Citation Nr: 1800489 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 15-33 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for pes planus (claimed as feet condition, flat feet). 2. Entitlement to service connection for lumbar spine arthritis (claimed as low back condition). ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1961 to September 1963. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. An April 2017 Board decision remanded the claims. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The claims file contains evidence of record clearly and unmistakably showing both that the Veteran's pes planus pre-existed service and that it was not aggravated by service, or is otherwise related to service. 2. The claims file contains evidence of record clearly and unmistakably showing both that the Veteran's lumbar spine arthritis pre-existed service and that it was not aggravated by service, or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus have not been met. 38 U.S.C. §§ 1101, 1111, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for lumbar spine arthritis have not been met. 38 U.S.C. §§ 1101, 1111, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104, (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 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). Certain disabilities, including arthritis and organic neurological disorders, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). A veteran 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, the VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089, 196 (Fed. Cir. 2004). III. Analysis Pes Planus In this case, the Board acknowledges a current diagnosis of pes planus based on a June 2017 VA examination report. As to etiology, there are multiple conflicting opinions. In a May 2013 VA examination report, the examiner opined that the Veteran's pes planus was at least as likely as not incurred in or caused by a claimed in-service injury, even, or illness. The rationale was that the Veteran had incurred pes planus during service. The examiner noted that on the Veteran's June 1959 entrance examination, no pes planus was reported. However, the Board notes that on the Veteran's September 1961 Report of Medical Examination and Report of Medical History for induction, pes planus was noted, but found to be asymptomatic. An October 1961 x-ray showed moderate pes planus. This seems to indicate that the Veteran's pes planus pre-existed active service as the Veteran was inducted into active service in September 1961, after the June 1959 entrance examination. The May 2013 VA examiner did not address this evidence, that the Veteran's pes planus could have preexisted service when giving the positive nexus opinion. In a subsequent October 2013 VA addendum opinion, the examiner opined that the Veteran's service treatment records (STRs) were silent as to an event that would have aggravated his preexisting pes planus. The examiner opined that it was less likely than not that the Veteran's pes planus had been aggravated beyond its natural progression by active duty. The Board notes that this opinion seems to acknowledge that the Veteran's pes planus preexisted service and was mainly concerned with whether the Veteran's pes planus was aggravated in service. However, the opinion did not state that there was clear and unmistakable evidence that the Veteran's pes planus was not aggravated beyond its natural progression by active service. In the June 2017 VA examination report, the VA examiner opined that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale was that although the Veteran had chronic symptoms associated with his preexisting pes planus, it was not until over 40 years later, in 2010, after military service, that he experienced an acute exacerbation in his symptoms. The VA examiner noted that the Veteran's pes planus remained static and stable up until that time. The Veteran did not have any functional loss or limitation of activity. The examiner noted that there was no evidence of aggravation in the Veteran's claims file. In weighing the various VA medical opinions, the Board notes that the May 2013 opinion overlooked or ignored the evidence that the Veteran's pes planus pre-existed service. The VA examiner based the positive nexus opinion on an inaccurate fact. This error carries significant implications. Coburn v. Nicholson, 19 Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (noting that a medical opinion based on inaccurate facts has little probative value); Swann v. Brown, 5 Vet. App. 229 (1993); Black v. Brown, 5 Vet. App. 177 (1993). As a result, the Board finds the May 2013 VA examiner's opinion to be inadequate and of limited probative value. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The subsequent October 2013 addendum opinion did not address whether there was clear and unmistakable evidence that the Veteran's preexisting pes planus was not aggravated by active service. As a result, this opinion is also of limited probative value. Id. The June 2017 examination report noted that there was clear and unmistakable evidence that the Veteran's pes planus pre-existed service and was not aggravated further by active service. The Board finds this opinion to be adequate as supported by a clear rationale and of greater probative value than the previous ones. As a result, the Board determines that the presumption of soundness has been rebutted. The Board is aware of the Veteran's lay contentions as to the onset and progress of pes planus. The Veteran is certainly competent to observe symptoms relating to the feet. However, he has not been shown to possess the medical training or expertise needed to ascertain whether such symptoms equate to a disability, the date of onset of such disability, or whether observable symptoms constitute aggravation of an existing disability. As such, his lay contentions lack probative value, particularly in comparison to the examination evidence noted above. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the above analysis, the Board finds that the Veteran's preexisting pes planus was not aggravated by active service, and the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b) (2012). Lumbar Spine Arthritis In this case, the Board acknowledges a current diagnosis of lumbar spine arthritis and lumbar spine epidural abscess, with residuals of chronic pain and reduced spine mobility, based on a June 2017 VA examination report. As to etiology, there are multiple conflicting opinions. In a May 2013 VA examination report, the examiner opined that it was at least as likely as not that the Veteran's back condition was incurred in or caused by a claimed in-service injury, event, or illness. The ratione was that on the Veteran's August 1963 Report of Medical History for separation, it was noted that he had a muscle strain of the sacrum-coccyx region in 1958. The Board notes that an injury in 1958 would have been before the Veteran was inducted, as the Veteran entered active service in September 1961. In a subsequent October 2013 VA addendum opinion, the examiner noted that the Veteran's muscle strain pre-dated active service. The VA physician opined that the Veteran's STRs were silent as to an event that would have aggravated his lumbar spine condition. The Board notes that the opinion did not state that there was clear and unmistakable evidence that the Veteran's pes planus was not aggravated beyond its natural progression by active service. In the June 2017 VA examination report, the VA examiner opined that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale was that although the Veteran had chronic symptoms associated with his preexisting lumbar arthritis, it was not until over 40 years later, in 2010, after military service, that he experienced an acute exacerbation in his symptoms. The Veteran had a separate diagnosis of a back injury which included surgical repair of an epidural abscess in 2014. The formation of the epidural abscess in the lower back was a separate diagnosis unrelated to the Veteran's preexisting lumbar arthritis. As a result, the Board determines that the presumption of soundness has been rebutted. The VA examiner also opined that it was less likely than not that the Veteran's current back condition was incurred in or caused by an in-service injury, event, or illness. The rationale was that the VA examiner was unable to find any military service treatment records which indicated any ongoing or chronic lower back issues. Forty two years after completion of military service, the Veteran presented for evaluation and treatment of sudden onset severe lower back pain in May 2010. The VA examiner noted that the Veteran's epidural abscess was most likely a consequence of complications of this back treatment. The VA examiner explained that since there was over a 40 year gap in the onset of the Veteran's lower back pain in 2010 and his completion of military service in 1963, it was difficult to show causality with military service. The development of spinal stenosis in a person of the Veteran's age with preexisting arthritis was consistent with the natural history and progression of arthritis. In weighing the various VA medical opinions, the Board notes that the May 2013 opinion overlooked or ignored the evidence that the Veteran's lumbar spine arthritis preexisted service. The VA examiner based the positive nexus opinion on an inaccurate fact. This error carries significant implications. See Coburn v. Nicholson, supra. As a result, the Board finds the May 2013 VA examiner's opinion to be inadequate and of limited probative value. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. The subsequent October 2013 addendum opinion did not address whether there was clear and unmistakable evidence that the Veteran's preexisting lumbar spine arthritis was not aggravated by active service. As a result, this opinion is also of limited probative value. Id. The June 2017 examination report noted that there was clear and unmistakable evidence that the Veteran's lumbar spine arthritis pre-existed service and was not aggravated further by active service. The Board finds this opinion to be adequate as supported by a clear rationale and of greater probative value than the previous ones. As a result, the Board determines that the presumption of soundness has been rebutted. Based on the above analysis, the Board finds that the Veteran's preexisting lumbar spine arthritis was not aggravated by active service, and the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b) (2012). The Board is aware of the Veteran's lay contentions as to the onset and progress of his low back disability. The Veteran is certainly competent to observe symptoms relating to the low back. However, he has not been shown to possess the medical training or expertise needed to ascertain whether such symptoms equate to a disability, the date of onset of such disability, or whether observable symptoms constitute aggravation of an existing disability. As such, his lay contentions lack probative value, particularly in comparison to the examination evidence noted above. See Jandreau v. Nicholson, supra. ORDER Entitlement to service connection for pes planus is denied. Entitlement to service connection for lumbar spine arthritis is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs