Citation Nr: 21064712 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-24 721A DATE: October 21, 2021 ORDER Entitlement to service connection for bilateral foot pain, diagnosed as pes planus, is granted. Entitlement to service connection for bilateral ankle pain is granted. REMANDED Entitlement to service connection for upper extremity joint pain, to include left shoulder, right shoulder, and right wrist conditions, is remanded. FINDINGS OF FACT 1. The Veteran's pre-existing pes planus was aggravated by service. 2. The Veteran's bilateral ankle pain is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral foot pain, diagnosed as pes planus, have been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. 2. The criteria to establish service connection for bilateral ankle pain have been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to August 1973. The Veteran appealed an April 2011 rating decision by the Agency of Original Jurisdiction (AOJ). In April 2018, July 2019, May 2020, and May 2021, the Board remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives regarding joint pain in the Veteran's feet and ankles. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the Veteran's back and bilateral knees are already service connected and the issue regarding service connection for the right hand was denied in a July 2018 Board decision. The Veteran initially generally claimed service connection for joint pain due to an in-service jump incident. See February 2011 Veteran statement. As such, the May 2020 Board decision remanded the case for consideration of joint pain other than the back, bilateral knees, and right hand, to include the right wrist and bilateral shoulders. The Veteran has specifically mentioned his right shoulder. See July 2014 VA Form 9. SSA records also indicate right wrist issues. The December 2020 examination reports also noted pain separately in the feet and ankles. Therefore, the Board will consider separately joint pain in the bilateral shoulders, right wrist, feet, and ankles. A Veteran is entitled to the Department of Veterans Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Feet Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. See 38 C.F.R. § 3.304(b). Cases in which the condition is noted on entrance, are governed by the presumption of aggravation of a pre-existing disability contained in 38 U.S.C. § 1153, as opposed to that applicable under 38 U.S.C. § 1111 where the complained-of condition was not noted on entrance into service. This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows 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. Essentially, the Veteran is bringing a claim for service connection for aggravation of his pre-existing disorder when that disorder is noted at service entrance. The Veteran is diagnosed with pes planus. See February 2021 VA treatment records. The Veteran's entrance examination clearly noted non-disqualifying pes planus. See May 1972 service treatment records (STRs). Therefore, the presumption of soundness does not attach. The July 2021 opinion noted the Veteran's joint pain is arthralgias, which is a symptom of pes planus. The July 2021 opinion also noted that 65 percent of lower extremity injuries are accounted for parachutes jumps. See also February 2011 Veteran statement. The December 2020 examination reports regarding the feet noted an onset date of 1973 for the Veteran's bilateral foot pain, noted the Veteran's parachuting accident, and noted that he has had pain since 1973. Importantly, the October 2019 opinion found the Veteran's right knee, left knee, and joint pain was at least as likely as not aggravated beyond its natural progression due to the frequent airborne jumps the Veteran had to take while in the military. The October 2019 opinion specifically offered an opinion as to joint pain separately from the Veteran's right and left knee disabilities. The Veteran is already service connected for a right and left knee disability. The presumption of aggravation only requires evidence of an actual worsening of a preexisting condition during service; it does not require direct evidence of nexus, that is, that the worsening was caused by service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010). Under 38 U.S.C. § 1111, once a Veteran establishes worsening, "the burden shifts to the [VA] Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease." Horn v. Shinseki, 25 Vet. App. 231, 235 n.6 (2012). If VA cannot do so, the increase is presumed to have been caused by active duty service even in the absence of direct evidence of causation. In other words, the presumption of aggravation only requires evidence of an actual worsening of a preexisting condition during service; it does not require direct evidence of nexus, that is, that the worsening was caused by service. Smith, 24 Vet. App. at 47-48. Here, VA is unable to provide clear and unmistakable evidence that the worsening was due to the natural progress of the disease. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003). Overall, the Veteran entered service in 1972 with pes planus, but it was non-disqualifying and the Veteran did not complain of foot pain upon entering. The Veteran would participate in parachuting during service. Then, starting in 1973, the Veteran competently stated he developed foot pain that continued to present. The Board finds the Veteran's statements credible. Based on this evidence, the Veteran's foot pain, diagnosed as pes planus, was aggravated by service due to parachuting. This is corroborated by a medical opinion of record. As such, there is no clear and unmistakable medical evidence to suggest that the increase in severity was due to the natural progress of the disease. Thus, the Board finds that service connection for bilateral foot pain, diagnosed as pes planus, is warranted. 2. Ankle The December 2020 examination report did not note a diagnosis for an ankle condition. See also July 2021 opinion. However, in Saunders v. Wilkie, the Federal Circuit held that pain alone can constitute a disability if it causes functional impairment. 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Federal Circuit further explained that to establish a disability, "the [V]eteran will need to show that his pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. The December 2020 examiner noted bilateral ankle pain that can be 10/10 on exertion. Such pain impacts the Veteran's ability to ambulate. As a result, the Board considers the Veteran's bilateral ankle pain amounts to such disabling functional impairment as contemplated in Saunders. As noted above, the Veteran was subject to parachute jumps during service. As to nexus, the December 2020 examiner noted an onset date of 1973, noted the Veteran's parachuting accident, and that he has had bilateral ankle pain ever since. The Board finds the Veteran's statements credible. As the evidence for and the evidence against the Veteran's claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds that bilateral ankle pain is related to service. Accordingly, the Board grants service connection for bilateral ankle pain. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The record additionally notes shoulder joint pain and that the Veteran was diagnosed with right shoulder degenerative arthritis. See August 2014 VA treatment records; December 2020 VA examination report. There is also pain noted in the right wrist. See March 2006 treatment records. As noted in the April 2018 Board decision, the Veteran's joint pain may be secondary to his service connected back disability. See October 2006 SSA decision. However, etiology opinions have not been obtained that cover all theories of entitlement, to include secondary aggravation of the Veteran's upper extremity joint pain, to include the left shoulder, right shoulder, and right wrist, by the Veteran's service-connected back disability. Therefore, remand is required to obtain opinions that cover all theories of entitlement. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his upper extremity joint pain that are not already of record, to include for his left shoulder, right shoulder, and right wrist. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's upper extremity joint pain, to include left shoulder, right shoulder and right wrist pain. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician should identify all upper extremity joint pain conditions, to include left and right shoulder pain or degenerative arthritis and any right wrist pain. If any symptoms are not attributable to a diagnosis, any functional loss should be described. Then, for each identified condition and/or functional loss present, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's upper extremity joint pain was incurred in, or otherwise related, to his time on active service, to include parachuting during service? Is it at least as likely as not that the Veteran's upper extremity joint pain was CAUSED by his service-connected back disability? Is it at least as likely as not that the Veteran's upper extremity joint pain was AGGRAVATED by his service-connected back disability? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must 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). (Continued on the next page) 3. After the above development has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.