Citation Nr: 1805773 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-02 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral pes planovalgus deformities (claimed as bilateral feet condition). 2. Entitlement to service connection for bilateral ankle condition. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Lynch, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1982 to September 1984. These claims come before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran submitted a request for a Board hearing in a January 2014 letter that he subsequently withdrew in August 2014. The Board deems this request withdrawn. The Board observes that additional VA treatment records were received following the last adjudication by the RO in the November 2013 Supplemental Statement of the Case (SSOC). The Board has reviewed these records and observes that they are duplicative or not pertinent to the issue of entitlement to service connection for bilateral pes planovalgus deformities (claimed as bilateral feet condition) addressed in the decision below. The issue of entitlement to service connection for bilateral ankle condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's currently diagnosed bilateral pes planovalgus deformities (claimed as bilateral feet condition) were aggravated in service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planovalgus deformities (claimed as bilateral feet condition) have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in August 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Service Connection Legal Criteria Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must 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 determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). Bilateral Pes Planovalgus Deformities (Claimed as Bilateral Feet Condition) The Veteran contends that the physical requirements of his duties while in the Army aggravated pre-existing bilateral pes planovalgus deformities (claimed as bilateral feet condition). As to the first Shedden element of a current disability, the Veteran has a current diagnosis of various bilateral foot disorders, including bilateral pes planovalgus deformities, plantar fascial fibromatosis, bilateral posterior labial tendinitis, bilateral foot pain, fully compensated marked forefoot varus deformity, severe pes planus, antalgic gait, and degenerative arthritis in feet. See October 2010 VA examination, p. 3; September 2017 private treatment record, pp. 3, 7, and 13. As such, the Board finds that Shedden element one is met. Turning to the second Shedden element of in-service aggravation of a pre-existing injury, the evidence shows that the Veteran had mild pes planus two months prior to service entry in July 1982 and at service entry in September 1982. See September 2017 private treatment record, p. 21; November 2006 service treatment records, p. 5. The Veteran complained of foot pain in November 1982 due to small boots and the boots rubbing on the rear of his heels. See November 2006 service treatment records, p. 13. At service exit in September 1984, the Veteran was noted again as having mild bilateral pes planus. Id. at pp. 3, 4. While the Board has considered the Veteran's August 2010 claim that he has had foot pain during and since active duty, the Board notes that the August 2010 claim is the first time in the claims file that the Veteran complained of foot problems related to active duty service, almost 26 years after his September 1984 discharge. See August 2010 statement in support of claim; September 2010 statement in support of claim. In contrast, the July 1982 medical entry two months prior to service, the September 1982 medical entry at service entry, and the September 1984 medical entries at service discharge indicating no aggravation of the Veteran's pre-existing pes planus are contemporaneous with the Veteran's active duty service. As such, these earlier entries more accurately reflect the Veteran's active duty medical condition. Thus, the Board finds the earlier service medical entries to be more probative and thereby finds that the required Shedden element two is not met. Even though the required Shedden element two of in-service aggravation has not been met, the Board will continue the following analysis of Shedden element three of a nexus to evaluate all of the pertinent evidence in the claims file. In an October 2010 VA examination, the examiner diagnosed the Veteran as having bilateral pes planovalgus deformities. The examiner noted that the Veteran had mild pes planus symptoms prior to service and in-service ankle and foot pain. However, the October 2010 examiner could not form an opinion as to whether the Veteran's pre-service mild pes planovalgus deformities were increased beyond their natural progression by military service. The examiner explained that such knowledge was not available in the medical literature and any opinion would be mere speculation. The examiner further explained that a more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis. See October 2010 VA examination. In contrast, there are three other medical opinions that have opined that there is a nexus. In a July 2010 private medical examination, Dr. P diagnosed the Veteran with fully compensated marked forefoot varus deformity. He stated that the Veteran did not have symptoms prior to service, but that he has had continual pain in the ankles, feet, and knees since the early 1980s. Dr. P opined that the Veteran's foot problems were exacerbated by the physical requirements of the Army training and conditioning, to include running, jumping, standing, and other physical requirements. Dr. P opined that the necessary activities of Army duty such as marching, standing (i.e. guard duty, etc.), running, and basic training certainly caused the breakdown in the Veteran's lower extremity and feet, thereby causing painful ankles and knees. He further opined that without the rigors of military service and training, the Veteran would not have had the excessive forces and wear and tear that has slowly caused arthritic and ligamentous damage to his ankles and knees. See August 2010 medical treatment record, p. 1. Similarly, in a September 2015 private medical examination, Dr. H diagnosed the Veteran with fully compensated marked forefoot varus deformity, severe flat feet, pes planus, and arthralgia. Dr. H opined that the Veteran's foot and lower extremity problems were exacerbated by the physical requirements of Army training and conditioning, including running, jumping, standing, and other physical requirements. Based on the Veteran's condition and military service, Dr. H further opined that it was at least as likely as not that the Veteran's foot conditions were either caused by, or severely aggravated by, the Veteran's military service. See October 2015 third party correspondence. Finally, in a September 2017 disability benefits questionnaire (DBQ) examination, Dr. B diagnosed the Veteran with bilateral flat foot, bilateral metatarsalgia, bilateral hammer toes, bilateral downward and inward sharp displacement, bilateral plantar fasciitis, bilateral corns and callosities, bilateral plantarflexion deformity, and bilateral spasms. He stated that the Veteran was diagnosed with pes planus while serving on active duty and opined that the Veteran sustained in-service foot injuries that stemmed from running, jumping, standing, playing basketball, and other military training activities. Dr. B further opined that the Veteran's chronic planovalgus deformity, plantar fasciitis conditions, symptoms of plantar pain, inward displacement, severe chronic spasms, and pronation are at least as likely as not caused by, and aggravated by, his military service. See September 2017 VA examination, pp. 2-3, 10. The Board notes that all of the above medical opinions finding a nexus between the Veteran's current feet disabilities and his military service do not address, but rather contradict, the service treatment records that indicate that the Veteran's mild pes planus at service entry was also noted to be mild upon military discharge. As such, the Board affords these opinions little probative value, as they are based upon an incorrect factual premise that the Veteran aggravated his pes planus condition in service. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (indicating a medical opinion based on incorrect factual premise is not probative). In contrast, the Board finds the October 2010 VA examination to be more probative because the examiner correctly stated the facts of the Veteran's pre-existing foot problems and problems in-service, even though the examiner was still unable to form a nexus opinion without resorting to mere speculation. As noted above, the Veteran provided a statement in September 2010. The Veteran stated that during his induction physical, the doctor told the Veteran that he had flat feet, but that his flat feet should not affect his health while in the military. The Veteran stated that when he suffered from constant foot pain during basic training, he told his drill sergeant and he was sent to sick call. The Veteran stated that he was not examined at sick call, but that he was told that his boots were too tight and told to take some aspirin for the pain. The Veteran stated that when he left active duty, he continued to have foot pain when he stood for long periods, walked for long periods, or participated in any physical activity that required standing for long periods of time. See September 2010 statement in support of claim. The Veteran's wife also provided a statement in September 2010. She stated that the Veteran has experienced pain in his feet and ankles for ten years. She stated that the Veteran had the most pain when he exercised, or when was standing or walking for an extended period of time. She stated that over the years, the pain the Veteran has experienced has grown progressively worse to the point that the Veteran has had to seek medical attention. She stated that the Veteran's doctor reviewed the Veteran's records and told the Veteran that he should not have been in the military due to his condition. See September 2010 statement in support of claim. To the extent that the Veteran and his wife have alleged continuity of feet problems since service, the Board does not find that these assertions are credible. As discussed above, the service treatment records do not support the claim that the Veteran's pre-existing pes planus was aggravated during service. In fact, the Veteran's first post-service foot complaints were not until August 2010, when he filed the present claim, almost 26 years after his September 1984 separation from active duty. The absence of post-service complaints, findings, diagnoses, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, the Board finds that the assertions as to onset during service with subsequent continuity of foot problems are not supported by the objective evidence of record. Additionally, the Board has considered the Veteran's and his wife's contentions regarding the aggravation of his foot disabilities. However, as lay witnesses, they are only competent to report on observed symptoms of the Veteran's condition and his history of medical treatment. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Determining whether the Veteran's pes planus was aggravated beyond its natural progression during active duty service is beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007) (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board). As such, the Veteran's and his wife's lay assertions do not constitute competent evidence concerning the in-service aggravation of the Veteran's current foot disabilities. See 38 C.F.R. § 3.159(a)(1). Since the Veteran's medical record has a 26 year gap in documented foot complaints and the positive nexus opinions are based upon an incorrect factual premise, the Board finds that the Veteran has not shown a link between a pre-existing injury that was aggravated in-service and his current foot disabilities. As such, the required Shedden element three also is not met. In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection of bilateral pes planovalgus deformities (claimed as bilateral feet condition), and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. ORDER Entitlement to service connection for bilateral pes planovalgus deformities (claimed as bilateral feet condition) is denied. REMAND The Board finds a remand is necessary prior to adjudicating the claim for entitlement to service connection for bilateral ankle condition to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran has current diagnoses of bilateral ankle conditions, including bilateral ankle contracture, bilateral ankle arthralgia (right greater than left), bilateral arthritis, bilateral ligament damage, and bilateral ankle pain. See September 2017 private treatment record, pp. 3, 13, 14, and 17. The Veteran's service treatment records are silent as to an ankle injury in service. See March 2006 service treatment records. However, the Veteran stated that he injured his ankles on active duty, had pain in his ankles on active duty, and continued to have pain after active duty. See August 2010 statement in support of claim. The Veteran stated that when he left active duty, his ankle pain grew over the years. See September 2010 statement in support of claim. Furthermore, the Veteran's wife has also testified that the Veteran has had ankle pain since at least 2000. See September 2010 statement in support of claim. The October 2010 VA examination did not provide a diagnosis of any current ankle disabilities, nor an opinion regarding the etiology of any current ankle disabilities. See October 2010 VA examination. However, the Veteran has received two private medical examinations that have opined that the Veteran's current ankle condition is related to his active duty service. The July 2010 private examiner opined that the Veteran had pre-disposing lower extremity problems during military service that were exacerbated by the "wear and tear" of military training, causing pain and arthritic and ligamentous damage to the Veteran's ankles. See August 2010 medical treatment record, p. 1. Additionally, the September 2015 private examiner opined that the Veteran's lower extremity problems were exacerbated by the physical requirements of Army training and conditioning, to include running, jumping, standing, and other physical requirements. Based on the Veteran's condition and military service, the September 2015 examiner opined that it was as likely as not that the Veteran's current ankle condition was caused, or severely aggravated by, his military service. See October 2015 third party correspondence. Since the October 2010 VA examination did not provide a diagnosis of any current ankle disabilities nor an opinion regarding the etiology of any current ankle disabilities, the Board finds that the testimony of the Veteran and his wife, as well as the July 2010 and September 2015 private medical opinions, are enough to trigger VA's duty to assist by obtaining a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers. 2. After completing the development set forth above, afford the Veteran a VA examination with an appropriate medical examiner to determine the nature and etiology of the Veteran's bilateral ankle condition. The claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. All necessary tests and studies should be performed, and all clinical findings should be reported in detail. After a review of the record and an examination and interview of the Veteran, the examiner should offer his or her opinion as to the following inquiry: The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral ankle condition is etiologically related to, or was incurred during, his active military service. In rendering such opinion, the examiner should, at a minimum, consider and discuss the Veteran's reported injuries in service, as well as any conditions of service, such as standing, running, or jumping, that may have caused any ankle injuries. A complete rationale should be provided for any opinion expressed. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. 3. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran's claim. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. 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). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs