Citation Nr: 20021523 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-42 549 DATE: March 26, 2020 ORDER Entitlement to service connection for a bilateral foot disorder, to include pes planus and plantar fasciitis, is denied. REMANDED Entitlement to service connection for a bilateral tibial disorder, to include posterior tibial dysfunction and tibial tendinitis, is remanded. FINDING OF FACT The evidence clearly and unmistakably shows that the Veteran’s bilateral foot disorder existed prior to her entrance into military service and was not aggravated beyond its normal progression during service. CONCLUSION OF LAW The criteria to entitlement to service connection for a bilateral foot disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from January 1996 to January 2000. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection The Veteran contends that her pre-existing bilateral food disorder was aggravated by her military service. Her claim for compensation was received by VA in June 2017. Generally, to establish service connection 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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A pre-existing disease or injury will be considered to have been aggravated by military 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; 38 C.F.R. § 3.306; Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board acknowledges that a bilateral foot disorder was found at the time of the Veteran’s entrance into service. Her June 1995 service enlistment examination report shows a diagnosis of moderate bilateral pes planus. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). A review of the service treatment records (STRs) note multiple complaints and treatment for bilateral foot issues, including foot pain, cramping, use of orthotics, and being placed on physical profile at several points during service. Based on this evidence, the Board finds that there was an increase in severity in the Veteran’s bilateral foot disorder during service. As such, the presumption of aggravation attaches. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. 38 C.F.R. § 3.306. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). There is no evidence of record indicating that the Veteran continued to experience any problems with her feet from the time of discharge until many years thereafter. The Veteran has not provided any statements regarding continuous symptoms from discharge to the present and there is no other evidence of record documenting such a fact pattern. A review of the Veteran's post service VA treatment records shows that the first complaints of bilateral foot issues was in March 2017, over 17 years after discharge from service. A May 2017 VA treatment record noted continued bilateral foot pain while standing. A diagnosis of bilateral flat foot and plantar fasciitis was found on examination. Subsequent VA treatment records note complaints of bilateral foot pain on increased activity. The Veteran submitted an examination report conducted by VA medical personnel in August 2017. The examiner diagnosed bilateral flat feet, pes planus, and posterior tibial tendon dysfunction. The examiner also noted the Veteran’s painful gait and foot pain when standing. Clinical examination revealed bilateral pain accentuated on manipulation of the Veteran’s feet and indication of bilateral swelling on use. The examiner noted the Veteran's use of bilateral arch supports and orthotics. Clinical examination revealed extreme tenderness of bilateral plantar surfaces, objective evidence of marked deformity of both feet, marked bilateral pronation, inward bowing, marked displacement and severe spasm of the Achilles tendon. Bilateral pain on movement and weight bearing, excess fatigability, swelling, deformity, disturbance of locomotion, and interference with standing. The examiner noted weakness of bilateral tibial tendon with pain and flare ups. The examiner also noted the Veteran’s regular use of braces. The examiner found that the Veteran’s bilateral foot disorder impacted her ability to work, in that she had difficulty walking, standing, and lifting and was unable to perform her work due to her bilateral foot condition. However, no nexus opinion was rendered by the examiner. The Veteran underwent a VA examination in October 2017. The examiner diagnosed bilateral pes planus and plantar fasciitis. The examiner also noted the Veteran’s bilateral flat foot diagnosis rendered on her entrance examination, with her complaints and treatment for bilateral foot issues during service, but denied any trauma to her feet. The Veteran reported undergoing bilateral foot treatment in 2001 and physical therapy and steroid injections in 2016. She endorsed bilateral foot pain all day with the left worse than the right and worse in the mornings. Clinical examination revealed bilateral foot pain accentuated on manipulation, decreased longitudinal arch height of both feet, objective evidence of bilateral marked deformity, bilateral marked pronation that was improved by orthopedic shoes or appliances. The Veteran endorsed bilateral pain on weight-bearing and lack of endurance. However, the examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when the feet were used repeatedly over a period of time. The examiner noted the Veteran’s occasional use of a left foot brace for long distance walking. The examiner also noted the Veteran’s employment as a surgical technician working 10 hour shifts and that her bilateral foot disorder impacted her work by requiring her to frequently use a stool due to bilateral foot pain. The examiner then gave a negative opinion indicating that the Veteran’s bilateral foot disorder was not aggravated beyond its normal progression by her military service. The examiner noted that the Veteran had pes planus when she entered the service which was diagnosed as moderate, but no evidence was found in her service medical notes that her pes planus became more severe. The examiner also noted that the Veteran was diagnosed with plantar fasciitis while in the service, which is a separate condition from pes planus and can occur in people with or without pes planus and in most cases resolves. The examiner did not find any evidence that the Veteran was seen for plantar fasciitis until March 2017, over 18 years later. The examiner also noted that the Veteran’s post service VA treatment records in 2007, 2008, and 2014 contained no mention of foot pain or plantar fasciitis. The examiner found that the medical evidence showed that the Veteran started being seen and treated for plantar fasciitis in 2017. Therefore, there was no evidence of chronicity relating the Veteran’s current symptoms to her service and it is likely that the bilateral foot condition resolved then recurred recently due to her being on her feet for long hours at work. The Board finds the VA opinion to be competent, credible, and probative. The examiner provided detailed rationale that took into consideration the Veteran’s lay statements and history, a clinical examination of the Veteran, and the evidence of record, and provided a clear explanation that contained a clear conclusion and supporting data. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board finds no adequate basis to reject the competent medical opinion based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). As such, the Board finds that there is clear and unmistakable evidence that the bilateral foot disorder was not aggravated beyond its normal progression due to military service. Thus, the presumption of aggravation has been rebutted and entitlement to service connection must be denied. REASONS FOR REMAND The Veteran contends that she currently has a bilateral tendon disorder resulting from her military service. The August 2017 examination report included a diagnosis of bilateral posterior tibial dysfunction; however, no nexus opinion was rendered by the examiner. A VA medical opinion was issued in December 2017. The VA examiner gave a negative opinion that the bilateral tibial disorder resulted from military service. The examiner found that there was insufficient evidence in the claims file to warrant a diagnosis of bilateral posterior tibial dysfunction. The examiner also noted that the Veteran had a history of tibial tendonitis in March 2017, which was completely different from a bilateral posterior tibial dysfunction. The examiner noted that tibial tendinitis referred to inflammation in the tendon and posterior tibialis tendon dysfunction was a condition where the foot collapses due to a complete or partial tear of the posterior tibialis tendon. The examiner found that while the Veteran was treated for bilateral foot issues, she was not diagnosed with bilateral tibial tendinitis or posterior tibial dysfunction. However, a review of the pertinent evidence of record does shows that the Veteran was treated for and diagnosed with bilateral posterior tibial tendinitis. An opinion based on an inaccurate factual premise is not entitled to any probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination is inadequate based on the examiner’s failure in finding any current diagnosis for bilateral tibial tendonitis. As such, the Board remands this matter for the issuance of a clarifying VA medical opinion. The matter is REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. After the above has been completed to the extent possible, obtain a clarifying VA medical opinion from the examiner who rendered the December 2017 VA examination. The claims file should be made available to the examiner. If the VA examiner is unavailable, then obtain the medical opinion from a medical professional with appropriate expertise. After a review of the record, the examiner is to address the following: Whether it is as least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral tibial tendinitis manifested during service or is otherwise attributable to service? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.