Citation Nr: 1334479 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-31 102A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for a bilateral leg condition, to include as secondary to bilateral pes planus. 3. Entitlement to service connection for a back condition, to include as secondary to bilateral pes planus. 4. Entitlement to service connection for bilateral knee genu varus, to include as secondary to bilateral pes planus. 5. Entitlement to service connection for depression, to include as secondary to the Veteran's service connected disabilities. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to April 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2006 and June 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified before the undersigned Veteran's Law Judge at an April 2012 Travel Board hearing, and a transcript of this hearing is of record. In April 2013, the Veteran submitted additional evidence, but waived RO initial review. 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 is seeking entitlement to service connection for bilateral pes planus. At the time of the Veteran's enlistment examination, in March 1971, the Veteran was noted to have second degree pes planus that was asymptomatic. In January and February 1972, the Veteran twice sought medical treatment for complaints of pes planus. There is no evidence of further treatment and a separation examination is not available for review; however, at his Travel Board hearing, the Veteran testified that his symptoms persisted through his military service, and over time, his condition has gradually worsened. A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2013). Only such disorders as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in the disorder during such military service, unless there is a specific finding that the increase in the disorder is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disorder underwent an increase in severity during the military service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the disorder. Aggravation may not be conceded where the disorder underwent no increase in severity during the military service on the basis of all the evidence in the record pertaining to the manifestations of the disorder prior to, during, and subsequent to the military service. 38 C.F.R. § 3.306(b). If a preexisting disorder is "noted" on entering the military service, in accordance with 38 U.S.C.A. § 1153, the veteran has the burden of showing an increase in the disorder during the military service. If the veteran meets that burden and shows that an increase in the disorder occurred, then the burden shifts to the government to show that any increase was due to the natural progress of the disease. Compare 70 Fed. Reg. 23,027-29 (May 4, 2005) (codified at 38 C.F.R. § 3.304(b)) with Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C.A § 1111 to the extent that it states that the presumption of soundness may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran concedes that his pes planus had its onset during his childhood, prior to his enlistment, but he has testified that the physical demands of his military service permanently worsened this pre-existing pes planus deformity. He has asserted that the two instances of treatment in service should be considered evidence that his disability increased in severity during service, as he was asymptomatic at the time of his enlistment. In November 2005, the Veteran was afforded a VA examination of his pes planus. The examiner stated, "sparse evidence in the Veteran's [service treatment records] supports the opinion, it is at least as likely as not, that the Veteran's bilateral foot condition is related to his military service." Unfortunately, this medical opinion is inadequate for several reasons. First of all, it is unclear whether the examiner used the appropriate standard in determining if the Veteran's bilateral pes planus is related to service. That is, whether the examiner found that the Veteran's pre-existing bilateral foot condition was permanently aggravated (worsened) by the Veteran's active military service beyond the natural progression of the disability. Additionally, the examiner failed to provide a rationale for his conclusions. A medical opinion that contains only data and conclusions is accorded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In June 2006, the Veteran was afforded another examination. The June 2006 VA examiner opined that the Veteran's pes planus is less likely than not permanently aggravated beyond the natural progression of the condition. The examiner acknowledged that during the Veteran's service, his pes planus became symptomatic and he required treatment; however, he opined that this aggravation was temporary. Unfortunately, the examiner failed to explain the bases for his conclusions. As the Board has noted, a medical opinion that contains only data and conclusions is accorded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, on remand, the Veteran should be afforded a new VA examination of his bilateral pes planus. The examiner is asked to opine whether there is clear and unmistakable evidence that the Veteran's pre-existing bilateral pes planus was not permanently aggravated beyond the natural progression of the disability by his active military service on the basis of all the evidence in the record pertaining to the manifestations of the disorder prior to, during, and subsequent to the military service. As the Veteran has claimed that his bilateral leg disability, back disability, bilateral knee genu varus, and depression were either caused or permanently aggravated by the Veteran's bilateral pes planus, the Board finds that these issues are inextricably intertwined with the issue of entitlement to service connection for bilateral pes planus. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Accordingly, the case is REMANDED for the following action: 1. Associate the Veteran's most recent VA outpatient treatment records that are not already of record with his claims folder. 2. The RO should schedule the Veteran for a VA examination of his bilateral pes planus. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The examiner is asked to opine whether there is clear and unmistakable evidence (obvious or manifest) that the Veteran's pre-existing pes planus condition was not permanently aggravated (worsened) by the Veteran's active military service beyond the natural progression of the disability. A complete rationale for this opinion should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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).