Citation Nr: 18157990 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 17-00 013A DATE: December 14, 2018 REMANDED Entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The appellant served on active duty in the U.S. Marine Corps from February 1992 to November 1998. He is the recipient of the Navy Achievement Medal and the Meritorious Mast on three occasions. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which, inter alia, denied service connection for bilateral hallux valgus and degenerative changes of the first metatarsophalangeal (MTP) joints with bilateral flatfoot, or pes planus. The appellant filed a timely Notice of Disagreement (NOD), received in April 2015. A Statement of the Case (SOC) was issued in November 2016. A timely substantive appeal was received in January 2017. Before the appeal was certified to the Board, in a March 2017 rating decision, the RO granted service connection for right and left hallux valgus with first MTP joint degenerative joint disease and assigned initial noncompensable ratings, effective November 29, 2012. This constitutes a full award of the benefit sought on appeal with respect to claim of service connection for bilateral hallux valgus and MTP joint degenerative joint disease. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Absent any indication of a notice of disagreement with the initial ratings or effective dates assigned, those issues are not before the Board. The appellant’s claim of service connection for bilateral flatfoot, or pes planus, continued. Thus, a Supplemental Statement of the Case (SSOC) was issued in March 2017. The appellant was afforded a hearing before the undersigned by videoconference in July 2017. A transcript is of record. The Board notes that three SOC’s were issued in March 2018. The first addressed the issues of service connection for left knee patellofemoral syndrome and migraines, to include as secondary to service-connected hypertension. The second addressed service connection for posttraumatic stress disorder (PTSD) with depression, anxiety, and sleep disorder. The third addressed service connection for erectile dysfunction, to include as secondary to service-connected hypertension. A substantive appeal was received in April 2018, upon which the appellant expressed his desire to appeal all of the issues listed on the SOC’s. He also requested that he be afforded a hearing by videoconference before a Veterans Law Judge in connection with the claims. Thus, these issues have not been certified to the Board and the Board will not adjudicate these issues until he has been afforded his requested hearing. The appellant’s January 1992 enlistment examination report indicates that mild pes planus was observed on entry. Notably, however, the appellant denied foot trouble on his January 1992 and March 1998 Reports of Medical History; and his feet were noted to be normal on the March 1998 Report of Medical Examination. Where, as here, a disability is noted upon entry into service, a claimant cannot bring a claim for service connection for that disorder, but may bring a claim for service-connected aggravation of that disorder. In such cases, the burden falls on the veteran to establish aggravation under 38 U.S.C. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The appellant was afforded a VA examination in December 2013. He was diagnosed with mild bilateral flat foot and mild bilateral hallux valgus with first MTP joint degenerative joint disease. The VA examiner opined in August 2014 that it was less likely than not that flat foot or hallux valgus with first MTP joint degenerative joint disease were related to the appellant’s active service because, while pes planus can sometimes contribute to hallux valgus, there was documentation of mild pes planus upon entry, but no documentation of any worsening, or any other foot complaints in service. An addendum opinion from this examiner was obtained in February 2017. The examiner opined that it was at least as likely as not that the appellant’s bilateral first MTP degenerative joint disease and hallux valgus were caused by the appellant’s in-service playing of basketball and football. It was noted that playing basketball and football, particularly at aggressive professional levels, can cause multiple types of foot injuries such as turf toe. The appellant had multiple documented ankle injuries, the forces of which are often transmitted into the foot. The appellant also had multiple degenerative changes in his feet documented on X-ray at a relatively young age. During the appellant’s July 2017 video hearing, he testified that his military occupational specialty (MOS) was supply, but he performed physical training, participated in road marches, and ran in combat boots. He carried heavy packs, and even had to carry two 90-pound packs at once on occasion. It was noted that the appellant was an athlete while on active duty; and he testified that he noted a deterioration in his skills. Following separation, he had to change his physical activities due to foot pain, so he began swimming and biking rather than play basketball and football. He reported that, following physical activity in service, he noted pain and swelling of the feet. He noted pain would go form his big toe to the bottom of his feet and radiate throughout his whole foot. A July 2017 statement from S.P., a nurse practitioner, was submitted by the appellant. S.P. stated that the appellant began experiencing foot pain in April 1992. His symptoms were aggravated by running, jumping/landing, ruck marching with heavy gear, and wearing military boots. It was noted that the appellant separated from the Marine Corps in November 1998. His foot pain had been increasing. April 2017 imaging studies revealed dorsal prominence of the left medial cuneiform, which was probably the result of injury. Based at least in part on the February 2017 positive medical opinion, the RO granted service connection for bilateral first MTP degenerative joint disease and hallux valgus, as discussed supra. The Board observes that the negative August 2014 opinion regarding pes planus was based, in part, upon the inaccurate factual premise that there was no documentation of any foot complaints or worsening of pes planus in service. However, the February 2017 opinion explains that ankle injuries often affect the feet. Thus, the Board finds that the appellant should be afforded a new examination to determine whether his pes planus was aggravated by his active service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner should also distinguish, to the extent possible, which foot symptoms are attributable to his service-connected bilateral hallux valgus with first MTP degenerative joint disease and which are attributable to his bilateral pes planus. The matter is REMANDED for the following action: Afford the appellant a VA medical examination to determine the nature and etiology of his bilateral pes planus. The claims file must be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder as well as his reported medical history, the examiner should identify all foot pathology identified on examination. He or she should also provide an opinion, with supporting rationale, as to whether it is at least as likely as not that the pre-existing mild pes planus noted at service entry underwent an increase in disability during active service and, if so, whether such increase due to the natural progress of the disease. The examiner should also distinguish which of the appellant’s foot symptoms are attributable to his (a) service-connected bilateral hallux valgus with first MTP degenerative joint disease and (b) bilateral pes planus. The examiner is advised that the appellant is competent to report symptomatology. The attention of the examiner is directed to (a) the December 2013 VA examination report with August 2014 and February 2017 addendums; (b) the appellant’s July 2017 hearing testimony; (c) the nurse practitioner S.P.’s July 2017 report; and (d) the appellant’s service treatment records. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel