Citation Nr: 18159891 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 15-07 631 DATE: December 21, 2018 ORDER Service connection for bilateral pes planus is denied. REMANDED Entitlement to service connection for radiculopathy of the left upper extremity, claimed as secondary to service-connected right shoulder disorder, is remanded. Entitlement to service connection for a right foot disorder, to include sinus tarsi syndrome and arthritis, is remanded. FINDINGS OF FACT 1. On the Veteran’s July 1972 enlistment examination, bilateral pes planus was noted. 2. The Veteran’s preexisting bilateral pes planus did not increase in severity during his first period of active duty. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus are not met. 38 U.S.C. §§ 1111, 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1972 to July 1975. He also had a second period of active duty from February 1989 to October 1990; however, in an Administrative Decision dated in June 2010, it was determined that his discharge in October 1990 was not under conditions other than dishonorable, and was therefore a bar to VA benefits for that period of service. 38 C.F.R. § 3.12. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2012 and May 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his March 2015 and August 2016 substantive appeals, the Veteran requested a Board hearing before a Veterans Law Judge. He was notified in June and July 2018 letters that his requested hearing was scheduled for August 2018. However, he did not appear for the hearing. Neither he nor his representative has requested the hearing be rescheduled, nor have they offered good cause for the Veteran’s failure to attend. Therefore, the Veteran’s Board hearing request is considered withdrawn. 38 C.F.R. §§ 20.702(d), 20.704(d). The Board observes that a June 2018 rating decision, as relevant, reduced the Veteran’s rating for his right shoulder disability from 40 percent to 30 percent, effective May 26, 2018. Thereafter, the Veteran entered a notice of disagreement in July 2018. Although a statement of the case has not yet been issued, according to the Veterans Appeal Control and Locator System (VACOLS), the claim is still being developed by the Agency of Original Jurisdiction (AOJ). As such, the Board declines jurisdiction over this issue until such time as an appeal to the Board is perfected. The Board further observes that, subsequent to the issuance of the July 2016 and August 2017 supplemental statements of the case, additional evidence, to include updated VA and private treatment records, and subsequent VA examination reports, was associated with the file. As such are irrelevant to the issue of entitlement to service connection for bilateral pes planus, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. Furthermore, to the extent such records address the etiology of the Veteran’s sinus tarsi syndrome and left upper extremity radiculopathy, the Board is herein remanding such claims. Consequently, the AOJ will have an opportunity to review the newly received evidence so that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. 1. Entitlement to service connection for bilateral pes planus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). When an issue is raised as to whether the disorder claimed by the veteran pre-existed service, the governing law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). This statutory provision is referred to as the “presumption of soundness.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected” (citing Bagby, 1 Vet. App. At 227). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304 (b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby, 1 Vet. App. at 227; see also 38 C.F.R. § 3.304(b) (“[o]nly such conditions as are recorded in examination reports are considered as noted.”). As noted, this presumption is only rebutted where the evidence clearly and unmistakably shows that the Veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn, 25 Vet. App. at 234. 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 specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id.; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In March and July 2015 written correspondences, the Veteran reported that he entered service with bilateral pes planus and he believed that his time in service aggravated such disorder, to include as a result of an August 1974 fracture to the right ankle. He further reported that he was currently prescribed inserts for his shoes; and that he had experienced constant pain in his feet. Therefore, the Veteran contended that service connection for bilateral pes planus was warranted. The Veteran’s service treatment records (STRs) reflect that, on his July 1972 enlistment examination, clinical evaluation of his feet was abnormal. Here, the examiner indicated that the Veteran had pes planus. Additionally, he was assigned a “1” rating for his lower extremities under the PULHES profile system, indicating his lower extremities were in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran’s capacity and stamina (“P”); upper extremities (“U”); lower extremities (“L”); hearing (“H”); eyes (“E”); and psychiatric condition (“S”); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). On