Citation Nr: 21063971 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-36 383 DATE: October 18, 2021 ORDER Entitlement to service connection for right foot pes planus is denied. REMANDED Entitlement to service connection for a right foot disability, other than pes planus, is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's pre-existing pes planus increased in severity during service. CONCLUSION OF LAW The Veteran's pre-existing pes planus disability was not aggravated by service. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from January 1976 to January 1980. In March 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive a new VA examination for her right foot disability that considered whether it was related to her in-service right ankle sprain as well as the lay statements of record. The Veteran received a new VA examination in July 2019. The Board also directed the AOJ to update the claims file with VA treatment records and request that the Veteran submit authorizations for VA to obtain privat medical records. The RO sent her authorization forms in April 2019 and she did not provide the requested information. Additional VA treatment records were added to the file. In December 2019, the Board remanded the case again for the Veteran to receive a new VA examination that considered the additional evidence submitted. Specifically, an article was submitted that noted degenerative changes were possible years after the initial trauma. In February 2020, an addendum opinion was submitted. The opinion considered the additional evidence in providing a negative nexus opinion. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded a claim for service connection for hypertension and the claim was granted in an August 2020 Decision Review Officer (DRO) decision. Therefore that issue is no longer before the Board. The Board acknowledges the Veteran made a general argument regarding the VA's duty to assist and duty to notify. However, the Veteran failed to advance any specific argument regarding either duty. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection is warranted if a preexisting disorder was aggravated by a veteran's active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153 (2018); 38 C.F.R. § 3.306(a) (2021). The burden is on the VA to establish a lack of aggravation of the preexisting disability. VA must show that there is clear and unmistakable evidence 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(b); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). "Clear and unmistakable evidence" is a more formidable evidentiary burden that the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2021). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's pre-existing pes planus was noted on her entrance examination. Therefore, 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 control in this case. There is nothing in her service treatment records documenting treatment or complaints for pes planus. There was no evidence of pes planus on her separation examination. The service treatment records do not show that her pes planus increased in severity during service. The Veteran has not asserted that her pes planus increased in severity during service, and her post service medical records do not show that it increased in severity during service. The record documents the Veteran's complaints of right foot and toe numbness, not pes planus. Her right foot and toe numbness is addressed in the remand section below. In order for the presumption of aggravation to apply, the pre-existing disability needs to have increased in severity during service. 38 C.F.R. § 3.306. Because there is no probative medical or lay evidence showing that the Veteran's pes planus increased in severity during service, service connection for the Veteran's pes planus disability is not warranted based on aggravation of a pre-existing disability. REASONS FOR REMAND The Board finds that another addendum opinion is necessary to fully adjudicate the Veteran's service connection claim for a right foot disability (other than pes planus). The Veteran's representative argued that her service connected psychiatric condition caused obesity and her obesity consequently led to her right foot condition. In 2017, VA's General Counsel issued a precedent opinion which held that obesity is not subject to service connection on a direct basis, cannot qualify as an in-service disease or injury for the purposes of service connection, and generally cannot be service connected on a secondary basis as a disability directly resulting from a service-connected disability. VAOPGCPREC 1-2017 (Jan. 22, 2017). It was further held, however, that obesity can be an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis. Id. For obesity to be such an "intermediate step," (1) a service-connected disability must have caused the Veteran to become obese, (2) obesity must have been a substantial factor in causing the disability in question and (3) the disability in question must have been one that would not have occurred but for obesity caused by the service-connected disability. Id; see also Marcelino 29 Vet. App. 155. A VA examination is necessary to determine if there is evidence showing that obesity may be an intermediate step between her psychiatric disability and right foot disability. Thus, a remand for a new VA opinion is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for her right foot disability (other than pes planus). The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide an opinion as to the following: a.) Whether it is at least as likely as not (50 percent or greater probability) the Veteran's service connected psychiatric disability caused or aggravated her obesity. b.) If yes, whether it is at least as likely as not that the Veteran's obesity was a substantial factor in causing a right foot disability (other than pes planus). c.) If yes, whether it is at least as likely as not that the Veteran's right foot disability (other than pes planus) would not have occurred but for the obesity caused by or aggravated by her service connected psychiatric disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.