Citation Nr: 21000194 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-17 033A DATE: January 4, 2021 REMANDED Entitlement to service connection for pes planus, claimed as a bilateral foot condition, is remanded. Entitlement to service connection for a low back condition to include as secondary to pes planus, is remanded. Entitlement to service connection for a buttocks and left leg condition to include as secondary to a low back condition is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1992 to March 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs Regional Office (RO). The Veteran testified before the undersigned during a hearing in March 2020. The Board notes the RO initially denied the Veteran’s service connection claim for pes planus and an associated low back condition in 1995; however, VA has received relevant official service department records that existed at the time of the prior decision that had not been associated with the claims file when VA first decided the claim. Specifically, the record now includes additional service medical records and military personnel records. Accordingly, the Board will reconsider the Veteran’s claim without the requirement of new and material evidence to reopen the claim. See 38 C.F.R. § 3.156(c). 1. Entitlement to service connection for pes planus, claimed as a bilateral foot condition, is remanded. The Veteran asserts that his bilateral pes planus was aggravated during his time in service. A December 1991 examination report that reflects it was an enlistment examination clinically noted moderate, asymptomatic pes planus. 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 the latter case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish aggravation. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (citing Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994)). If the claimant demonstrates a worsening of his condition in service, the burden then shifts to the government to rebut the presumption of aggravation by clear and unmistakable evidence. Id. Section 1153 provides: “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.” In considering whether to apply the presumption of aggravation, the Board must first determine whether there was an increase in the disability’s severity. 38 C.F.R. § 3.306(a). Until the Veteran shows that an increase in disability occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231 (2011). The Veteran was provided a VA examination in September 2014. The examiner opined that the Veteran’s pes planus was not caused or aggravated by his time in service. The examiner stated that that there was no evidence that the Veteran’s preexisting pes planus was aggravated or worsened beyond its normal progression. The examiner then recited select evidence from the record and again provides the conclusion that the Veteran’s foot condition was not aggravated. However, the examiner did not address all the relevant evidence in the Veteran’s service treatment records (STRs). This includes an April 1993 medical record that shows the Veteran complained about pain in his feet, as well as reports regarding increased pain in his feet that gets worse when standing. A May 1993 medical record characterized the Veteran’s pes planus as “markedly severe,” which suggests a worsening from the time of entrance into service when his pes planus was characterized as moderate and asymptomatic. In addition, a November 1994 physical profile notes the Veteran was ordered to not run, march, or jump due to his chronic foot pain. Based on the foregoing, the Board finds that the September 2014 opinion is inadequate as the examiner did not provide a cogent rationale for the conclusions reached, nor did the examiner address all the relevant evidence in the Veteran’s STRs. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, a remand is necessary in order to obtain an examination (if found necessary) and opinion that addresses the above deficiencies. 2. Entitlement to a low back condition associated with pes planus is remanded. The Veteran asserts that his low back condition is associated with his pes planus. STRs throughout the Veteran’s service show the Veteran complained about back pain in conjunction with his complaints of pes planus symptoms. For instance, the Veteran stated in an April 1993 STR that pain from his pes planus gets worse after standing, which then causes him to have low back pain as well. As such, the issue of service connection for a back disorder is inextricably intertwined with the Veteran’s pes planus claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other) and must be remanded as well. 3. Entitlement to service connection for a buttocks and left leg condition associated with a low back condition is remanded. The Veteran asserts that his low back condition causes him sciatic pain in his buttocks and left leg. This issue is inextricably intertwined with the Veteran’s pes planus and back disability claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other) and must be remanded as well. 4. Entitlement to a TDIU. Regarding the TDIU claim, the Veteran does not currently have any service-connected disabilities. Therefore, the TDIU claim is inextricably intertwined with the other claims being remanded herein and cannot yet be decided. Thus, the issue of TDIU must be deferred pending the development of the above claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) The matters are REMANDED for the following action: 1. Obtain a new opinion (and examination, if found necessary) from an appropriate clinician regarding whether the Veteran’s pes planus at least as likely as not increased in severity in service. The examiner must address the relevant evidence from the Veteran’s service treatment records, including those from April and May 1993 showing reports of an increase in foot pain as well as characterization of the Veteran’s pes planus as “markedly severe,” and a physical profile from November 1994 that notes the Veteran should not march, run or jump due to his chronic foot-related pain. A cogent rationale must be provided for why the symptoms in service either did or did not represent an increase in severity of the condition. If an increase in severity is found, the examiner must then indicate whether the increase clearly and unmistakably represented the natural progress of the condition. A cogent rationale must be provided to support a finding that the increase in severity was clearly and unmistakably due to the natural progress of the condition. 2. If it is determined that the Veteran’s pes planus was aggravated by service and therefore service connected, the examiner must also provide an opinion (and examination if found necessary) whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disorder is caused or aggravated by the pes planus. In responding to this question, the examiner must explicitly address the April 1993 STR which shows the Veteran reported increased foot and back pain when standing for long periods. The secondary service connection opinion must address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to describe the baseline level of severity of the condition prior to aggravation by the service-connected disability. The examination report must include a complete rationale for the opinion provided. 3. If it is determined that the Veteran’s back condition is related on a secondary basis to his pes planus and also service connected, the examiner must also provide an opinion (and examination if found necessary) whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s buttocks and left leg condition (also claimed as sciatica) is caused or aggravated by his back condition. The secondary service connection opinion must address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to describe the baseline level of severity of the condition prior to aggravation by the service-connected disability. The examination report must include a complete rationale for the opinion provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.