the concurrent medical history report, the Veteran indicated that he never had experienced, or was currently experiencing, foot trouble. A September 1973 STR reveals that he complained of pain in his feet while running. Flat feet were noted and arch supports were prescribed. Additional records dated in September 1973 and August 1974 reflect injuries to the right foot and/or ankle, but there was no mention of pes planus. On the Veteran’s April 1975 separation examination, clinical evaluation of his feet was normal and, on the concurrent medical history report, the Veteran reported foot trouble. Here, the examiner noted that the Veteran had a fractured right foot that healed. Furthermore, he was assigned a “1” rating assessing his lower extremities under the PULHES profile system. Id. Post-service private and VA treatment records show an assessment of right foot pain and pes planus in December 2014, with subsequent records reflecting the diagnosis of pes planus. The Veteran underwent a VA examination in May 2015 so as to determine the nature and etiology of his claimed bilateral pes planus. At this time, he reported that his current treatment included orthotics and physical examination revealed bilateral pes planus. The examiner found that the Veteran’s bilateral pes planus was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, he reported that bilateral pes planus was not caused by trauma. Furthermore, in a May 2016 addendum, the examiner opined that the Veteran’s preexisting bilateral pes planus was not aggravated beyond its natural progression by an in-service event, injury, or illness. As rationale for the opinion, he reported that the Veteran had not established a chronic foot disorder resulting from the symptomatic foot disorder during his active duty from 1972-1975. The examiner further noted that the Veteran’s bilateral pes planus was not aggravated since he did not complain of foot pain for several years following his active duty. As stated previously, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for active military service, except as to defects, infirmities, or disorder noted at the time of the examination, acceptance and enrollment. 38 U.S.C. § 1111. The term “noted” denotes only such disorder that are recorded in examination reports. The presumption of soundness attaches only where there has been an induction examination during which the disorder about which the veteran later complains was not detected. See Bagby, supra. In the instant case, as the Veteran’s bilateral pes planus was noted on his July 1972 enlistment examination, he is not entitled to the presumption of soundness. Consequently, the remaining inquiry is whether such increased in severity during service so as to trigger the presumption of aggravation. In this regard, the May 2015/2016 VA examiner opined that the Veteran’s preexisting bilateral pes planus was not aggravated by service. Furthermore, the contemporaneous evidence of record supports such opinion. Specifically, on the Veteran’s July 1972 enlistment examination and April 1975 separation examination, he was assigned in assigned a “1” rating for his lower extremities under the PULHES profile system. Moreover, to the extent that the Veteran complained of foot pain related to pes planus on a single occasion in September 1973, such does not show an increase in the underlying severity of such disability. In this regard, a temporary worsening of symptoms is not tantamount to aggravation. Additionally, the record is void of documentation of any foot disorder until December 2014, some thirty-nine years after the Veteran’s separation from his first period of service. In this regard, while the Veteran sought treatment for complaints referable to his right shoulder, right elbow, neck, back, knees, and hips over the years, it would be reasonable to assume that he would likewise report complaints referable to his flat feet as well. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). Therefore, the Board places great probative weight on the May 2015/2016 VA examiner’s opinion as such opinion was predicated on a full review of the record, to include the Veteran’s statements, his service treatment records, and post-service records. Moreover, the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran; provided a complete rationale, relying on and citing to the records reviewed; and the examiner offered clear conclusions with supporting data, as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). There is no medical opinion specific to the Veteran to the contrary. In reaching this decision, the Board has considered the Veteran’s arguments in support of his claim. The Board acknowledges that he is competent, as a layperson, to attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Additionally, lay assertions may serve to support a claim for service connection by demonstrating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, although the Veteran is competent to report bilateral foot pain prior to, during, and since service, the Board finds that he is not competent to offer an opinion as to whether his bilateral pes planus was aggravated during service since he does not possess the requisite medical knowledge to offer such an opinion. Specifically, the determination that pes planus has worsened beyond the natural progression as a result of any instance of the Veteran’s military service involves knowledge of the impact of such activities on the arch, an internal structure, of the foot. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to whether his bilateral pes planus was aggravated as a result of his military service and, therefore, his opinion is nonprobative. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Based on the foregoing, the Board finds that the Veteran’s preexisting bilateral pes planus did not increase in severity during his first period of active duty. Consequently, service connection is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for bilateral pes planus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for radiculopathy of the left upper extremity, claimed as secondary to service-connected right shoulder disability. As an initial matter, the Board notes that the evidence does not show, and the Veteran does not contend, that his radiculopathy of the left upper extremity had its onset during service, or is directly related to any aspect of his military service. Rather, he claims that such disorder is caused or aggravated by his service-connected right shoulder disability. Here, he reported that the position in which he slept due to his right shoulder disability resulted in his arms and neck falling asleep (a pinched nerve). Therefore, he claims that service connection for radiculopathy of the left upper extremity is warranted. In this regard, the Veteran underwent a VA examination in October 2004 in regard to a claim for service connection for a cervical spine disorder. At such time, the examiner indicated an assessment of degenerative disc disease of the cervical spine with left upper extremity radiculopathy. As relevant, he opined that the Veteran’s cervical spine showed no nexus or connection to his right shoulder condition, as such was more likely than not related to a December 1992 motor vehicle accident. However, such opinion does not address whether the Veteran’s right shoulder disorder aggravated his radiculopathy of the left upper extremity. Subsequently, a VA medical opinion was obtained in January 2012. At such time, the examiner opined that the Veteran’s radiculopathy of the left upper extremity was less likely than not proximately due to or the result of his service-connected right shoulder disability. As rationale for the opinion, the examiner simply reported that there was no basis in medical fact to assert that any neck/cervical spine disorder with left-sided radiculopathy was related to or aggravated by his service-connected right shoulder disability. However, even when read “as a whole,” the January 2012 VA examiner’s rationale does not contain an analysis that the Board can consider and appropriately weigh. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Furthermore, in support of his claim, the Veteran submitted a November 2012 private treatment record in which Dr. L.J. indicated that, because of his chronic right shoulder subluxation for over forty years, the left side of his neck was aggravated when he slept on his right side. In this regard, it was noted that Veteran was having muscle spasms in his left neck. However, the Board cannot rely on Dr. L.J.’s opinion to grant service connection for the Veteran’s radiculopathy of the left upper extremity as she did not provide a complete rationale for her opinion, and such does not appear to distinguish exacerbations of symptoms versus aggravation. Therefore, based on the foregoing, the Board finds that a remand is necessary in order to obtain an addendum opinion that adequately addresses the relationship between the Veteran’s radiculopathy of the left upper extremity and his service-connected right shoulder disability. 3. Entitlement to service connection for a right foot disorder, to include sinus tarsi syndrome and arthritis. The Veteran contends that his current right foot disorder, diagnosed as sinus tarsi syndrome and arthritis, is directly related to his military service. Specifically, he reported that he broke a small bone on the top of his right foot in approximately August 1974 and, since such injury, he has had pain in the right foot. Therefore, he claims that service connection for a right foot disorder is warranted. The Veteran’s service treatment records indicate that, in September 1973, he injured his right foot after jumping out of a vehicle. Such record further notes an impression of sprain, rule out fracture, and he was provided with a bandage for his right foot and ankle. In August 1974, it was noted that the Veteran injured his right ankle and foot while playing football. An impression of possible tear of lateral collateral ligaments was rendered, and the Veteran received a short leg cast. X-rays performed in September 1974 showed a nondisplaced fracture of the navicular with questionable slight fracture of the talus (possibly old). An October 1974 record reflects a notation that the bone chip at the neck of the navicular appears to have reunited per X-ray. Nonetheless, the Veteran was assigned a T-3 profile due to injury to his right ankle and foot dorsally. In April 1975, a prior inversion injury to the right ankle in August 1974 was noted, and the Veteran’s complaints of pain and swelling near the lateral malleolus, although range of motion was normal, was recorded. X-rays of the right ankle showed one or two bony fragments posterior to the malleolus, which was compatible with an old fracture and/or lateral avulsion at the sight. No degenerative changes were noted. The impression was mild sprain. On the Veteran’s April 1975 separation examination, clinical evaluation of his feet was normal and, on the concurrent medical history report, the Veteran reported foot trouble. Here, the examiner noted that the Veteran had a fractured right foot that healed. The Veteran was afforded a VA examination in May 2015, with addendum opinions rendered in May 2016 and July 2016, to assess the etiology of his claimed right foot disorder. In May 2015, the examiner noted a diagnosis of right sinus tarsalgia, but opined that it was not caused by service as such disorder, outside the realm of peroneal tendon dysfunction, was not caused by trauma, and the remote history of the Veteran’s right foot fracture and its relationship to his current sinus tarsi syndrome was not clear, as such injury was in 1974 and treatment for his sinus tarsi syndrome was not until 2014. The examiner further opined in May 2016 that it was less likely than not that the Veteran’s right foot disorder was incurred in or caused by the claimed in-service injury, event, or illness. In this regard, he reported that the Veteran’s current foot symptoms were not related to the foot pain or remote fracture of his fourth metatarsal in service. Rather, the examiner found that Veteran’s symptoms were related to his current arthritic disorder, which was not traumatic in nature. Further, he determined that such current arthritic disorder was more likely related to the Veteran’s age than his history of metatarsal fracture, and his right foot sinus tarsi syndrome may be more related to his change in gait secondary to lumbar radiculopathy, although he could not say for sure without resorting to mere speculation. In July 2016, the examiner opined that the Veteran’s right disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, he reported that the Veteran had degenerative arthritis in his feet, which was not related to the navicular fracture that occurred in 1974, and his current foot symptoms were related to his sinus tarsi and degenerative changes, both of which had no relation to the nondisplaced fracture of his navicular bone in 1974. However, while the VA examiner adequately discussed why the Veteran’s right foot disorder was not specifically related to his in-service right foot fracture in 1974, he simply stated that such was not related to his foot pain in service without providing further detail. Here, it is unclear whether the examiner considered all of the instances of the Veteran’s reported in-service foot injuries that occurred in September 1973 (when the Veteran injured his right foot after jumping out of a vehicle ) and August 1974 (when the Veteran injured his right foot while playing football). Therefore, a remand is necessary in order to obtain an addendum opinion addressing such matters. The matters are REMANDED for the following action: 1. Return the record to the VA examiner who offered the January 2012 opinion concerning the etiology of the Veteran’s radiculopathy of the left upper extremity. The record and a copy of this Remand must be made available to the examiner. If the January 2012 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion as to the following inquiry: Is it at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s radiculopathy of the left upper extremity is caused or aggravated by his service-connected right shoulder disorder? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. The examiner is notified that findings of “not due to,” “not caused by,” and “not related to” are insufficient to address the question of aggravation. In rendering such opinion, the examiner should consider the Veteran’s lay statements and the November 2012 private treatment record from Dr. L.J. suggesting a relationship between the Veteran’s radiculopathy of the left upper extremity and his service-connected right shoulder disability (i.e., because of his chronic right shoulder subluxation for over forty years, the left side of the Veteran’s neck was aggravated when he slept on his right side, and he had muscle spasms in his left neck). A rationale for any opinion offered should be provided. 2. Return the record to the VA examiner who offered the July 2016 opinion concerning the etiology of the Veteran’s right foot disorder. The record and a copy of this Remand must be made available to the examiner. If the July 2016 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion as to the following inquiry: Is it at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s right foot disorders, diagnosed as sinus tarsi syndrome and arthritis, are related to his first period of active duty, to include the injuries that occurred in September 1973 (when the Veteran injured his right foot after jumping out of a vehicle ) and August 1974 (when the Veteran injured his right foot while playing football)? A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel