Citation Nr: 1806244 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 08-39 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for pes planus. 2. Entitlement to service connection for metatarsalgia. 3. Entitlement to service connection for gout. 4. Entitlement to service connection for heel spurs. 5. Entitlement to service connection for bilateral foot hallux valgus. 6. Entitlement to service connection for nerve entrapment with arch pain, bilateral lower extremities. REPRESENTATION Veteran represented by: Jan D. Dils, Attorney ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from November 1979 through August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issues on appeal were remanded previously by the Board in August 2017 so that the Veteran could be afforded a Board hearing. Following the remand, the Veteran withdrew his hearing request. In November 2017, the Veteran provided additional evidence that is accompanied by waivers of review by the agency of original jurisdiction (AOJ). Neither the Veteran nor his representative has made a renewed a Board hearing request. The issues of service connection for metatarsalgia, gout, heel spurs, and hallux valgus are REMANDED to the RO for further development. FINDINGS OF FACT 1. The evidence reflects that the Veteran has pes planus in both feet that pre-existed his enlistment into service and that was aggravated beyond its natural progression during his active duty service. 2. The Veteran has medial plantar nerve entrapment in both feet that was caused by his pes planus. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus are met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2017). 2. The criteria for service connection for nerve entrapment with arch pain, bilateral lower extremities, are met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Analysis The Veteran has raised claims of entitlement to service connection for various disorders in his feet, to include pes planus, metatarsalgia, gout, heel spurs, hallux valgus, and nerve entrapment with arch pain. In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (2014); 38 C.F.R. § 3.303(a) (2017). Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for a disorder that pre-existed service where the evidence shows that the pre-existing disorder was aggravated by the veteran's active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). A pre-existing disability or disease will be considered to have been aggravated by active duty service if the evidence shows an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due merely to the natural progress of the disability or disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a), (b) (2017). However, where a preexisting disease or injury is noted on the entrance examination, federal statutes provide that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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." 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a)(2017). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and 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) (2017). Temporary or intermittent flare-ups of a preexisting 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). Given the foregoing law, the standard for proving a claim based on "aggravation" changes depending on whether the pre-existing disability was noted on the entrance examination report, or whether it was not but the presumption of soundness is nevertheless rebutted. For a condition that was noted at entry, the pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2017). Turning to the evidence, the Veteran has asserted in his claim that he has had chronic and ongoing pain symptoms in his feet which date back to his period of active duty service. A November 2017 statement from his significant other, who states that she has known the Veteran since 1984, attests that the Veteran has had continuing and worsening problems with his feet over that time. The Veteran's service treatment records include an August 1979 enlistment examination report, which notes pes planus that pre-existed the Veteran's entry into service. The examining medical staff offered no findings or opinions as to the severity of the noted pes planus. The Board notes, however, that the Veteran expressly denied having any previous history of foot problems on the accompanying report of medical history. Subsequent service treatment records show that the Veteran was treated in February 1981 for initial complaints of foot pain that had been ongoing for six days. A physical examination of his feet revealed bilateral pes planus that was causing tenderness over the plantar surfaces of both of the Veteran's feet. The Veteran was placed in a "flat foot program." During in-service treatment in April 1981, the Veteran reported that he had initial relief of his pain symptoms, but that pain symptoms had subsequently returned. In June 1981, he continued to report that he had pain in his arches. A physical examination at that time showed that the Veteran had a "grade III" condition at that time. Although the record indicates that the Veteran's complete service department file was obtained from the National Personnel Records Center, there is no indication in the service treatment records that the Veteran was ever given a separation examination. During a VA examination conducted of the Veteran's feet in April 1982, only eight months after his separation from service, the Veteran stated that he did not have complaints at that time relative to his feet. Still, a physical examination showed that the Veteran had at that time slight to moderate flattening of the longitudinal arches of his feet with medial bulging. The subsequent records indicate that the Veteran did not seek any evaluation or treatment for his feet until April 1997, at which time, he was seen at E.F.M. for reported tenderness and swelling over his right foot. Swelling and tenderness were noted during palpation over the medial aspect of the Veteran's right foot, particularly over his heel. In June 1997, he was seen at R.F.C. for unimproved foot pain, pronation, and abnormal weight bearing. At that time, he was fitted for custom orthotics and was advised to remain out of work for a month. In April 2005, the Veteran sought VA treatment for ongoing bilateral foot and heel pain. An examination conducted at that time revealed mild pes planus and decreased pulses over the Veteran's feet. The Veteran was diagnosed with and treated for bilateral plantar fasciitis. During VA treatment in August 2007, he continued to report ongoing and worsening bilateral foot pain and puffiness. X-rays taken at that time showed bilateral small heel spurs. During a July 2015 VA examination, the Veteran continued to report pain and swelling in his feet, particularly below his ankles and in the inner lateral aspects. An examination of the feet revealed pain during use and manipulation of both of the Veteran's feet. Swelling and callouses were also observed. Extreme tenderness was observed over the plantar surfaces. Such tenderness was unimproved with the use of orthotics. Decreased longitudinal heights were seen in the arches of both feet. Marked pronation was observed in both feet and the weight-bearing line fell over or medial to the great toes. The examiner also observed inward bowing of the Achilles tendons and metatarsalgias in both feet. Mild or moderate hallux valgus was observed. Based on the findings, the examiner diagnosed bilateral pes planus, metatarsalgia, hallux valgus, gout, heel spurs, and nerve entrapment with arch pain. The examiner was asked only to opine whether the Veteran's foot disorders were secondary to a low back disorder. The examining nurse practitioner gave no opinion as to whether any of the Veteran's foot disorders represented manifestations of an aggravation of the Veteran's pre-existing pes planus during service. In August 2015, VA obtained claims file reviews and addendum opinions from a VA examiner. The VA physician opined that the Veteran's pre-existing pes planus was clearly and unmistakably not aggravated by the Veteran's active duty service. As rationale, she noted that although the Veteran experienced foot problems during service, those problems seemed to resolve quickly after his separation, as indicated by the absence of symptoms during the 1982 VA examination. The examiner noted also that the onset of issues requiring ongoing treatment were first documented in May 1997, at which time it was reported that the Veteran had been having pain in his feet for the past two months. Overall, the examiner states, the Veteran's own subjective statement that he had experienced resolution of his symptoms within one year from separation from service and the onset of chronic symptoms in 1997 is inconsistent with the idea that the Veteran's pes planus was aggravated beyond its natural progression during service. In a separate addendum opinion, the VA physician added that it is less likely than not that the foot disorders diagnosed during the July 2015 VA examination were incurred during service or caused by an in-service injury, event, or illness. As rationale, the reviewing physician notes that there is no evidence that any of those disorders were diagnosed during service. Moreover, the treatment records document a clinical resolution of the Veteran's in-service complaints upon separation from service. Overall, the examiner concluded, the evidence showed that the Veteran's disorders had their onset in 1997. In an October 2017 report, Dr. J.M.D. notes that the Veteran's pes planus was asymptomatic at the time that he enlisted into service, and that the condition became symptomatic during his active duty service due to long periods of standing, running, and carrying. Regarding current symptoms, the Veteran reported medial-sided foot pain that was worse on the left than on the right. A physical examination conducted by Dr. J.M.D. revealed bilateral pes planus that was worse on the right than on the left. The Veteran's arches were completely collapsed with the navicular nerves lying on the floor. Dr. J.M.D. concluded that the findings were consistent with severe planovalgus deformity. Based on the absence of complaints or problems at the time of enlistment and in the absence of a waiver at the time of induction, Dr. J.M.D. opined that it is safe to say that the Veteran's deformity was mild at the time of enlistment, however, progressed to being moderate in severity at the time of his separation. He suggests that the Veteran's pes planus progressed beyond its natural progression during service. Dr. J.M.D. appears to acknowledge that forming an opinion as to the progression and etiology of the Veteran's pes planus is difficult because asymptomatic pes planus does not progress whereas symptomatic pes planus does sometimes progress but not always. He states also that it is difficult to do imaging studies to illustrate deformity and its progression, and as such, one cannot discuss overall how the deformity progresses. He states with certainty, however, that the navicular does gradually go over until it falls on the floor in the most severe form. Observing that the list of conditions on appeal includes metatarsalgic gout, heel spurs, hallux valgus, and nerve entrapment with arch pain, Dr. J.M.D. opined that the only condition from that list that would be brought on by pes planus would be nerve entrapment with arch pain in both feet. He states that occurs because of the navicular progressing down toward the floor until the medial plantar nerve comes into contact with the sole of the shoe. Hence, he appears to conclude that the nerve entrapment and resulting arch pain in the Veteran's feet are likely secondary to his pes planus. After considering the two contrary opinions, the Board concludes that after resolving reasonable doubt in favor of the Veteran, the evidence reflects that the Veteran's pre-existing pes planus increased in severity during service, and there is not clear and unmistakable evidence that the increase was due to the natural progress of the disease. In that regard, the VA examiners appear to place particular emphasis on the fact that the Veteran denied having any symptoms at the time of his post-service 1982 VA examination. However, they did not specifically comment on the physical findings over the course of the Veteran's service and during the 1981 examination, including "grade III" condition and mild to moderate flattening of the longitudinal arches with medial bulging on the 1982 VA examination. As evidenced by the service treatment records, and pointed out by Dr. J.M.D. in his private opinion, the Veteran's pes planus was asymptomatic at the time of his enlistment but became symptomatic during service in 1981. It was at that time that the Veteran's pes planus was described for the first time as being "grade III" in severity. Given the evidence that the Veteran had apparently moderate physical findings in his feet during and shortly after service, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-existing pes planus underwent an increase in severity during service. Coupled with the foregoing, the Veteran has asserted that he has had essentially chronic symptoms in his feet since his active duty service. Such assertions are contradicted somewhat by his statement during the 1982 VA examination that he had not been having any complaints relative to his feet since his separation from service eight months earlier. Nonetheless, given credible statements in the record from the Veteran's significant other that the Veteran had observable foot problems since at least 1984 and the aforementioned physical findings noted in the service treatment records and the 1982 VA examination, the evidence seems to suggest that it is likely that the Veteran has had chronic foot problems that date essentially back to his period of service. As the etiology opinion given by Dr. J.M.D. is supported by well-reasoned rationale that is consistent with the evidence in the record, the Board is persuaded by the opinion. Overall, the evidence shows that the Veteran had pre-existing pes planus that was aggravated beyond its natural progression during his active duty service. Clear and unmistakable evidence to rebut the presumption of aggravation has not been shown. The evidence shows also that the Veteran has current navicular nerve entrapment that has resulted from his pes planus. See November 2017 Dr. J.M.D. opinion. Accordingly, the Veteran is entitled to service connection for bilateral pes planus and bilateral navicular nerve entrapment with arch pain. To this extent, this appeal is granted. ORDER Service connection for pes planus is granted. Service connection for nerve entrapment with arch pain, bilateral lower extremities, is granted. REMAND In the November 2017 opinion, Dr. J.M.D. stated that nerve entrapment would be the only condition brought on by the Veteran's now service-connected bilateral pes planus. However, an opinion as to whether the Veteran's service-connected disability aggravated his other claimed foot disorders is not of record. Accordingly, such should be addressed on remand. Accordingly, the matter is remanded for the following action. 1. Schedule the Veteran for a VA examination to ascertain whether it is at least as likely as not that his service-connected bilateral pes planus with nerve entrapment with arch pain (a) caused or (b) permanently aggravated his current conditions of gout, metatarsalgia due to gout, heel spurs, and hallux valgus. Please explain why or why not. If the examiner finds that any disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. 2. Thereafter, if any of the issues on appeal remain denied, issue a supplemental statement of the case and return the matters to the Board, if in order. 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). (CONTINUED ON NEXT PAGE) These claims 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