Citation Nr: 1806646 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 08-01 006 ) 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 planus. 2. Entitlement to service connection for a bilateral bunion disability. 3. Entitlement to service connection for bilateral epidermophytosis of the toes. 4. Entitlement to service connection for degenerative disc disease of the lumbar spine (lower back disability), to include as secondary to bilateral pes planus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1984 until July 1986. The Veteran has been incarcerated since August 1992, and is currently serving a life sentence. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Board remanded the Veteran's claims for further development. The matters have since been returned to the Board for further appellate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted in the Board's March 2016 remand, the current service treatment records associated with the Veteran's claims folder appear to be incomplete. For example, the Veteran's separation examination is not of record, nor any documentation pertaining to the Veteran's medical discharge. This information is especially relevant as the Veteran has repeatedly asserted that he was discharged for "bad feet." Accordingly, the Board's remand instructed the RO to contact the appropriate service department and/or records custodian(s) with a request for copies of all pertinent service department records pertaining to the Veteran during the period from January 1984 to June 1986, to specifically include records from February 1986 through June 1986. The record shows that the RO submitted a request of the Veteran's complete service medical and personnel records to the National Personnel Records Center (NPRC). See 07/15/2016, Military Personnel Record, at 3. Based on the NPRC's negative response, the RO informed the Veteran that any missing service treatment records were unavailable for review. See 10/19/2016, Notification Letter. The Board finds that the RO's single effort to obtain the Veteran's missing records was insufficient. Significantly, the RO did not contact the appropriate service department or alternate records custodians. On remand, the RO should contact sources beyond the NPRC in a renewed attempt to locate and obtain any outstanding service treatment records. Additionally, pursuant to the Board's March 2016 remand, the Veteran, in March 2017, underwent VA examinations for his claimed disabilities. The VA examination for foot conditions shows, in relevant part, a diagnosis of bilateral pes planus. The Veteran's pes planus was noted in his enlistment examination, and he is not entitled to the presumption of soundness with regard to this disability. Consequently, in this case, the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In such claims, a veteran (the evidence of record) must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The March 2017 VA examiner opined that the Veteran's pes planus was less likely than not aggravated by his military experience. The examiner's sole rationale was that the Veteran's service treatment records were silent for foot problems. The opinion does not show adequate consideration of the relevant evidence. Indeed, the Veteran has stated that he developed foot pain in service and his service treatment records reflect that he was treated for callouses on all toes. The examiner's assertion that the service treatment records are silent for foot problems is clearly contradicted by the evidence. For these reasons, an adequate opinion is not of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). On remand, the VA examiner should provide an opinion as to whether the Veteran's preexisting pes planus was aggravated in service. The VA examiner should also discuss whether the Veteran's pes planus has been aggravated by a service-connected disability. The Veteran is currently is service-connected for a right knee injury and bilateral hammertoes. The VA examination for skin diseases shows a diagnosis of tinea pedis. The examiner noted the Veteran's report of symptoms and treatment in service, to include recurrent symptoms since service. The March 2017 VA examiner opined that the Veteran's tinea pedis is less likely than not related to service. The examiner's sole rationale was that the Veteran's service treatment records are silent for treatment of foot fungus. The opinion does not show adequate consideration of the relevant evidence. As already noted, the Veteran's service treatment records reflect that he was treated for callouses on all toes; this finding is potentially relevant to the foot fungus claim. Moreover, the Veteran has reported recurrent symptoms since service. For these reasons, an adequate opinion is not of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). On remand, the VA examiner should also consider whether the Veteran's tinea pedis was caused or has been aggravated by his service-connected hammertoes. The VA examination for the lumbar spine shows a diagnosis of lumbosacral strain with degenerative joint disease. The March 2017 VA examiner opined that the Veteran's lower back disability is less likely than not related to service. The VA examiner noted that service treatment records show treatment for a single acute lumbar strain in October 1985. The VA examiner further indicated that such an injury is a muscle sprain that resolves with rest and analgesic, and does not cause degenerative joint disease of the lumbar spine, which is due to the aging process. The March 2017 VA examiner further opined that the Veteran's lower back disability was less likely than not caused or aggravated by the Veteran's pes planus. In this regard, the examiner indicated that the Veteran had minimal pes planus and that his degenerative joint disease of the lumbar spine was due to the aging process. The Board finds that the March 2017 VA opinion is inadequate with regard to the aggravation prong of secondary service connection. The examiner's rationale that the Veteran's has minimal pes planus and that his degenerative joint disease of the lumbar spine was due to the aging process does not sufficiently explain the examiner's conclusion that the claimed lower back disability has not been aggravated by the Veteran's claimed pes planus. Indeed, arthritis could potentially have onset earlier than would have occurred but for the pes planus. For this reason, an adequate opinion is not of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). On remand, the VA examiner should also consider whether the Veteran's lumbar spine disability has been aggravated by a service-connected disability. The Veteran is currently service-connected for a right knee injury and bilateral hammertoes. With regard to the issue of service connection for a bilateral bunion disability, the March 2017 VA examination shows a no current bunion disability. The examiner further indicated that the Veteran's service treatment records were silent for any bunion disability. As already discussed, the Board is remanding to obtain outstanding service treatment records. Consequently, insofar as the examiner's conclusion appears to be partially based on a review of the Veteran's service treatment records, the Board finds that the appropriate course of action is to defer adjudication of the issue of service connection for a bilateral bunion disability until after the requested development has been completed. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate service department and/or records custodian(s) with a request for copies of all pertinent service department records pertaining to the Veteran during the period from January 1984 to June 1986, to specifically include records from February 1986 through June 1986. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completing step #1, forward the claims file, including a copy of this remand, to the individual who conducted the March 2017 VA examination, or another examiner if that individual is unavailable, to provide an addendum opinion. (A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence.) Review of the claims file should be noted in the examiner's report. The examiner should respond to the following: For pes planus (a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's bilateral pes planus, which preexisted service, was aggravated (made worse beyond its natural progression) during service? Please consider and discuss the Veteran's history of foot symptoms in service. The Veteran has stated that he developed foot pain in service and his service treatment records reflect was treated for callouses on all toes. (b) If aggravation is found, is there clear and unmistakable evidence that the preexisting pes planus was NOT aggravated beyond its natural progression by active service? (c) In the alternative, is it at least as likely as not that the Veteran's bilateral pes planus has been aggravated (made permanently worse beyond the natural progression of the disease) by a service-connected disability? The Veteran is currently service-connected for a right knee injury and bilateral hammertoes. For tinea pedis (a) Is the Veteran's tinea pedis at least as likely as not (probability of 50 percent or more) related to an event, disease, or injury in service? Please consider and discuss the Veteran's history of foot and skin symptoms in service. The Veteran has stated that he developed foot pain in service and his service treatment records reflect treatment for callouses on all toes. He has also stated that he has had recurrent skin-related foot symptoms since service. (b) If the answer to (a) is negative, then is it at least as likely as not that the tinea pedis is proximately due to a service-connected disability, in particular, his bilateral hammertoes? If not, then is it at least as likely as not that the tinea pedis has been aggravated (made worse beyond the natural progression of the disease) by a service-connected disability, in particular, his bilateral hammertoes? For the lumbar spine (a) Is it at least as likely as not that the Veteran's lumbar spine disability has been aggravated (made permanently worse beyond the natural progression of the disease) by a service-connected disability? The Veteran is currently service-connected for a right knee injury and bilateral hammertoes. (b) Is it at least as likely as not that the Veteran's lumbar spine disability has been aggravated (made permanently worse beyond the natural progression of the disease) by the Veteran's bilateral pes planus (service connection for which is presently on appeal)? The examiner should provide a comprehensive medical rationale for any opinion offered. In forming an opinion, the examiner should not rely solely on the absence of corroborating evidence (of either treatment or a diagnosis). Rather, the examiner should consider the extent to which there is a medical nexus between any in-service symptoms and a current disability. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. 3. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. (CONTINUED ON NEXT PAGE) 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). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2016). _________________________________________________ Eric S. Leboff 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).