). Accordingly, the threshold inquiry for establishing service connection for a pre-existing disorder is whether the evidence establishes that there was an increase in the Veteran's pre-existing bilateral pes planus in service. After reviewing the record, the Board finds that there is ample evidence demonstrating an increase in severity of bilateral hallux valgus in service. He entered service with bilateral hallux valgus, yet the Veteran was assigned a PUHLES profile of "1" for the lower extremities. For almost a full year after he entered service, the Veteran did not complain of or seek treatment for his bunions. However, beginning in April 1981, service treatment records are replete with bunion-related complaints and treatment. See April 1981, June 1981, July 1981, August 1981, May 1982, September 1982, October 1982, November 1982, December 1982, January 1983, and February 1983 service treatment records (all documenting complaints of feet pain due to bunions/hallux valgus). Notably, the Veteran was assigned several temporary profiles due to these problems, wherein he was assigned a PUHLES evaluation of "3" for the lower extremities, which signifies one or more medical conditions or physical defects that may require significant limitations. The Board finds it especially significant that, beginning in May 1982, it was noted that the Veteran should be evaluated for surgery. The Veteran was again encouraged to consider a surgical procedure in December 1982, but a January 1983 service treatment record notes that the Veteran wished to forego the surgery and to instead continue with limited physical activities in order to alleviate the pain. The recommendation of surgery at this juncture strongly suggests a material increase in severity from the Veteran's disability picture presented on entrance. Furthermore, his complaints of bilateral foot pain continued until his separation examination in March 1983 and afterwards. See June 1983 claim for benefits; post-service VA treatment records (noting complaints of bilateral bunions and foot pain). Having shown an increase in service, the Veteran's pre-existing hallux valgus is presumed to have been aggravated by service unless VA can demonstrate by clear and unmistakable evidence that any increase was due to the natural progress of the disease. In this case, there is simply insufficient evidence to rebut the presumption of aggravation. The Board acknowledges that there is some medical evidence suggesting that there was no aggravation beyond the natural progress of the disease. Namely, the August 2011 VA examination, October 2012 VA opinion, and November 2012 VA addendum opinion all state that hallux valgus was not aggravated beyond the natural progression of the disorder in service. However, these opinions all essentially rely on the absence of objective findings of aggravation, as opposed to affirmatively providing evidence to show that the increase was clearly and unmistakably due to the natural progress of the disorder by comparing any change in baseline or by discussing the aggravational nature of hallux valgus. See, e.g. Horn v. Shinseki, 25 Vet. App. 231, 240 (2012) (discussing the types of evidence that may constitute or contribute to clear and unmistakable evidence of lack of aggravation); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As such, the Board finds that they are not adequate to rebut the presumption of aggravation. Moreover, the Board notes that the Veteran submitted a private opinion from Dr. R.A.L. in February 2012 that found that "military service aggravated [the] patient's pre-existing condition." Notably, this opinion is supported by an adequate rationale: Dr. R.A.L. explained that the bunion deformity, although pre-existing, did not irritate the Veteran until after his induction into service and that service treatment records from 1979 through 1983 reflect aggravation of his bunion resulting in the fabrication of custom boots, custom insoles, and decreases participation in weight-bearing activities during service. The Board finds this opinion, along with the service treatment records, suggest a service-related and non-natural cause for the worsening of the Veteran's hallux valgus. Given this competent and probative evidence, the Board cannot find that the weight of the evidence, much less clear and unmistakable evidence, exists so as to rebut the presumption of aggravation. In light of the above, the Board concludes that the Veteran's pre-existing bilateral hallux valgus was aggravated as a result of his active duty service, and entitlement to service connection is therefore warranted. ORDER Entitlement to service connection for bilateral hallux valgus is granted. REMAND After carefully considering this matter, and for reasons expressed immediately below, the Board believes that the remaining issues must be remanded for further development of the record. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of a previous remand. However, it is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. As an initial matter, the record reflects that, following the receipt of the Veteran's initial claim to reopen hallux valgus, the Veteran was sent a June 2004 VCAA notice letter that informed him of the legal requirements and evidence needed to substantiate his claim for service connection for a bilateral foot disorder on a direct basis. Additionally, a review of Virtual VA reflects that he was provided with a letter in March 2006 that informed him that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, as evidenced by the Board's prior remand for an opinion on whether any current bilateral foot disability was either caused or aggravated by the Veteran's service-connected bilateral pes planus with plantar fasciitis or his bilateral hallux valgus, the Veteran has also raised a theory of secondary service connection. Therefore, for his claims for hallux rigidus and hammertoes, he also needs to be provided with a proper VCAA notice letter that addresses how to establish service connection on a secondary basis. See generally Kent v. Nicholson, 20 Vet. App. 1, 12 (2006) (observing that incomplete information can render a VCAA notice letter inadequate). Second, a remand is also required to ensure compliance with the Board's previous remand directive to obtain an adequate medical opinion on secondary service connection. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998) (holding where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance). In January 2012, the Board remanded the issue on appeal in order to obtain an opinion as to: whether it is at least as likely as not that any current bilateral foot disability, other than pes planus with plantar fasciitis and hallux valgus, was either (a) caused (in whole or in part) or (b) aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran's service-connected bilateral pes planus with plantar fasciitis or his bilateral hallux valgus. (Emphasis added). Although opinions were obtained on remand in October 2012 and November 2012, the Board finds that the November 2012 opinion regarding the diagnosis of hammertoes is not responsive to the Board's January 2012 remand directive. In this regard, the examiner essentially determined that the hammertoe condition was not caused or aggravated by the Veteran's pes planus with plantar fasciitis or his hallux valgus. However, the rationale for this opinion focused solely on whether the hammertoe disability was caused or aggravated by the "service-connected disabilities mentioned in this report." Unfortunately, the rationale does not address whether the hammertoe condition was caused or aggravated by the Veteran's hallux valgus, a condition for which service connection had not yet been established. Because the Board grants service connection for bilateral hallux valgus in the decision above, it is essential that the rationale for the opinion regarding secondary service connection for hammertoes also expressly address hallux valgus. Accordingly, a remand is warranted so that an adequate opinion with supporting rationale can be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA takes action to furnish a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, to the extent that the Veteran may have received any additional VA treatment since May 2013 related to his feet, recent treatment records must also be obtained on remand. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (per curiam) (indicating that documents, such as medical records generated by VA, are considered constructively part of the record before the Board). Accordingly, the case is REMANDED for the following actions: 1. The RO shall provide the Veteran with a VCAA notice letter that advises him of the information and evidence needed to substantiate his claim for service connection for hammertoes and hallux rigidus as secondary to his service-connected pes planus with plantar fasciitis and/or hallux valgus. 2. The RO shall obtain and associate with the claims file VA treatment records relevant to the issues on appeal dated from May 2013 to the present. 3. The RO shall return the claims file to the VA examiner who previously provided the addendum opinion in this case in November 2012. If the VA examiner is unavailable, arrange to obtain the requested information from another qualified examiner. The need for another physical examination is left to the discretion of the examiner selected to offer the requested opinion. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner. The examiner is requested to provide an opinion as to whether it is at least as likely as not that a hammertoe disorder was either (a) caused (in whole or in part) or (b) is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran's now service-connected bilateral hallux valgus. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, the RO shall readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. These claims must be afforded expeditious treatment. Claims remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs