Citation Nr: 21003546 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 18-29 385 DATE: January 21, 2021 REMANDED Entitlement to service connection for pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2005 to September 2015. In a June 2019 decision, the Board denied the Veteran’s claim for service connection, and he appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court vacated the June 2019 decision, and remanded the appeal for further development consistent with the Memorandum Decision. 1. Entitlement to service connection for pes planus is remanded. The Veteran currently seeks entitlement to service connection for pes planus. Although this disability preexisted his military service, the Veteran contends that the physical requirements of active duty aggravated his condition beyond its normal progression. See May 2016 Notice of Disagreement. He alleges that VA did not take into account the rigors of running, hiking (ruck marching), jumping and landing (Air Assault Training), the wearing of military-issued boots, and the many other tasks included in military service that aggravated his pes planus beyond its natural progression. See May 2018 VA Form 9. In the June 2020 Memorandum Decision, the Court determined that the Board’s June 2019 decision was deficient because it was unclear whether the Board determined that there was a worsening of the Veteran’s pes planus during service; because the Board failed to provided adequate reasons and bases for rejecting the Veteran’s reports of worsening symptomatology during service; and because the Board failed to provide adequate reasons and bases for relying on the November 2015 and March 2018 VA medical opinions. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 1132 (2018); 38 C.F.R. § 3.304 (b) (2020). When determining whether a defect, infirmity, or disorder is “noted” at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153 (2018); 38 C.F.R. § 3.306 (2020). 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. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. For a disorder to be considered aggravated in service, there must be worsening of the underlying condition, not just temporary or intermittent flare-ups of the symptoms of the condition. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence of a 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). In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the mere 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); 38 C.F.R. § 3.306(a). The Veteran’s April 2005 entrance examination noted the presence of mild asymptomatic pes planus. Subsequent service treatment records note the Veteran’s report of increased bilateral foot pain. For example, a February 2015 service treatment record noted the Veteran’s report of bilateral foot pain that he rated as an eight out of ten. In addition to bilateral bunions, the treatment provider noted the Veteran’s diagnosis of flat feet and that he needed custom molded orthotics, functional type, to use with his Army boots. The Veteran’s June 2015 report of medical history noted his report of foot trouble, and the treatment provider noted his diagnosis of flat feet and that he was issued inserts and braces at Fort Campbell. In connection with his claim, the Veteran underwent a VA examination in November 2015, and the examiner noted his diagnosis of bilateral pes planus. The Veteran then reported that he started to experience foot pain in 2011 that would recede and reappear with prolonged walking and standing. He stated that, in 2014 he could no longer tolerate his symptoms, and he was referred to a podiatrist that provided him with inserts for his flat feet. The examiner noted that the Veteran’s symptoms included pain accentuated on use and pain accentuated on manipulation; that his symptoms were not relieved by arch supports; and that there was a decreased longitudinal arch on weight-bearing. In a March 2016 opinion, a VA opinion provider concluded that the Veteran’s pes planus was not aggravated by his military service. Although the opinion provider noted that his conclusion was based on the November 2015 VA examination, no further rationale was provided. In March 2018, the Veteran underwent another examination, and the examiner again noted his diagnosis of bilateral pes planus. The Veteran reported that his feet began to hurt during service after long ruck marching and rappelling, and that his condition progressively worsened. The examiner noted that the Veteran’s symptoms included pain accentuated on use, and that there was a decreased longitudinal arch on weight-bearing. Ultimately, the examiner opined that the Veteran’s pes planus was clearly and unmistakably not aggravated beyond its natural progression by his military service. The examiner observed mild asymptomatic pes planus noted on the Veteran’s examination, and that there were a number of foot complaints during service to include a bunion deformity, metatarsalgia and suspected gout. However, the examiner concluded that the Veteran’s separation examination and current examination did not reflect a progression of the mild pes planus noted on entrance. The Board finds that the opinions of record are insufficient to adjudicate the Veteran’s claim. Initially, in addition to failing to address the Veteran’s lay statements concerning the worsening of his condition over the course of his active duty service (as noted by the June 2020 Memorandum Decision), the opinion providers also failed to address the clinical significance of the fact that he was given arch supports in February 2015 following his reports of bilateral foot pain, and whether such represents aggravation of his pes planus. Furthermore, although the examiners noted that the Veteran’s separation was silent for pes planus, the examiners failed to address the Veteran’s June 2015 report of medical history wherein he reported foot trouble, and the treatment provider noted his diagnosis of flat feet and that he was issued inserts and braces at Fort Campbell. To ensure an adequate record upon which to decide the Veteran’s claim for service connection, the Board finds that he should be afforded a new VA examination to determine whether his preexisting pes planus was aggravated beyond its nature progression by his military service. On remand, the Veteran should be given the opportunity to identify any outstanding pertinent records. The matters are REMANDED for the following action: 1. Give the Veteran the opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if he provides the appropriate authorization. 2. The Veteran should be afforded a new VA examination by a medical professional with appropriate expertise to determine whether his preexisting pes planus was aggravated beyond its natural progression by his military service. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disability. With respect to the Veteran’s preexisting bilateral pes planus, following a review of the entire record, the examiner should address the following questions: (i) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s preexisting bilateral pes planus increased in disability during service? (ii) If so, is it clear and unmistakable (i.e. is it undebatable) that the increase in disability of pes planus during service was a result of the disability’s natural progression? In addressing the above, the examiner should note the Veteran’s contention that the physical requirements of active duty, including the rigors of running, hiking (ruck marching), jumping and landing (Air Assault Training), the wearing of military-issued boots, and many other tasks, aggravated his pes planus beyond its normal progression. See May 2016 Notice of Disagreement. The examiner should consider and discuss the Veteran’s April 2005 entrance examination which notes the presence of mild asymptomatic pes planus, his complaints of foot pain during service, and the prescription of arch supports during service. All opinions should be supported by a medical explanation or rationale. 3. Thereafter, and after any further development deemed necessary, the issue on appeal should be readjudicated. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.