Citation Nr: 1800069	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  14-16 562	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for a low back condition. 

2.  Entitlement to service connection for pes planus. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Reed, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1974 to January 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran presented testimony at a hearing before the undersigned in April 2017.  

The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's pre-existing bilateral pes planus was aggravated during active military service.


CONCLUSION OF LAW

The criteria for service connection for pes planus have been met.  38 U.S.C. §§ 1110, 1153, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110; 38 C.F.R. § 3.303.  Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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.  38 U.S.C. § 1153; 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.  38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b).

"[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder."  See Wagner v. Principi, 370 F.3d 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306.  In such claims, the claimant has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation.  See Wagner, supra; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).

Here, a bilateral foot disability was noted at the Veteran's entry into active service. His September 1974 entrance examination report includes a notation of mild, asymptomatic pes planus.  Thus, the Veteran is not presumed to have been in sound condition upon entrance into service.  Consequently, to the extent that he seeks compensation for bilateral pes planus, the burden is on him to demonstrate an increase in disability during service, which would trigger the presumption of aggravation.

The Veteran's service treatment records contain numerous complaints relating to pes planus while in service.  For example, in July 1975, the Veteran received a podiatry consultation concerning his pes planus, in which the examiner indicated that the Veteran had moderate bilateral pes planus, noting the Veteran's complaints of arch pain and leg cramps for the previous four months..  Similarly, in October 1975, the Veteran stated that he was unable to tolerate prolonged standing on the deck plate of the ship; the podiatry treatment notes indicated that the Veteran had moderate pes planus and confirmed that prolonged standing was causing strain to the Veteran's arches.  

A November 1975 medical board report noted that the Veteran had "flat feet all his life and this has been exacerbated by working as a boiler technician on board ship[;]" the medical board ultimately diagnosed the Veteran with bilateral flexible pes planus, and opined that his disability rendered him unfit for further naval service "by reason of a physical disability which was neither incurred in, nor aggravated by, a period of active military service."  However, the medical board's conclusion seems to contradict its earlier statement that the Veteran's flat feet had been exacerbated by his in-service work as a boiler technician, and the medical board does not provide any rationale to explain the apparent contradiction.  

The Veteran underwent a March 2011 VA examination in connection with his pes planus, in which the VA examiner stated that he could not provide an opinion with respect to whether the Veteran's pes planus was aggravated by service without resorting to mere speculation.  The examiner noted that the Veteran experienced pain in his feet during service, but stated that there were no records indicating that the Veteran experienced pain continuously from separation to the time of the present complaint.  

The Board finds that the evidence of record demonstrates that the Veteran's pes planus underwent an increase in severity while in service.  The Veteran's entrance examination report indicated that his pes planus was mild and asymptomatic at that time, determining that the Veteran was qualified for service at that time.  The Veteran's service treatment records then indicate that the Veteran's pes planus worsened during service in connection with his duties as a boiler technician on board a ship, with the pes planus being described as "moderate", and the medical board ultimately concluded that his pes planus rendered him unfit for further naval service.  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that a pre-existing pes planus disorder was aggravated due to military service.  

The Board further concludes that the evidence of record is insufficient to rebut the presumption of aggravation.  Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  See 38 C.F.R. § 3.306 (b); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  The March 2011 VA examiner opined that he could not address whether the Veteran's condition was aggravated beyond it normal progression during active service.  The November 1975 medical board report indicated that the Veteran's pes planus was not aggravated beyond its natural progression during active service, but also stated the Veteran's pes planus was exacerbated in-service by his work as a boiler technician on board ship; accordingly, the medical board opinion with respect to aggravation is afforded no probative value as it is internally inconsistent.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Thus, the evidence is not obvious or manifest that the increase in severity of the Veteran's pes planus during service was due to the natural progress of the condition.  To meet the clear and unmistakable standard to rebut the presumption of aggravation, the evidence must go well beyond the speculation of medical professionals.  None of the evidence of record meets this high evidentiary standard.  As such, the presumption of aggravation has not been rebutted, and service connection for pes planus based on aggravation is warranted.  

ORDER

Service connection for bilateral pes planus is granted based on aggravation during military service.

REMAND

During his hearing, the Veteran also testified that he had been receiving disability benefits from the Social Security Administration (SSA).  When VA has notice that the Veteran may be receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting SSA disability benefits, and the supporting medical documents on which the decision was based.  See Hayes v. Brown, 9 Vet. App. 67 (1996).  The Board notes that the first page of an undated SSA notice of reconsideration has been associated with the claims file, which concluded that the Veteran met the medical requirements for entitlement to disability benefits, referencing a VA medical center report received August 2012 and an Alta Medical Consulting Services report received in October 2012.  However, the actual decision granting SSA benefits has not yet been obtained, and thus it is also unclear whether all medical documentation referenced in support of that decision has yet been obtained.  Therefore, on remand, VA should acquire a copy of the decision granting SSA disability benefits, as well as copies of the medical records used in the determination of benefits made to the Veteran by SSA.  

Additionally, in his April 2017 Board hearing, the Veteran's representative indicated that the Veteran received a positive etiology opinion from a private physician in November 2011 with respect to his claimed low back condition.  That opinion has not yet been associated with the claims file.  Accordingly, a remand is required to obtain any other private or VA treatment records not already associated with the claims file.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Finally, as the Veteran's representative pointed out in the June 2017 Appellant's Brief, there are inadequacies in the 2012 VA examination and opinion regarding the Veteran's claimed lumbar spine disability.  The examiner underestimated the length of the Veteran's back complaints in service.  Although the examiner correctly noted that the Veteran's service treatment records show treatment for ligament in muscle strain in July and August 1975, he failed to consider the fact that the August 1975 service treatment record actually reflected that the Veteran reported back pain since May of 1975.  Additionally, the examiner improperly relied exclusively on the lack of "objective" evidence to provide a negative nexus opinion and failed to consider the Veteran's competent contentions regarding ongoing back pain after service.  For these reasons, the examination is inadequate and a new VA examination and opinion is warranted.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any and all VA treatment records not already associated with the claims file from the Gainesville VA Medical Center, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file.

2.  Ask the Veteran to identify any private treatment that he may have had for his skin condition, which is not already of record, including the November 2011 etiology opinion with respect to his low back condition.  After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file.  

3.  Determine whether the Veteran is receiving Social Security Administration (SSA) disability benefits.  If so, obtain the SSA records pertinent to the Veteran's claim for disability benefits, including medical records relied upon concerning that claim, and associate them with the claims file.  All efforts to obtain these records should be fully documented, and SSA should provide a negative response if these records are not available.

4.  Then, schedule the Veteran for an examination to determine the etiology of any existing lumbar spine disability.  The examiner should opine as to whether any lumbar spine condition is at least as likely as not (a degree of probability of 50 percent or higher) related to the Veteran's military service, including to the complaints of back pain noted from May 1975 to August 1975.  In providing this opinion, the examiner must expressly consider the Veteran's contentions regarding his history of back pain and cannot disregard these contentions solely because they are not corroborated by contemporaneous medical records.  A rationale must be provided for the opinion.

5.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.


The Veteran 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).

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. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs