Citation Nr: 1601081 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 11-04 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for pes planus. 2. Entitlement to service connection for a thoracolumbar spine disability, to include as secondary to pes planus and bilateral knee degenerative arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1982 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, denied the claims on appeal. In April 2014, the Veteran testified before a Decision Review Officer (DRO) at the Atlanta RO; a copy of the transcript is of record. In September 2015, the Veteran testified before the undersigned via video conference; a copy of the transcript is also of record. In the Veteran's February 2011 substantive appeal, he indicated that he also wished to appeal the issues of entitlement to service connection for a right hip disability, a left shoulder disability, and sinusitis. In an April 2014 correspondence, the Veteran withdrew the appeal regarding the issues of entitlement to service connection for a right hip disability and for a left shoulder disability. In a July 2014 rating decision, the Veteran was granted entitlement to service connection for sinusitis. These issues are therefore no longer on appeal. The Board notes that, in October 2015, the RO denied entitlement to service connection for sleep apnea and the Veteran timely filed a November 2015 notice of disagreement with this decision. It appears that the RO is in the process of developing the claim. Therefore, a remand for issuance of a statement of the case is therefore not warranted in this case at this time. 38 C.F.R. § 19.9(c) (codifying Manlincon v. West, 12 Vet. App. 238 (1999)). The issues of entitlement to service connection for depressive disorder, posttraumatic stress disorder (PTSD), erectile dysfunction, a right ankle disability, and a left ankle disability have also been certified to the Board and are awaiting a hearing. They will be addressed in a separate Board decision following the hearing. The issue of entitlement to service connection for a thoracolumbar spine disability, to include as secondary to pes planus and bilateral knee degenerative joint disease, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Pes planus was noted on entry into active duty service. 2. There was no increase in the severity of the Veteran's pes planus beyond the natural progress of the condition during service. CONCLUSION OF LAW Pes planus was noted at entry into service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1131, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Here, regarding the duty to notify, the Veteran was sent comprehensive VCAA letters in January 2009 and July 2009. This was prior to when the rating decision on appeal was issued in November 2009. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records and all relevant pre-and post-service treatment records, and by providing an examination, when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished in this case, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In particular, the claims file contains the Veteran's service treatment records, which appear to be complete. VA has also undertaken extensive and reasonable efforts to obtain all relevant post-service records, and the Veteran has not identified any further treatment records relevant to the appeal which have not yet been obtained. The Veteran was afforded a VA examination in May 2014, and the Board finds that the VA examination and opinion are adequate to decide the issue pertaining to pes planus, as they were based upon consideration of the Veteran's medical history, including his lay assertions and his current complaints, and because they sufficiently inform the Board of the examiners' judgment and essential rationale for the opinions. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-106 (2012). In addition to the documentary evidence, the Veteran's testimonial statements are of record, including testimony provided at his April 2014 DRO hearing and September 2015 Board hearing. At these hearings, the issues on appeal were identified and suggestions made regarding the submission of necessary favorable evidence. The Veteran had an opportunity to present additional testimony on the essential elements necessary to prove the claims, and all hearing duties are found to be satisfied. See 38 C.F.R. § 3.103(c); Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the issue decided herein may be considered on the merits at this time without prejudice to the Veteran. II. Analysis The Veteran contends that he has pes planus which was aggravated by his military service. In a statement submitted in February 2009, he wrote that his foot disorder began in August 2007. In subsequent correspondence, the Veteran wrote that his flat feet disability began during his basic training or in July 1987. The Veteran has submitted numerous written statements describing that he has joint pain while walking or standing that is related to flat feet and that the poor foot gear he was given in service, combined with the required extended standing and exercise, exacerbated his collapsed arches, causing long-standing foot injury. At an April 2014 DRO hearing, the Veteran stated that he first had problems with his feet in basic training when he had to run long distances in combat boots. He stated that going to sick call at that time was discouraged, so he treated himself with ice and over the counter medication. The Veteran presented similar testimony at the September 2015 Board hearing. The Veteran submitted a sworn declaration in August 2015 stating that during basic training, was unable to finish runs in formation due to pain in his feet, ankles, knees, and back. He wrote that going to sick call in service for treatment of joint pain was discouraged. Nearly identical August 2015 declarations were also signed by two of the Veteran's Army colleagues, M.M. and Y.B. The Veteran's spouse submitted a statement in August 2015 indicating that the Veteran called and wrote her during his basic training and throughout service, saying that he had severe pain in his feet when participating in marching and running activities, but that he was afraid to seek medical assistance because of possible repercussions from his drill instructor. She wrote that in December 1988, she observed the Veteran experiencing pain in his feet. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C.A. § 1111. In this case, pes planus was noted on the Veteran's February 1982 entrance examination (noting the feet as mild, NCD). The Veteran's service treatment records also include a July 1987 medical examination noting bilateral decreased arches, tender over the first metatarsal plantar aspect. The December 1989 separation examination noted bilateral pes planus. When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, the dispositive issue in this regard is whether the Veteran's preexisting defect, infirmity, or disorder relating to pes planus was aggravated by his service. In determining whether there has been aggravation, the statute and regulation indicate that the first question to be asked is whether there was an increase in disability. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a preexisting injury or disease will be considered to have been aggravated by 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"). In other words, if there is an increase in disability during service, aggravation is presumed, and this presumption can only be rebutted with clear and unmistakable evidence that the increase was due to the natural progress of the disease. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups during service of a preexisting 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). If VA determines that there has been an increase in disability, the presumption of aggravation applies regardless of whether the degree of worsening is enough to warrant compensation under the VA rating schedule. Browder v. Derwinski, 1 Vet. App 204, 207 (1991). The Veteran's post-service private and VA treatment records show occasional complaints of foot pain. On an April 1990 Report of Medical History for employment with the Department of Justice, the Veteran reported no lameness, recurrent back pain, or foot trouble. A March 1993 physical examination for his job shows no back or feet disabilities. In February 1994, the Veteran reported that the bottom of his feet hurt every day and that he had low back pain early in the morning. In January 2009, the Veteran complained of bilateral foot pain, and he stated that he was told while in the military that he was bow legged and flat footed. June 2010 foot scans show that the Veteran has excessive foot pronation, which results in the collapse of the arches and is commonly called flat feet. At a March 2014 podiatry consultation, the Veteran reported pain upon standing and walking on the plantar aspect of the feet. He was diagnosed with foot and ankle pain secondary to traumatic arthritis, plantar fasciitis, and pes planus. A September 2009 letter from private chiropractor E.D. and physician S.B. indicates that the Veteran "states that most of his medical conditions are a direct result of his military service work requirements and duties he had to perform while in the military as well." They wrote that it was their opinion that the Veteran had "chronic pain in the knees, feet, hip, lower back which is directly related to occupational stress and activities related to military training and military work requirements." A January 2011 letter from private chiropractor E.D., nurse practitioner M.C., and physician S.B. stated that the Veteran's bilateral foot pain and chronic lower back pain was the direct result of "long standing pes planus which was blatantly, outright ignored by the Army at the time of his entry of duty." They wrote that the Veteran should not have been allowed to enlist in military service and that the torque force and internal rotation stresses caused by pes planus led to chronic degenerative changes and pain in his leg, hip, pelvis, and back. They wrote that it was their opinion that the Veteran "suffered chronic pain and chronic degenerative changes" in the feet and other joints secondary to pes planus which could have been avoided if the military had actively treated his condition in service. An August 2015 Disability Benefits Questionnaire from the Veteran's chiropractor E.D. states that the Veteran has bilateral acquired pes planus and congenital pes planus with foot pain. It notes that the diagnosis of acquired pes planus was in October 2010. The chiropractor wrote that the Veteran "had congenital pes planus when joining the military, when marching, running, etc. in service worsened the condition." He then wrote that the Veteran "had persistent bilateral foot pain consistent with pes planus and direct causation by military service." The chiropractor wrote that altered foot biomechanics due to severe pes planus and plantar fasciitis limited walking and activities of daily living. The Veteran was afforded a VA examination in May 2014. The Veteran reported that he had always had pes planus and that he had foot pain during his service. He reported having daily foot pain that was aggravated by increased activity. Physical examination found symptoms consistent with pes planus and plantar fasciitis. The examiner opined that the Veteran's pes planus clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. He explained that the Veteran's pes planus had progressed as expected based on the physical examination, and there was no evidence to suggest that pes planus had been aggravated beyond the natural progression secondary to service. After reviewing all of the evidence of record, the Board finds that the weight of most probative evidence goes against finding that the Veteran's pes planus increased in severity due to his military service. The opinion of the May 2014 VA examiner, who provided an adequate medical opinion based on a review of all evidence of record and who fully explained the reasons for his conclusions based on an accurate characterization of the evidence, is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). This physician found that the evidence of record showed no worsening beyond the natural progression of the Veteran's pes planus. This finding is supported by the other medical evidence of record, which includes April 1990 and March 1993 examinations showing no foot problems. While the Veteran did complain of recurrent foot pain in February 1994, there is no indication that the Veteran's foot disability had worsened from its condition prior to service, as foot pain is an expected symptom for pes planus. The Veteran's chiropractor has submitted several correspondences on the Veteran's behalf, two of which are also co-signed by other medical professionals. When evaluating medical opinions it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations, and there must be plausible reasons for favoring one opinion over another. The Board has considered the opinions offered by these submissions, but find that as they are not supported by the evidence of record, they are entitled to less probative weight than the May 2014 VA examiner's opinion. The September 2009 letter makes it clear that the Veteran's chiropractor is reliant on the Veteran's own lay statements regarding when his foot pain began and its relationship to his service, as he wrote that the Veteran "states that most of his medical conditions are a direct result of his military service work requirements." The September 2009 and January 2011 letters do not actually indicate that the Veteran's pes planus underwent an increase in severity during service, but rather, state that the Veteran's other joint pains were caused by his pes planus, and that the Veteran should not have been accepted into the military in the first place because he had pes planus. Only the August 2015 Disability Benefits Questionnaire provides an opinion on whether the Veteran's pes planus increased in severity during service, stating that the Veteran's congenital pes planus was made worse by marching and running in service. The Board does not find that this opinion is supported by the medical evidence of record, as there is no indication in the Veteran's service treatment records of any complaints or treatment related to a foot disability other than the July 1987 notation of decreased arches, tender over the first metatarsal plantar aspect, and the December 1989 notation of bilateral pes planus. The Veteran's 1990 and 1993 examinations show no foot problems, and there are no records of any foot complaints or treatment until 1994, four years after the Veteran's separation from service. The Veteran's chiropractor did not have access to these medical records, and appears to have based his opinion entirely on the reports of the Veteran that he had worsening during service. While the lack of access to the claims file is not necessarily fatal in determining the adequacy of an examination if the examiner has been provided the factually accurate and relevant facts of the claim, in this instance it does not appear that the private chiropractor was aware of the Veteran's full medical history, and he does not make reference to any medical records that could support his opinion. See Nieves-Rodriguez, 22 Vet. App. at 300-1; see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Furthermore, while the chiropractor indicates that the Veteran developed acquired pes planus in 2010, many years after his military service had ended, the disability that he argues had been worsened by service is congenital pes planus. By specifically separating the Veteran's acquired foot disorders from his congenital pes planus, the examiner has made it clear that the Veteran's disorder in service was a congenital one. Service connection for congenital or developmental defect is precluded by 38 C.F.R. §§ 3.303(c), 4.9 (2015). Congenital defects may be service-connected only where a superimposed injury occurs during, or as a result of, active service, and in this case, there is no evidence that such an injury occurred. See VAOPGCPREC 82-90. Even if the Board were to accept the August 2015 medical opinion as a probative opinion on the worsening of pes planus in service, the examiner clearly indicates that the Veteran had only congenital pes planus at that time, and does not indicate that any superimposed injury occurred for which service connection could be granted. The Board has also considered the Veteran's lay statements and the statements signed by his spouse and colleagues. In making all determinations, the Board must fully weigh the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana v. Shinseki, 24 Vet. App. 428, 433-34 (2011). Generally, a lay person is competent to report on the onset and continuity of his symptomatology. Kahana, 24 Vet. App. at 438. The Veteran's lay statements indicate that during service he had pain in his feet after marching or running and would treat them with ice. The Board finds no reason to question the credibility of these statements. They do not, however, provide evidence that the Veteran's pes planus actually underwent a permanent increase in severity during service. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen, 4 Vet. App. at 306. A symptom such as pain following excessive exercise is one that, even to a lay person, would be expected in conjunction with a flare up of pes planus. The weight of the evidence does not show that the Veteran's preexisting pes planus disability chronically increased in service. Rather, it shows that he merely experienced temporary flare ups of pain. The temporary nature of these symptoms is further reinforced by the fact that he was found to have normal feet at examinations in 1990 and 1993. The Veteran has not been shown to possess the requisite training or credentials needed to render a competent medical opinion as to such a complex medical question as whether his preexisting pes planus had been permanently aggravated in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Even to the extent that he can competently report on his symptoms and treatment, these contentions are outweighed by the weight of the more probative medical evidence of record, that of the opinion provided by the May 2014 VA examiner. The evidence thus weighs against a finding that there was an increase in severity of the Veteran's preexisting pes planus disorder and the presumption of aggravation is thus not for application. The preponderance of the evidence is therefore against the claim for entitlement to service connection for pes planus. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for pes planus is denied. REMAND While the Veteran primarily contends that his thoracolumbar spine disability was caused by pes planus, in his February 2011 substantive appeal and several subsequent correspondences, the Veteran also alleged that his low back disability was caused or aggravated by his service-connected degenerative arthritis of the bilateral knees. An August 2015 Disability Benefits Questionnaire from the Veteran's chiropractor states that the Veteran has middle and low back pain secondary to service-related pes planus, knee osteoarthritis, and repetitive spinal strain injuries. The Board notes that the Veteran has been service connected for bilateral knee degenerative arthritis since December 2008. The Veteran was afforded a VA examination of the spine in May 2014, but the examiner did not address whether the Veteran's thoracolumbar spine disability was caused or aggravated by his service-connected bilateral knee degenerative arthritis. The Board therefore finds that the VA examination opinion is inadequate, and this issue must be remanded in order to obtain an adequate addendum medical opinion. Further, while the August 2015 DBQ indicates a possible secondary relationship, it does not provide a rationale for the conclusion reached. Accordingly, the case is REMANDED for the following actions: 1. Obtain an addendum opinion from the examiner who performed the May 2014 examination for thoracolumbar spine conditions. If the May 2014 examiner is no longer available, forward the request to an appropriate examiner to address the following questions: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current thoracolumbar spine disorder had its onset during service or was caused or otherwise related to any event in service? (b) Is it at least as likely as not that the Veteran's thoracolumbar spine disorder was either (i) caused or (ii) aggravated (permanently worsened beyond the natural progression) by his service-connected bilateral knee osteoarthritis? Please fully explain why or why not. (c) Address, as needed, all medical articles submitted by the Veteran showing a relationship between foot and knee disabilities and back pain, and any other relevant medical literature. If the examiner determines that additional examination, studies, or opinions are necessary, then appropriate action should be taken to accomplish the suggested development. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. 2. After the above development has been completed, readjudicate the claim for entitlement to service connection for a thoracolumbar spine disability, to include as secondary to pes planus and bilateral knee degenerative arthritis. If the benefit sought on appeal remains denied, furnish the Veteran and his agent a supplemental statement of the case and return the case to the Board. 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 2014). ______________________________________________ P. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs