Citation Nr: 1800345 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-16 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for pes planus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2001 to July 2001 and from December 2003 to March 2005. He also had additional Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal of September 2011 and October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a subsequent May 2016 rating decision, the RO granted service connection for sleep apnea. As that is a full grant of the benefit sought as to that issue, it is no longer on appeal. The Veteran was scheduled for a Travel Board hearing in June 2014, but did not appear. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). In June 2015, the Board reopened the Veteran's claim for entitlement to service connection for pes planus and remanded that issue, along with the initial rating increase of the Veteran's GERD, for further development. The issue of an initial rating in excess of 10 percent for GERD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his pes planus was incurred in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for pes planus have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Given the favorable disposition of the Appellant's claim for service connection for pes planus, the Board finds that all notification and development action needed to fairly adjudicate this claim have been accomplished. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In November 2000, the Veteran's service treatment record (STR) entrance examination and report of medical history do not indicate that he had complaints of or symptomology regarding his feet. In his August 2005 post-deployment physical, the Veteran reported painful or swollen joints and numbness/tingling in his hands or feet. In August 2006, a retention STR report of medical history showed that the Veteran did not report pain or problems with is feet. A concurrent report of medical examination showed that the Veteran had pes planus. In a December 2010 VA examination, the Veteran reported having flat feet which started in-service. In October 2011, a VAMC primary care record showed the Veteran to have complaints of pain in his bilateral feet, which was worse in the morning. In October 2011, a VA medical center (VAMC) X-ray of the Veteran's bilateral feet indicated that he had a small calcaneal spur of the left foot and an unremarkable X-ray of the right foot. In August 2013, the Veteran testified before a Decision Review Officer (DRO). He stated that his foot pain began when he was deployed and had to run in his boots in the sand. In April 2014, a VAMC X-ray of the Veteran's feet indicated that he had bilateral plantar calcaneal spurs. In August 2015, the Veteran submitted a lay statement wherein he indicated that his feet hurt him while in-service. In April 2016, a VA examination diagnosed the Veteran with bilateral pes planus. The Veteran reported that he began experiencing bilateral foot pain due to extensive periods of running in the sand his boots. The Veteran reported that his bilateral feet were painful, worse at night. He stated that his pain was 7 out of 10 and that he took over the counter medication to relieve the pain. He reported flare-ups in the morning and at night. He stated that wearing heavy boots caused him to have additional pain and affected his gait. Upon examination, he was found to have pain in his bilateral feet, with no pain on manipulation or swelling. He had characteristic callouses on both feet. He had extreme tenderness of plantar surfaces of both feet. There was no objective evidence of marked deformity or marked pronation of either foot. He did not have "inward" bowing of the Achilles tendon or inward displacement of the Achilles tendon. He exhibited a mildly abnormal gait. He had regular use of heel cups. The examiner found the Veteran's pes planus was less likely than not related to service, as the Veteran did not report foot pain in his post-deployment physical or in his medical treatment after service. In March 2017, a lay statement from the Veteran's wife indicated that since his return from deployment, the Veteran had been experiencing severe foot pain, especially in the morning. Based on the foregoing, the Board finds that all doubt should be resolved in the Veteran's favor, and that service connection should be granted for pes planus. The record shows that he has a current diagnosis and continuously related his foot pain to his service. In addition, he reported joint pain/swelling and foot/hand numbness or tingling in his August 2005 post deployment physical. As the Veteran has never made complaints of hand pain, it is reasonable to infer that he was reporting his foot pain in the August 2005 physical and that his disability was subsequently diagnosed in his August 2006 retention examination. Though the April 2016 examiner did not related the Veteran's pes planus disability to service, the examiner also did not report the Veteran's positive report of foot pain after deployment. Additionally, the Veteran has consistently related his foot pain to his service and has submitted a lay statement indicating that his foot pain began after his deployment. He also testified as much. The Board finds, then, that the evidence is in equipoise. Accordingly, the benefit-of-the-doubt doctrine is for application and service connection is warranted. ORDER Service connection for pes planus is granted. REMAND Although further delay is regrettable, the Board finds that additional development regarding the Veteran's GERD is necessary prior to appellate review. The Veteran seeks an increase in his initial rating for his service-connected GERD. Pursuant to the prior remand, the Veteran underwent a May 2016 VA examination. The examination report listed the Veteran's GERD symptoms as including material pyrosis (heartburn), but did not indicate that the Veteran had suffered from substernal chest pain. A review of the medical records of evidence indicated that the Veteran did have reports of and treatment for chest pain. Further, the May 2016 VA examination report stated the Veteran did not report considerable impairment of health, however, the examiner did not make a determination of whether the Veteran's GERD was productive of impairment of health. Additionally, the Veteran has submitted lay statements where his GERD has caused him severe pain. Based on the foregoing, the Board finds that the previous VA examination for GERD was inadequate for adjudication purposes and, therefore, an additional VA medical examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303 (2007) and Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and severity of his service-connected GERD. All indicated studies/diagnostic tests must be conducted, and all findings must be reported in detail. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this REMAND, and any electronic records, were reviewed in connection with this examination. The examiner should determine whether the Veteran has symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; other symptom combinations productive of severe impairment of health; persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; or any of the above. The examiner should include in the examination report the rationale for any opinion expressed. 2. After ensuring compliance with the development requested above, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant 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. §§ 5109B, 7112 (2012). ______________________________________________ Bradley W. Hennings Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs