Citation Nr: 1803614 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-16 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for a bilateral foot skin rash/infection, to include tinea pedis. 3. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected bilateral status post ankle sprain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sean Raymond, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1985 to June 1990. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified before the undersigned at a Board videoconference hearing in July 2017. A hearing transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An inadequate examination frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). As a preliminary matter, the record contains a collection of disability benefits questionnaires and examination reports pertaining to multiple claims that were obtained in June 2012. These documents include examination and opinion reports concerning the Veteran's claimed bilateral pes planus. However, there appears to be two separate opinion documents from the same examiner with respect to pes planus. The Board notes that for one opinion, the examiner marked a box that reads, "The claimed condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service injury, event, or illness." The examiner then provided a contradictory rationale that reads, in pertinent part, "based on medical records and the known progression of the condition involved, the Veteran's bilateral pes planus existed prior to service but there is no supporting evidence to indicate any aggravation beyond natural progression by military service." In another opinion within the same body of documents, produced by the same examiner, the examiner marked a box that reads, "The 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." Such inconsistencies notwithstanding, the examination reports are also inadequate for other reasons. The law presumes every Veteran to be in sound condition upon entry except as to any injury or disease noted at the time of enlistment. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In determining whether a specific condition is "noted" on entry, the Board's analysis is limited to whether the condition was recorded in an examination report. 38 C.F.R. § 3.304(b). When examined for enlistment into service in January 1986, the Veteran's feet were assessed as abnormal. The entry examination report noted mild pes planus, also known as "flat feet." A pre-existing injury or disease noted on entry into service will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). 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. 38 C.F.R. § 3.306(b). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Given that flat fleet were noted as a preexisting defect upon entry to service, the RO should not have asked the examiner to opine as to whether bilateral pes planus existed prior to service. Additionally, the examiner's responses invoking the presence of "clear and unmistakable evidence" are improper given that clear and unmistakable evidence is required only to rebut the presumption of soundness with respect to claimed preexisting injuries and diseases that are not noted upon entry; or to rebut the presumption of aggravation where a preservice disability is found to have underwent an increase in severity in service. 38 C.F.R. § 3.304(b), 3.306(a). In this case, the proper question for the examiner concerns whether it is at least as likely as not that the Veteran experienced an increase in severity of his bilateral pes planus disability while in service based on the nature of his current disability and the evidence of record, to include the Veteran's lay statements at his July 2017 Board hearing that his arches grew progressively worse while in service despite a lack of contemporaneous service treatment records indicating as such. Were such an increase in severity to be established, the Veteran's pre-existing bilateral pes planus disability would then be presumed as aggravated by service, rebuttable only be clear and unmistakable evidence to the contrary. Consequently, due process requires a medical opinion reflecting employment of the correct standard and question with respect to the Veteran's bilateral pes planus service connection claim. The June 2012 examination and opinion is also inadequate with respect to the claim for service connection for a bilateral foot skin disability. A June 2012 VA examination reports notes diagnoses of bilateral tinea pedis and bilateral dermatophytoses. While the Veteran reported previous athlete's foot on his June 1986 report of medical history, the examining physician noted "active tinea pedis 0 this time" and did not include tinea pedis on the Veteran's report of medical examination, or any other indication that the Veteran had recurrent tinea pedis noted as a defect upon entry to service. Under the circumstances, the history tinea pedis as reported by the Veteran at the time of entry into service does not equate to it being noted upon entry to service; nor may it be considered not clear and unmistakable evidence of a chronic pre-existing disability. Indeed, the Veteran claims that he suffered from tinea pedis while in service. Consequently, the June 2012 VA examination, which provided only an opinion as to whether tinea pedis existed prior to service and was aggravated beyond its natural progression in-service, but did not address any medical questions regarding direct service connection, is inadequate. Lastly, the claim for entitlement to service connection for a bilateral knee disability must be remanded as it is inextricably intertwined with a pending increased rating claim for a service-connected bilateral ankle disability. At his July 2017 Board hearing, the Veteran clarified that he was claiming his bilateral knee disability as secondary to his service-connected bilateral ankle disability. In November 2017, the Veteran submitted a claim for an increased evaluation for his service-connected bilateral ankle disability. The record reflects the RO is currently undertaking development of the bilateral ankle disability increased rating claim. As the Veteran has claimed his bilateral knee disability as secondary to his bilateral ankle disability, any development or adjudication with respect to the evaluation of the service-connected bilateral ankle disability may affect the Veteran's service connection claim for any bilateral knee disability. Consequently, the claim for service connection for a bilateral knee disability must be remanded as inextricably intertwined with a pending increased rating claim for the Veteran's service-connected bilateral ankle disability. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file any outstanding VA or private medical records. Take appropriate efforts to obtain any records identified by the Veteran or otherwise. 2. Obtain a supplemental VA medical opinion, from an appropriate examiner, concerning the issue of entitlement to service connection for bilateral pes planus. The examiner should review the Veteran's claims file, including the June 2012 VA examination report and opinion, and this Remand. If the VA examiner deems that another physical examination is necessary to provide the requested opinion, the Veteran shall be afforded an opportunity to attend such an examination. The examiner shall respond to the following question: is at least as likely as not (50 percent probability or greater) that the Veteran's pre-existing bilateral pes planus (noted upon entry to active duty service service), was aggravated by active duty service (chronically increased or worsened in severity beyond the natural progression of the disease). Should aggravation be found, the examiner should identify the pre-aggravation baseline level of severity of the bilateral pes planus, and opine as to what extent the increase in disability was due to service or the natural progression of the disease. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed bilateral foot skin rash/infection, to include tinea pedis. The examiner should review the Veteran's claims file in conjunction with the examination, including the June 2012 VA examination report and opinion, and this Remand. The examiner shall respond to the following questions: a) Is it at least as likely as not that the Veteran suffers from a recurrent and/or chronic skin disability of the feet, manifested by rash and/or infection, to include tinea pedis? b) If the answer the above question is in the affirmative, is at least as likely as not (50 percent probability or greater) that any such skin disability of the feet was incurred in or as a result of active duty service? All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Complete development and adjudication of the Veteran's pending bilateral ankle disability increased rating claim not on appeal prior to any necessary development and readjudication of the inextricably intertwined bilateral knee disability service connection claim on appeal. 4. After completion of the above, and any other development deemed necessary, readjudicate the claims on appeal. If the benefits sought remain denied, furnish a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).