Citation Nr: 21003717 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 20-14 746 DATE: January 22, 2021 ORDER The issue of entitlement to service connection for bilateral pes planus is reopened. The issue of entitlement to service connection for bilateral plantar fasciitis is reopened. Entitlement to service connection for bilateral pes planus is granted. Entitlement to service connection for bilateral plantar fasciitis is granted. FINDINGS OF FACT 1. The Veteran’s claims for entitlement to service connection for bilateral pes planus and plantar fasciitis were originally denied in a rating decision of August 2010, which became final. 2. The evidence received since the August 2010 rating decision is not cumulative and redundant of the other evidence of record and raises a reasonable possibility of substantiating the Veteran’s claims. 3. It is at least as likely as not that the Veteran’s bilateral pes planus, which existed prior to his active-duty service, was aggravated by such service. 4. It is at least as likely as not that the Veteran’s bilateral plantar fasciitis is due to his bilateral pes planus. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the issue of service connection for the Veteran’s bilateral pes planus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received to reopen the issue of service connection for the Veteran’s plantar fasciitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 1153; 38 C.F.R. §§ 3.304(b), 3.306. 4. The criteria for entitlement to service connection for bilateral plantar fasciitis have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1977 to June 1985 and from February 1986 to January 1993. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of January 2019 issued by the Department of Veterans Affairs (VA) Regional Office (RO). Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in February 2019. The RO issued a statement of the case (SOC) in January 2020 and the Veteran’s timely appeal to the Board followed in March 2020. Because the Veteran did not request a hearing in his appeal to the Board, no hearing before the undersigned Veterans Law Judge (VLJ) was scheduled. The Board briefly notes that a claim seeking service connection for the separate foot condition of bilateral hammer toes is the subject of additional May 2019 and August 2020 rating decisions, but has not yet been appealed to the Board. Accordingly, the Board will address only the issues of bilateral pes planus and plantar fasciitis in this decision. 1. The claims for entitlement to service connection for bilateral pes planus and plantar fasciitis are reopened. The Veteran’s claims on these issues were previously denied in a rating decision of August 2010. The Veteran initiated, but later withdrew, an appeal on these issues. See September 2010 NOD; see also March 2011 Correspondence. Accordingly, the August 2010 rating decision became final. Once a rating decision has become final, new and material evidence is generally required to reopen that claim. See 38 C.F.R. § 3.156(a). In the rating decision on appeal, the RO found that the Veteran had not presented new and material evidence sufficient to reopen his claims. See January 2019 Rating Decision at 2-3. However, under the legacy system of regulations, the Board reviews the RO’s findings de novo. See 38 C.F.R. § 3.104 (2018); cf. 38 C.F.R. § 3.104. Generally, “[if] new and material evidence is presented or secured with respect to a claim which has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim.” 38 U.S.C. § 5108 (2018). “New evidence is evidence not previously part of the actual record… [material] evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). New and material evidence “can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.” Id. However, new and material evidence can be sufficient to reopen a claim if it can satisfy at least one previously unproven element thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (holding that regulations do not require evidence “as to each previously unproven element of a claim”) (emphasis added). The elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). The Veteran has submitted additional private treatment records, including physicians’ opinions as to the etiology of his conditions. See March 2018 Medical Treatment Records; see also February 2019 Medical Treatment Records. The Board therefore finds that additional evidence has been submitted in support of the first and third Shedden factors and that the Veteran has presented new and material evidence sufficient to reopen his claims for service connection for bilateral pes planus and plantar fasciitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for bilateral pes planus. A veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 U.S.C. § 1111; see also 38 U.S.C. § 1132 (providing that a similar presumption applies to veterans serving during peacetime for at least six months). Only such conditions as are recorded in examination reports are to be considered as “noted.” 38 C.F.R. § 3.304(b). In this case, the Veteran does not dispute that his bilateral pes planus predated his active-duty service. Instead, he asserts that his bilateral pes planus was aggravated by such service, resulting in the development of plantar fasciitis as an additional foot condition. See February 2019 NOD at 2-3. While the Veteran’s service treatment records (STR) are only partially legible, the evidence of record supports a finding that his bilateral pes planus was noted at his enlistment examination and therefore predated his active-duty service. See July 2010 VA Examination Report at 1 (noting that original enlistment examination of August 1977 showed “mild pes planus”); see also March 2015 STR at 21 (providing reenlistment examination of November 1985 noting both pes planus and hammer toes). Generally, a preexisting injury or disease “will be considered to have been aggravated by [active-duty] 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 (emphasis added). Where such an increase has been found, any finding that it is due to the natural progression of the disease must be based on clear and unmistakable evidence. 38 C.F.R. § 3.306(b). The threshold inquiry for the Board is therefore whether the Veteran’s bilateral pes planus increased in severity during his active-duty service. The Veteran has undergone several VA examinations assessing multiple foot conditions. A July 2010 VA examiner opined that the Veteran’s current foot conditions are less likely than not due to his bilateral pes planus. However, this examiner’s opinion appears based primarily on the absence of in-service treatment. See July 2010 VA Examination Report at 3. Generally, the Board may not consider the absence of evidence as substantive negative evidence when adjudicating a claim. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); cf. Maxson v. Gober, 230 F.3d 1330 (2000) (providing that evidence of a prolonged period without medical complaint can be considered along with all the other evidence of record). A July 2018 VA examiner diagnosed the Veteran with pes planus, hammer toes, and plantar fasciitis, noting that the onset of the latter condition postdated the former by several years. See August 2018 VA Examination Report at 2. However, this VA examiner appears to have been asked to opine on a question unrelated to the Veteran’s theory of the case. See August 2018 VA Medical Opinion at 1 (asking whether “any currently diagnosed condition(s) related to the Veteran’s claimed bilateral pes planus [are] at least as likely as not… caused by foot trouble and minor surgery on the right big toe during service”); see also id. at 2 (opining that “foot surgery… [involving] removal of the great toe nail due to onychomycosis… has no medical nexus with pes planus or plantar fasciitis”). An additional VA examination of December 2018 likewise appears to have posed a question that does not respond to the Veteran’s theory of the case. See December 2018 VA Examination Report at 2 (asking whether “the claimed plantar fasciitis, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression”) (emphasis added); see also id. at 3 (opining that because plantar fasciitis was not noted on the Veteran’s enlistment or reenlistment examinations, “there is no military documentation that supports a PRE-military, or MILITARY diagnosis of Plantar Fasciitis, therefore it is less likely than not that [the] condition was aggravated by military service”) (capitalization in original). As noted above, the Veteran has asserted that his bilateral pes planus, not his plantar fasciitis, predated his active-duty service. The Board has therefore considered whether remand is warranted to obtain more current VA examination reports which adequately respond to the Veteran’s theory of the case. However, the Board is also mindful of regulatory constraints on its ability to remand for further development, which “should not be undertaken when [the] evidence present is sufficient for this determination.” 38 C.F.R. § 3.304(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (noting that the final analytical step in considering whether a VA examination is warranted is whether there is “insufficient competent medical evidence on file for the Secretary to make a decision on the claim”). The Board finds that the private medical evidence of record is sufficient to support a decision on this issue. Several private medical examiners have opined, and the Veteran has consistently asserted, that symptoms of pain due to his pes planus were aggravated by his active-duty service. See July 2010 Medical Treatment Records at 1 (noting “longstanding feet problems, which go back to the military”); see also March 2018 Medical Treatment Records at 1 (noting the Veteran’s assertion that “[he] first began having pain in the arch[es] of his feet when he was initially in basic training[,] [he] states his boots were too small [and] [he] has always had pain in the arch[es] of his feet”); see also id. (noting that “[by] the time he left [active-duty service], the arch[es] of his feet had fallen”); see also id. at 2 (opining that “initial training… [and] many years of training infantry students caused abnormal stresses on… the arch[es] of both feet”); see also August 2018 VA Examination Report at 3 (noting Veteran’s assertion that foot pain began in basic training and has increased over time). Additionally, a private medical examiner of February 2019 opined that: [The Veteran’s] [pes planus] was not addressed with appropriate offloading or orthotic therapy and following rigorous military training, [it] continued to progress… [by] his re-enlistment physical in 1985, the deformities had progressed to hammer digits with genu valgus… had [the Veteran] not undergone rigorous military training with inappropriate shoe gear… his congenital pes planus may not have progressed to the other additional conditions noted today. See February 2019 Medical Treatment Records at 1; see also March 2019 Disability Benefits Questionnaire (DBQ) at 3 (noting that “[pain] in associated areas began prior to enlistment in 1977 but related deformities developed and worsened in the military over time”). The Board therefore finds that the private medical evidence supports the conclusion that it is at least as likely as not that the Veteran’s bilateral pes planus was aggravated by his active-duty service. 38 U.S.C. § 5107. The VA examination reports do not present clear and unmistakable evidence that the progression of the Veteran’s pes planus was due only to the natural progression of the disease. 38 C.F.R. § 3.306(b). The assignment of service connection on the basis of aggravation of a preexisting condition is therefore warranted. 38 U.S.C. §§ 1110, 1131, 1153. 3. Entitlement to service connection for bilateral plantar fasciitis. As previously noted, the elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); see also Shedden, 381 F.3d at 1167. Additionally, disabilities which are “proximately due to or the result of a service-connected disease or injury” are also service connected. 38 C.F.R. § 3.310(a). “When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.” Id. As discussed above, the VA examinations of record do not adequately address the Veteran’s assertion that the progression of his bilateral pes planus resulted in the development of plantar fasciitis. The Board has again considered whether a remand is warranted. See McLendon, 20 Vet. App. at 81. However, the Board concludes that the private medical evidence of record is already sufficient to support a finding that it is at least as likely as not that the Veteran’s plantar fasciitis is due to his bilateral pes planus. See February 2019 Medical Treatment Records at 1 (noting plantar fasciitis among other foot conditions and opining that such conditions are progressions of the Veteran’s bilateral pes planus); see also March 2018 Medical Treatment Records at 7 (providing medical opinion of May 2017 that “flat foot deformity… can contribute mechanically to [bilateral plantar fasciitis]”). The assignment of service connection on a secondary basis is therefore warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.310. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.