Citation Nr: 1803342 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-23 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for a bilateral foot disability other than bilateral pes planus, to include plantar heel spurs. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Davis, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1985 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned at a videoconference hearing in August 2017. A transcript of the hearing has been associated with the Veteran's claims file. The Veteran's appeal has been adjudicated as one for a bilateral foot disability, to include pes planus and plantar heel spurs. The evidence of record is sufficient to establish service connection for pes planus. However, additional evidentiary development is necessary before a decision can be reached as to whether any other foot disability may be service-connected. As such, the Board has bifurcated the Veteran's foot disability claim, and has recharacterized the issues as stated above. The issue of entitlement to service connection for a bilateral foot disability other than pes planus, to include plantar heel spurs is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). (CONTINUED ON NEXT PAGE) FINDING OF FACT The evidence of record favors a finding that the Veteran has a bilateral pes planus disability that had its onset during her period of active service. CONCLUSION OF LAW A bilateral pes planus disability was incurred in service. 38 U.S.C. §§ 5107, 1131 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims entitlement to service connection for bilateral pes planus. She asserts that her disability had its onset in service, and is due to wearing ill-fitting boots during training exercises. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). To establish service connection a claimant must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, although an April 2012 VA examiner noted no evidence of flat feet on x-ray, the Veteran's treating physicians have diagnosed her with bilateral acquired pes planus. See, e.g., an October 24, 2017 radiology report of Dr. C.D. Significantly, Dr. C.D. provided a letter to VA on October 24, 2017 specifically indicating that on seated examination, the Veteran appears to have a normal-appearing arch that does flatten on weight-bearing exam. Dr. C.D. concluded that "[t]his is fitting with the clinical diagnosis of pes planus." Accordingly, a current pes planus disability is demonstrated. With respect to in-service injury or disease, the Veteran's October 17, 1989 examination upon separation specifically indicates that the Veteran had "flat feet" on examination. Such was not identified upon entrance into service in 1985. With respect nexus, in her October 24, 2017 letter, Dr. C.D. observed that flat feet was indicated on the Veteran's discharge records, and opined that the Veteran's foot pain was caused by her time in the Navy. She based this opinion on a review of the Veteran's medical history, her understanding that "flat feet" was diagnosed in service, and that the Veteran has competently reported attesting to having longstanding foot problems. No other medical opinion specific to the etiology of the Veteran's pes planus disability exists of record. As the Veteran's current pes planus disability is specifically noted on separation, and her treating physician has linked such disability to service, the Board finds that entitlement to service connection for pes planus is warranted. ORDER Service connection for pes planus is granted. REMAND The evidence of record includes medical treatment for, and diagnoses of several foot disabilities other than pes planus, to include bilateral heel spurs and plantar fasciitis. As noted above, the Veteran contends her foot disabilities had their onset in or are otherwise related to service, and were caused by wearing ill-fitting boots during training exercises. Although an April 2012 VA examiner indicated it was less likely that the heel spurs were related to service, the examiner's opinion was based largely on an absence of treatment for spurs during service or in the years thereafter. On remand, the Veteran should be scheduled for a VA foot examination to assess the nature and etiology of each of the Veteran's foot disabilities (other than pes planus). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran the opportunity to identify and submit, or authorize VA to obtain any relevant records of treatment for her bilateral foot disabilities that are not currently on file. Obtain all identified records. 2. Schedule the Veteran for a VA foot examination to assess the nature and etiology of the Veteran's foot disabilities (other than bilateral pes planus). The claims file should be provided to, and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of her foot symptomatology since service. Upon review of the Veteran's medical history, and after interview and examination of the Veteran, the examiner should respond to each of the following: a.) Clarify the Veteran's foot disabilities other than pes planus. b.) For each disability identified, is it at least as likely as not (50 percent or greater probability) that such disability had its onset in, or is otherwise related to the Veteran's period of service, to include wearing ill-fitting boots during training exercises in service? c.) Notwithstanding the answer to (b) above, is it at least as likely as not (50 percent or greater probability) that any diagnosed foot disability was caused or aggravated beyond its natural progression by the Veteran's now service-connected bilateral pes planus disability? A medical explanation or rationale should be provided in support of each of the above opinions. 3. Readjudicate the appeal. If the benefits sought are denied, send the Veteran and her representative a Supplemental Statement of the Case, and afford them an opportunity to respond. The case should then be returned to the Board for 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). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs