Citation Nr: 1803479 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-09 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to January 1981. This case comes before the Board of Veterans' Appeals (the Board) from a May 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This claim was previously before the Board in November 2015. At that time the Board also decided the issues of entitlement to increased ratings for service-connected ruptured left ear, bilateral hearing loss, right knee strain, right hip strain, left hip strain, hallux valgus deformity in the right foot, hallux valgus deformity in the left foot, and dysthymic disorder. In November 2015, the Board inferred the issue of entitlement to a TDIU from the Veteran's claims for increased ratings. See also Rice v. Shinseki, 22 Vet. App. 447 (2009). That issue and the issue of entitlement to service connection for bilateral pes planus were remanded for further development. Development actions took place and a supplemental statement of the case was issued in April 2017. The claim is properly before the Board, once again. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's bilateral pes planus was documented on his entrance examination. 2. The Veteran's bilateral pes planus was not shown to have been aggravated beyond its natural progression during the Veteran's military service. 3. The Veteran's bilateral pes planus has not been shown to have been aggravated beyond its natural progression by any service-connected disability. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus are not met. 38 U.S.C. §§ 1.110, 1112, 1113, 1137,1153 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Stegall Considerations The Veteran's claim for service connection was remanded in November 2015 to obtain an addendum medical opinion. Upon remand an addendum opinion was obtained in February 2016. The opinion is thorough, supported by the record, and answered the questions posed. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). When a disability is noted upon entry into service, service connection on a direct basis cannot be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Instead, when a condition preexisted service, service connection can only be established of the basis of aggravation. That is, the disability was aggravated beyond its natural course, either by military service or by a service-connected disability. Id.; 38 C.F.R. §§ 3.306, 3.310 (2017). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The veteran bears the burden to establish aggravation. Wagner, 370 F.3d at 1096; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). However, if aggravation is shown in service, it is presumed to be caused by military service. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2017). Aggravation may not be conceded where the disability underwent no increase in service. 38 C.F.R. § 3.306(b). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Of note, the Court of Appeals for Veterans Claims has found that a layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Nevertheless, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159 (a)(2). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis Here, the Veteran has filed for service connection for his diagnosed bilateral pes planus. This condition was noted in the Veteran's entrance examination in August 1976. The Report of Medical Examination states that the Veteran's feet were abnormal and the examiner notated "PP" to indicate pes planus was present. This was the interpretation of the notation by both the September 2010 VA examiner and the February 2016 VA examiner. As the Veteran's condition preexisted his service and was noted on his entrance examination, service connection may only be established by aggravation. The Veteran has asserted that his injury was caused by repeated parachute jumps while in service. He points to injuries to his feet while in service. The Board will consider this a claim of aggravation. The Veteran's medical records show treatment for foot injuries in October 1977 and January 1979. However, the treatment records do not mention pes planus pain. Instead they noted a bone bruise and Achilles tendon pain. Further, the February 2016 VA examiner specifically commented that the injuries did not show an increase or aggravation of the Veteran's pes planus. While the Veteran is competent to report his own experiences, including pain, his recollection of the events is far removed from the actual events in terms of time. Further, there is no indication in the file that he is competent to opine as to the exact medical condition that caused the pain. The contemporaneous records note injuries, but they are not due to pes planus. Further, a competent medical professional has noted that these injuries were not related to pes planus. Thus the weight of the evidence is against establishing an in-service aggravation of the Veteran's pes planus. The Veteran has not specifically alleged aggravation of his pes planus by his service-connected disabilities, however, the Board does note there is sufficient evidence in the record to resolve the issue of aggravation by a service-connected disability. The February 2016 examiner specifically noted after review of the entire record there was no evidence of progression, aggravation or worsening of the Veteran's pes planus post-discharge. The absence of aggravation post-discharge precludes service connection on the basis of aggravation by a service-connected condition, as aggravation is an essential element in establishing such a claim. The Board notes that the Veteran did state that he felt his foot pain had worsened since his October 1977 football injury. However, this injury was noted as not being related to pes planus. Thus any worsening of pain is also not related to pes planus. Further, the February 2016 examiner noted that there was no indication in increased symptoms related to pes planus, but noted some additional complaints of foot pain. In the context of the whole examination report, this is taken to mean that those symptoms were not related to pes planus. It is possible they are related to other foot conditions, such as the Veteran's hallux valgus or arthritis, however, those issues are not before the Board. Thus, the Veteran's statements are not contradictory to the examiner's opinion. Therefore, the weight of the evidence is against establishing there was an aggravation of the Veteran's pes planus in or after service, and service connection for the disability is not warranted. ORDER Entitlement to service connection for bilateral pes planus is denied. REMAND The development actions requested in the Board's November 2015 remand were not substantially completed. A remand by the Board confers on claimants, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). It imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Accordingly, in the present case, the additional development specified in the Board's prior remand must be substantially completed prior to adjudication. The Board remand instructed the AOJ to obtain an examination to evaluate the functional loss that results from the Veteran's combined service-connected disabilities. This examination was not obtained. Thus a remand is necessary to obtain the requested examination The Board notes that there is documentation that the examination was not scheduled because the Veteran did not complete and return a VA-Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. However, new application was not necessary to process the Veteran's TDIU claim. The claim arose out of the Veteran's previous claims for increase ratings for a ruptured left ear, bilateral hearing loss, right knee strain, right hip strain, left hip strain, hallux valgus deformity in the right foot, hallux valgus deformity in the left foot, and dysthymic disorder. As such, the TDIU claim is part and parcel to those claims and does not need a separate application. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board does make note that a completed VA-Form 21-8940 could potentially contain information that would be helpful in determining if a TDIU is warranted. It also notes that the Veteran's representative withdrew from the Veteran's claim during the remand. Considering this, it would be reasonable for the Veteran to misunderstand the value of completing the form for his claim. Thus upon remand, the Veteran should be afforded another opportunity to complete and return a VA-Form 21-8940 prior to any examination. Nevertheless, the Veteran is reminded that the duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran does not complete a VA Form 21-8940, VA may lack the information necessary to favorably adjudicate his TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of his TDIU claim. If the Veteran provides a completed VA Form 21-8940, the AOJ should complete any additional development prompted by the information on the completed form. 2. After the above development has taken place, including any necessary determination that records cannot be obtained, forward the Veteran's claims file to an appropriate examiner for an examination to address the current nature and severity of his service-connected disabilities, to include dysthymic disorder, lumbar strain, left hip strain, right hip strain, left knee strain, right knee strain, corneal scar of the right eye, bilateral hearing loss, and hallux valgus deformity of the left and right feet. A copy of this remand must be made available to the examiner for review in conjunction with this examination. Any indicated tests and studies must be accomplished. All clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is requested to provide an opinion concerning any functional impairment resulting from the Veteran's service-connected disabilities (dysthymic disorder, lumbar strain, left hip strain, right hip strain, left knee strain, right knee strain, corneal scar of the right eye, bilateral hearing loss, and hallux valgus deformity of the left and right feet.). The examiner should address the functional and occupational impairment due to the service-connected disabilities as they relate to the ability to function in a work setting, including the ability to perform sedentary and physical tasks in a work setting, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. 3. Ensure completion of the foregoing development and any other development deemed necessary, then readjudicate the issue that has been remanded. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond. 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. §§ 5109B, 7112 (2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs