Citation Nr: 1753513	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  12-02 668A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for pes planus. 

2.  Entitlement to an initial rating in excess of 10 percent prior to September 9, 2011, an in excess of 20 percent thereafter, for service-connected degenerative arthritis medial compartment of the left knee.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

Jack S. Komperda, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1994 to July 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, and a March 2012 rating decision from the Appeals Management Office (AMO) (formerly the Appeals Management Center) in Washington, D.C.

In November 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the proceeding is of record.

This matter was previously before the Board in March 2017, at which time the issues of entitlement to service connection for pes planus and hypertension, as well as entitlement to an initial rating for degenerative arthritis medial compartment of the left knee, were remanded for additional development.  Subsequently, in a September 2017 rating decision, the service connection claim for hypertension was granted.  As such, this issue is no longer before the Board.

The issue of entitlement to increased rating for the left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Pre-existing asymptomatic pes planus was noted on the Veteran's examination upon induction into service and did not increase in severity during active duty service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for pes planus have not been met.  38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992).

The law provides that every 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.  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 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413 (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.  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 (2003); see also 38 C.F.R. § 3.306 (b).

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 (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 (Fed. Cir. 2002). 

The Veteran seeks service connection for bilateral pes planus.  Moderate asymptomatic pes planus was noted on the Veteran's June 1994 enlistment examination.  Therefore, his pes planus pre-existed active service and the claim is for aggravation.  38 C.F.R. § 3.306.  The Veteran has asserted his pes planus worsened during active service.  Notably, he provided credible lay testimony at his November 2015 Board hearing that his duties as a security police officer involved long periods of standing, walking and running which worsened his condition.  Further, the Veteran stated that he sought treatment during service and was given insoles for his shoes to help alleviate his symptoms.   

The Veteran was afforded a VA examination in February 2016 to determine whether his pre-existing pes planus was aggravated by his active duty service or whether any increase in severity was due to the nature progress of the disease.  The VA examiner concluded that the Veteran's pre-existing pes planus was "less likely than not aggravated by service beyond natural progression of the disease."  

Pursuant to the March 2017 Board remand, the Veteran's claim was remanded for a VA examiner to provide an addendum opinion concerning the etiology of the Veteran's pes planus, with specific consideration of the Veteran's statements that his in-service duties as a police officer worsened his condition.

In March 2017, a VA examiner concluded that it was less likely than not that the Veteran's pre-existing pes planus was aggravated by service.  In support of this conclusion, the examiner stated that service treatment records were silent for any problems arising from pes planus , any worsening of the condition or the onset of onset of any foot conditions for which pes planus is a risk factor.  The examiner further noted that the Veteran's reports of pain did not equal aggravation of his pes planus "because pain can be due to local other foot conditions and referred from other lower extremity conditions."  

In this instance, the evidence of record does not support a finding that the Veteran's bilateral flat feet increased in severity during active duty service.  Prior to service, as shown by the service entrance examination, the Veteran's flat feet were considered asymptomatic.  After an examination and review of the Veteran's claims file, a VA examiner also stated in his March 2017 report that there was no evidence of aggravation of the Veteran's pes planus during service.  The medical evidence of record fails to show that the Veteran's flat feet were permanently aggravated due to his active duty service.  

The only other evidence in support of the claim is the Veteran's own opinion.  Lay persons are competent to provide opinions on some medical issues.  Kahana v. Shinseki, 24 Vet. App. 428(2011).  However, the question of aggravation here extends beyond an immediately observable cause-and-effect relationship and thus, falls outside the realm of common knowledge of a lay person.  Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). 

Based on the foregoing, the Board finds that the Veteran's flat feet disability did not increase in severity during service.  As an increase in severity has not been shown, the presumption of aggravation does not apply.  Accordingly, the preponderance of the evidence shows that the Veteran's pre-existing flat feet were not aggravated by active service.  Therefore, service connection is not warranted.  See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306(b). 

Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for service connection flat feet must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to service connection for pes planus is denied.


REMAND

In March 2017, the Board remanded the increased rating claim for a left knee disability to afford the Veteran a new VA examination in order to obtain findings consistent with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016).  

In April 2017, the Veteran underwent a VA knee and lower leg conditions examination.  However, the examination report is inadequate to adjudicate the Veteran's claim.  The VA examiner noted that the Veteran stated he could not bend his left knee.  However, the examiner also stated without explanation that the Veteran's inability to bend his knee did not amount to ankylosis.  No explanation was given for why the Veteran could not proceed with range-of-motion testing of his left knee, and the examiner provided little insight into the functional impairment caused by the Veteran's left knee disability beyond the Veteran's lay reports that he was "unable to run, jump, jog, or stand for long periods of time" and he was unable to climb steps without assistance.

Accordingly, this claim must now be remanded for a new examination.  The Board notes that the duty to assist is not a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence.  See Hayes v. Brown, 5 Vet. App. 60 (1993).  Claimants who fail to cooperate during VA examinations subject themselves to the risk of an adverse adjudication based on an incomplete and underdeveloped record.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005).

Since the claims file is being returned it should be updated to include any outstanding VA treatment records.  See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran dated since September 2017.  If no medical records are available, this fact should be noted in the Veteran's claims file.

2.  Then schedule the Veteran for a VA examination to determine the current severity of his left knee disability.  The examiner is requested to delineate all symptomology associated with, and the current severity of, the left knee disability.  The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose if possible. 

The examiner should specifically test the Veteran's left knee range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. 

The examiner should specifically discuss the Veteran's functional loss in terms of range of motion during a flare-up.  If the examiner cannot provide an opinion without resorting to mere speculation, such must be stated along with a supporting rationale explaining why speculation is required.

3.  After conducting any other development deemed necessary, re-adjudicate the Veteran's claims.  If any benefit remains denied, issue an appropriate Supplemental Statement of the Case (SSOC), and give the Veteran and his representative an appropriate opportunity to respond.  The case should then be returned to the Board, if otherwise in order, for further appellate review.

The Veteran 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).




______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs