Citation Nr: 21065281 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-42 780 DATE: October 25, 2021 ORDER Service connection for bilateral pes planus is denied. REMANDED Entitlement to service connection for a right foot disability (other than pes planus) is remanded. Entitlement to service connection for a left foot disability (other than pes planus) is remanded. Entitlement to service connection for a right hip disability, to include as secondary to a right foot disability (other than pes planus), is remanded. Entitlement to service connection for a left hip disability, to include as secondary to a left foot disability (other than pes planus), is remanded. Entitlement to service connection for a lower back disability, to include as secondary to a bilateral foot disability (other than pes planus), is remanded. FINDING OF FACT Bilateral pes planus was noted at the time of the Veteran's examination, acceptance and enrollment for active military service, and there was no permanent increase in the severity of such pre-existing disorder during his period of active service from February 1966 to January 1969. CONCLUSION OF LAW The criteria for entitlement to service connection for pre-existing bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1111, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1966 to January 1969. In July 2019, the issue of service connection for bilateral hearing loss was granted and the remaining issues on appeal were remanded for additional evidentiary development. The case has been returned to the Board for appellate review. There was substantial compliance with the July 2019 remand directives for the issue on appeal discussed below on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Veteran was provided a VA examination for foot conditions and a VA medical opinion for bilateral pes planus in December 2019. This VA examination report is adequate as it was based on a review of the history, examination, and sufficient information was provided to allow the Board to render an informed determination. The issue was also readjudicated in a February 2020 supplemental statement of the case (SSOC). In the August 2021 written brief, the Veteran's representative noted that the December 2019 VA examiner characterized the Veteran's foot condition as a congenital condition and that there is precedence for service connection for a congenital condition. The Board acknowledges that VA's General Counsel has explained that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin, as long as the evidence as a whole establishes that the familial conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. VAOPGCPREC 82-90 (July 18, 1990). As will be discussed below, the Veteran's diagnosis of bilateral pes planus is a pre-existing disorder and there was no permanent increase in the severity of this pre-existing disorder during his period of active service from February 1966 to January 1969. As a result, any additional development pursuant to establishing service connection for bilateral pes planus is not warranted in this case. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist with regards to the issue discussed below on the merits. 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). Entitlement to service connection for bilateral pes planus 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. This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. The term "noted" denotes only such conditions as are recorded in examination reports. 38 C.F.R. § 3.304. The January 1966 entrance examination report for active service shows the examining physician marked abnormal for clinical evaluation of the feet and noted moderate bilateral pes planus under the section for "summary of defects and diagnoses." The January 1966 Report of Medical History shows notation of "flat feet no s[ymptoms]." As such, the Board finds that bilateral pes planus was noted at the time of the Veteran's examination, acceptance and enrollment for active military service. Next, the Board must determine whether the Veteran's pre-existing bilateral pes planus was aggravated during service. To make this determination, the Board must consider the Veteran's service treatment records as well as evidence developed after service. The Board notes that aggravation for purposes of entitlement to VA compensation benefits requires more than that a pre-existing disorder become intermittently symptomatic during service. There must be permanent advancement of the underlying pathology. A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b); see Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); VAOPGCPREC 3-03; 69 Fed. Reg. 25,178 (2004). Temporary or intermittent flare-ups of symptoms of a pre-existing condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002). Review of the Veteran's service treatment records shows treatment during basic training in February 1966 for foot pain which resulted in a podiatry appointment to receive arch supports, treatment for the feet and put on light duty in February 1966, and assessment of a leg length discrepancy and order for a heel raise with a wedge in March 1966. At the time of separation from active service, the November 1968 examination report noted clinical evaluation of the feet as normal and there was no notation of bilateral pes planus under the section for "summary of defects and diagnoses." Additionally, the November 1968 Report of Medical History shows no history of foot trouble was noted. As such, review of the service treatment records does not show a permanent worsening of the pre-existing bilateral pes planus noted at the January 1966 service entrance examination during his period of active service from February 1966 to January 1969. Service treatment records are highly probative of the Veteran's physical condition during service, as they are the only contemporaneous record of his bilateral pes planus, but they should also be considered in light of the record as a whole. Following service and pursuant to the claim on appeal, review of private treatment records shows that in March 2006 the Veteran reported feeling unsteady on his feet due to dizziness within the last three to four years. Review of VA treatment records dated since April 2011 show that in February 2013 radiology results for his feet revealed "old healed fracture and left second metatarsal" for the left foot and "no fracture or dislocation is noted, there is no significant arthritic or degenerative changes, there is no pes planus deformity, and there are tiny calcaneal enthesophytes" for the right foot. In November 2013, the Veteran reported his feet really hurt and requested an appointment with a foot doctor. In July 2014, he reported "I have a lot of pain in my feet." Nevertheless, none of this evidence addresses the fact that the physical evaluation at the time of separation from service did not show a permanent worsening of the Veteran's bilateral pes planus from what was shown at enlistment. Again, clinical evaluation of the feet was marked as normal and there was no notation of bilateral pes planus under the section for "summary of defects and diagnoses" in the November 1968 examination report, and the November 1968 Report of Medical History shows no history of foot trouble was noted. In January 2013, the Veteran was afforded a VA examination for flatfoot (pes planus). Following the evaluation, the VA examiner concluded the Veteran's pes planus clearly existed prior to his enlistment and is less likely aggravated beyond normal progression of disease due to service due to above medical condition. As noted in the July 2019 Board remand, the VA examiner in January 2013 did not address the February 1966 service treatment record that shows the Veteran was also treated for his feet and was put on light duty, thus making the VA medical opinion incomplete for adjudicative purposes. As a result, pursuant to the July 2019 remand directives, the Veteran was afforded a VA examination for foot conditions, including flatfoot (pes planus), and medical opinion for bilateral pes planus in December 2019. The VA examiner affirmed the Veteran's current diagnose, to include bilateral pes planus, and provided the following opinion: In reviewing the [V]eteran's [service treatment records] and post-service medical records, it is clear that the congenital pes planus existed prior to service. The only medical records in service showing anything to do with the feet are during F[ebruary] and March 1966. He was seen a few times and referred to the podiatrist. The [V]eteran states that the arch supports did not help and he abandoned them soon after receiving them. He did not seek further treatment during service or after service until at least the 2000's. His separation physical from service is silent for any ongoing foot problem. The natural progression of pes planus is for mild, gradual worsening. This appears to be the trajectory for this [V]eteran. There is no substantial evidence of any aggravation due to service. The VA examiner reviewed the claims file, to include the February and March 1996 in-service podiatry appointments, issuance of arch supports, and reported foot pain, and there is no indication that the examiner was not fully aware of the Veteran's past medical history or misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the Veteran's bilateral pes plans and had sufficient facts and data on which to base a conclusion. Further, there is no contradicting medical evidence of record. As such, the Board finds the December 2019 VA medical opinion to be of great probative value for reasons discussed above. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Review of the claims file also includes the August 2016 VA Form 9 in which the Veteran reported "[i]n regard to [his] bilateral foot condition, [he did] not understand how this was denied due to no treatment in the military when [his representative] assessed his service treatment records and found 3 separate entries of bilateral pes planus that requirement treatment with podiatry." In the June 2019 written brief, the Veteran's representative also noted that the Veteran's service treatment records show he entered service with a diagnosis of asymptomatic pes planus and during service began to have foot problems and sought treatment on at least three occasions. Even accepting any assertions made by the Veteran and/or his representative regarding potential aggravation of his bilateral pes planus, to include his in-service occurrences regarding the feet in February 1966 and March 1966 and any lay assertion that the condition persisted to the present, given the showing of bilateral pes planus at enlistment in January 1966, the Veteran has the burden of establishing his bilateral pes planus was aggravated by such occurrences during his period of active service from February 1966 to January 1969. The Board reiterates that that aggravation for purposes of entitlement to VA compensation benefits requires more than that a pre-existing disorder become intermittently symptomatic during service, and there must be permanent advancement of the underlying pathology. At this point, the Veteran has not met this burden. The Board generally finds that the Veteran is competent to provide statements regarding what comes to him through his senses, and the Board has considered the statements from the Veteran that his bilateral pes planus was aggravated during active service. See Layno v. Brown, 6 Vet. App. 465, 69-70 (1994). However, his current assertions are contradicted by the clinical testing which was conducted at the time of separation from active service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Given this fact, the Board accords the Veteran's arguments limited probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In sum, the preponderance of the evidence establishes that the Veteran's pre-existing bilateral pes planus did not chronically worsen or increase in severity during his period of active service from February 1966 to January 1969. The Board finds that the medical evidence, particularly the service separation examination report in November 1968 and the December 2019 VA medical opinion outweighs his assertions of worsening during active service. Based on the foregoing, the Board finds the Veteran's bilateral pes planus, which existed prior to service, was not aggravated by active service, and service connection is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right foot disability (other than pes planus) 2. Entitlement to service connection for a left foot disability (other than pes planus) As previously noted, the Veteran was afforded a VA examination for foot conditions in December 2019 pursuant to the July 2019 Board remand. While the examination report shows diagnoses of bilateral pes planus and bilateral plantar fasciitis, the VA examiner did not address whether there is a nexus between the Veteran's diagnosis of bilateral plantar fasciitis and documented in-service occurrences. Additionally, the December 2019 VA examiner characterized the Veteran's bilateral pes planus as a congenital condition. While congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation, VA's General Counsel has noted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993) (citing Hunt v. Derwinski, 1 Vet. App. 292 (1991)); VAOPGCPREC 67-90 (July 18, 1990). As such, the Board finds that an additional VA medical opinion is needed to properly adjudicate the issues on appeal of service connection for right and left foot disabilities (other than pes planus). When VA undertakes to provide a VA examination and/or opinion, it must ensure that the examination and/or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to service connection for a right hip disability, to include as secondary to a right foot disability (other than pes planus) 4. Entitlement to service connection for a left hip disability, to include as secondary to a left foot disability (other than pes planus) 5. Entitlement to service connection for a lower back disability, to include as secondary to a bilateral foot disability (other than pes planus) While the Board remands the issues of entitlement to service connection for right and left foot disabilities (other than pes planus) for additional evidentiary development, as discussed above, that decision may impact these claims for right hip, left hip, and lower back disabilities. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's claim on appeal for right and left foot disabilities (other than pes planus). The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: Review of service treatment records shows (a) treatment during basic training for foot pain which resulted in a podiatry appointment to receive arch supports, (b) treated for the feet and put on light duty in February 1966, and (c) noted to have a leg length discrepancy and ordered a heel raise with a wedge in March 1966. The examiner must provide opinions as to the following: (a.) Whether the Veteran's diagnosis of bilateral pes planus is a congenital defect, congenital disease, or neither. Note - A defect is defined as a structural or inherent abnormality or condition which is more or less stationary in nature. A disease is any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. (b.) If the Veteran's bilateral pes planus is a congenital defect, whether it was subject to a superimposed disease or injury during his period of active service that resulted in additional disability, and if such resultant disability is bilateral plantar fasciitis. (c.) If bilateral plantar fasciitis is not a resultant disability from bilateral pes planus (as a congenital defect), then whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral plantar fasciitis began during active service or related to an incident of service, to include consideration of the Veteran's assertion that a foot disorder has persisted to the present. The examiner must provide all findings, along with a complete rationale for his or her opinions 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. If, and only if, a positive medical opinion was provided for the Veteran's right and/or left foot disability (other than pes planus), then schedule the Veteran for examination(s) with appropriate clinician(s) to determine the nature and etiology of any diagnosed right hip, left hip, and lower back disabilities. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that each disability was proximately due to or the result of his foot disability (other than pes planus). (b.) Whether it is at least as likely as not that each disability was aggravated beyond its natural progression by his foot disability (other than pes planus). (Continued on the next page) The examiner must provide all findings, along with a complete rationale for his or her opinions 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. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.