Citation Nr: 1804509 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-15 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral pes planus with hallux valgus. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran had active service from August 1982 to August 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) located in New Orleans, Louisiana. In August 2017, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO in New Orleans, Louisiana. A transcript of the testimony has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remands this matter for additional development and adjudication. I. Bilateral Pes Planus with Hallux Valgus At the August 2017 Travel Board hearing, the Veteran testified that his bilateral pes planus was aggravated as a result of his service. The Veteran asserts that he served as a machine gunner and that he performed rigorous marching and training in boots. The Veteran explained that although he had bilateral pes planus prior to service, his condition worsened in service. The Veteran's service treatment records indicate bilateral asymptomatic pes planus on entry in June 1982. Service treatment records also indicate callous build up in service with a central corn on the right foot. See March 1983 service treatment record. The Veteran was afforded a VA examination of his bilateral foot disability in February 2011. At the February 2011 VA examination, the Veteran reported that he was given inserts for both shoes while deployed in Korea because of pain under the ball and heel of both feet. However, there is no such evidence in the c-file. Upon discharge, there was no complaint or physical finding related to the Veteran's feet. Where a pre-existing disease or injury is noted on an entrance examination, that pre-existing injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In this case, the Veteran's pes planus was noted upon entry, and the Veteran's service treatment record together with the Veteran's lay statements include at least some evidence demonstrating that the pre-existing disability increased in severity during service. Therefore, the presumption of aggravation attaches. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (stating that the question of whether a pre-existing defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches"). Thus, the Board concedes a worsening while in service, and the relevant question that remains is whether there is clear and unmistakable evidence that the Veteran's pre-existing pes planus with hallux valgus was not permanently worsened beyond the natural progress of the disability. The Board notes that the February 2011 VA examiner opined that "the progression of the condition bilateral pes planus with mild hallux valgus is less likely as not (less than 50/50 probability) permanently aggravated by in-service active duty causing [an] increase." However, the standard in this case is not one of "at least as likely as not," but one of whether there is clear and unmistakable evidence that the Veteran's pre-existing pes planus with hallux valgus was not permanently worsened beyond the natural progress of the disability. Therefore, this matter is remanded for an addendum opinion. Additionally, the Veteran noted treatment and a positive opinion from Dr. Snellings. No such treatment records are of record and must be obtained upon remand. II. Right Shoulder Disability and Low Back Disability The Veteran asserts that he has a current right shoulder and a low back disability as a result of his service. At the August 2017 Travel Board hearing, the Veteran testified that he fell in Korea while training with the Special Forces and Rangers. He stated that he fell into a hole and hurt his back and shoulder, but that he got up and went on. He further testified that he went to sick call and was given something to put on his arm, a small brace. After a few days he was back on duty not knowing that he had possibly torn his rotator cuff. At the August 2017 hearing, the Veteran further explained that he complained of his shoulder in service, but that his service treatment records were burned in a fire post-service. Primarily, the Board notes that service treatment records are of record. Therefore, upon remand, the Board directs the RO to clarify whether any of the Veteran's service treatment records have been burned or are currently missing. VA treatment records post-service indicate treatment of the Veteran's back and shoulder. An October 2015 treatment record reports right shoulder surgery and complaints of pain. See also April 2011 VA treatment record. A May 2010 VA treatment record indicates a history of rotator cuff of the right shoulder. See also June 2010 VA treatment records. July and August 2010 VA treatment records indicate pain in the right shoulder with limited range of motion and dislocation. The Veteran asserts that he has seen several doctors for his back problems, and that he was diagnosed with degenerative lower disc problems. See August 2017 Travel Board hearing transcript. Such treatment records have not been associated with the claims file. Therefore, upon remand, the Board also directs the RO to obtain any and all outstanding treatment records concerning the Veteran's back. Last, the Board notes that the Veteran has not been afforded a VA examination of his right shoulder and low back. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. See McLendon, 20 Vet. App. 79 (discussing circumstances under which a VA examination is required, to include: (1) evidence of a current disability; (2) evidence of an event, injury, or disease in service; (3) indication that the current disability may be associated with service; (4) and insufficient medical evidence to make a decision). As there is evidence of a current back disability and a current right shoulder disability, testimony of an in-service occurrence, and a potential link between the two, examination is required. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79. Given the lack of sufficient medical evidence to make a decision on this matter, the Veteran should be afforded VA examinations to address the etiology of any current right shoulder and low back disability. See Colvin, 1 Vet. App. 171 (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). Accordingly, the case is REMANDED for the following action: 1. Conduct an exhaustive search for any outstanding STRs not already associated with the record. All attempts should be recorded. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e) and M21-1 Part I, Chapter 1, Section C. 2. Obtain any and all outstanding private and VA treatment records, to include treatment records from Dr. Snelling and treatment records pertaining to the Veteran's low back. See August 2017 Travel Board hearing transcript. Associate such with the Veteran's electronic claims record. Specifically, concerning private treatment records, contact the Veteran and obtain authorization for release of information. Advise the Veteran that he may submit his private treatment records if he so chooses. If a negative response is received from any private or federal treatment provider, the claims file should be properly documented in this regard and the Veteran so notified. 3. Thereafter, return the claims file to the February 2011 VA examiner, or, if the examiner is unavailable, to another suitably qualified examiner, to provide an addendum opinion as to the etiology of the Veteran's bilateral foot disability, to include his bilateral pes planus with hallux valgus. The examiner must note that the claims file was reviewed. If the examiner determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After a review of the claims file, the examiner must respond to the following: Is there clear and unmistakable evidence that the Veteran's pre-existing bilateral pes planus with hallux valgus was not permanently worsened beyond the natural progress of the disability? The VA examiner's attention is directed to the following: bilateral asymptomatic pes planus upon examination at entrance in June 1982; a March 1983 service treatment record indicating callous build up in service with a central corn on the right foot; the Veteran reports that he was given inserts for both shoes while deployed in Korea because of pain under the ball and heel of both feet (see February 2011 VA examination). Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service." If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of bilateral pes planus with hallux valgus by the Veteran's active duty service. 4. After completing directives (1) and (2), schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's right shoulder disability. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimonies, and treatment records, must be reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should opine as to the following: Whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's right shoulder disability is related to his active duty service, to include his fall while serving in Korea? See August 2017 Travel Board hearing transcript. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. After completing directives (1) and (2), schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's low back disability. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimonies, and treatment records, must be reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should opine as to the following: Whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's low back disability is related to his active duty service, to include his fall while serving in Korea? See August 2017 Travel Board hearing transcript. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. Ensure that the examination reports are adequate. If deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).