Citation Nr: 21065617 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-35 138 DATE: October 26, 2021 ORDER Entitlement to service connection for bilateral pes planus is granted. Entitlement to service connection for bilateral knee strain secondary to bilateral pes planus is granted. Entitlement to service connection for a right ankle disability, characterized as achilles tendon tear and instability of the right ankle, claimed as secondary to bilateral pes planus is denied. FINDINGS OF FACT 1. It has not been shown by clear and unmistakable evidence that the Veteran's bilateral pes planus was not aggravated by his active service. 2. The evidence is at least in approximate balance as to whether the Veteran's bilateral knee strain is the result of his service-connected bilateral pes planus. 3. The weight of the evidence is against a finding that the Veteran's right ankle disability, characterized as achilles tendon tear and instability of the right ankle, was incurred in, or aggravated by his active service, to include being proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 1111, 1132, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(b). 2. The criteria for entitlement to service connection for bilateral knee strain secondary to bilateral pes planus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for right ankle disability, characterized as achilles tendon tear and instability of the right ankle, to include as secondary to bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran had active service in the U.S. Army from November 1976 to January 1977. These matters originate from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied a request to reopen a previously denied claim for service connection for bilateral pes planus; and denied, in pertinent part, claims for service connection for right ankle and bilateral knee disabilities, all claimed as secondary to the Veteran's bilateral pes planus. These matters return to the Board of Veterans' Appeals (Board) following a February 2019 Board remand for additional development. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant decision, the Board is granting the Veteran's bilateral pes planus and bilateral knee claims in full, and so finds no prejudice to the Veteran in adjudicating these claims without substantive Stegall analysis. The issue of compliance as it relates to the Veteran's right ankle claim is addressed below. The decision to reopen a previously denied claim is a distinct issue from an underlying claim for benefits. See 38 U.S.C. §§ 1154(a), § 5107; 38 C.F.R. § 3.303. While neither a June 2017 Statement of the Case (SOC) nor the February 2019 Board decision reflect an explicit determination that the criteria for reopening the previously denied pes planus claim have been met, both the SOC and the Board remand reflect substantive analysis of the Veteran's pes planus service connection claim on the merits. Accordingly, consistent with the holding of the Court of Appeals for Veterans Claims (CAVC) holding in Smith v. Wilkie, 32 Vet. App. 332 (U.S. 2020), the Board now considers the Veteran's previously denied pes planus claim to have been reopened, and the matter of service connection for bilateral pes planus to be properly before it. The Board notes that it has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Entitlement to service connection for bilateral pes planus is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A November 2015 VA medical examination, a June 2019 VA medical opinion, and a November 2020 private medical evaluation reflect a current diagnosis of bilateral pes planus. See 12/02/2015, C&P Exam, p. 34; 6/28/2019, C&P Exam, p. 2; 11/09/2020 Medical Treatment Record Non-Government Facility, p. 3. Thus, the remaining question is whether the Veteran's bilateral pes planus was incurred in or aggravated by his active military service. The Veteran's service treatment records (STRs) reflect a diagnosis of mild pes planus at the time of entry into service. 3/13/2013, STR-Medical, p. 3. 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. The provisions of 38 U.S.C. § 1111 are referred to as the presumption of soundness and rebuttal of this presumption requires a two-step analysis. To deny service connection for a disability on the basis that it pre-existed a Veteran's service, the burden is on VA to demonstrate both that (1) the disability clearly and unmistakably existed prior to service; and (2) that the condition clearly and unmistakably was not aggravated during service. Clear and unmistakable evidence is evidence that cannot be misinterpreted or misunderstood, and the standard is an onerous one. See Laposky v. Brown, 4 Vet. App. 331, 334 (1993), Quinn v. Shinseki, 22 Vet. App. 390, 396 (2009). Pertinent to the first question is the Veteran's 1976 entrance examination, a June 2019 VA medical opinion, and a private medical opinion submitted by the Veteran in November 2020. The opinions of both the VA examiner and the private provider are consistent with the November 1976 entrance examination finding of "mild pes planus" upon entry into service. It is clear and unmistakable that a diagnosis of pes planus preexisted the Veteran's service. However, the second prong of the presumption of soundness analysis is not satisfied: it has not been shown through clear and unmistakable evidence that the Veteran's preexisting pes planus was not aggravated by his period of active service. The Veteran's private provider opined that the Veteran's bilateral pes planus was unmistakably aggravated "well beyond" its natural progression by his period of active service. 11/09/2020, Medical Treatment Record Non-Government Facility, p. 4. The Board finds the November 2020 opinion to be highly probative, as it reflects consideration of both the Veteran's present and in-service reports concerning the onset and progression of foot pain and a detailed explanation of the underlying principles of medical analysis involved in comparing the natural progression of pes planus to the Veteran's specific case. The June 2019 VA examiner opined that the Veteran's bilateral pes planus was congenital in nature. In this regard, the Board notes that generally congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation and are thus not subject to service connection, while congenital diseases, considered still capable of worsening, are subject to service connection. 38 C.F.R. § 3.303(c). However, the Board finds the June 2019 VA examination to be of limited probative value. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The June 2019 VA examiner stated that "bilateral pes planus is congenital in nature and was not acquired by military service." 6/28/2019, C&P Exam, p. 6. It is unclear whether the examiner is stating that the Veteran's pes planus is a congenital defect or a congenital disease. Moreover, it is unclear whether the examiner found that it was generally a congenital condition and could never be acquired, or whether it was only congenital in the Veteran's case. If the latter, the examiner gives no rationale to support their conclusion. Further, the June 2019 VA examiner stated that they were "unable to determine without mere speculation" whether the Veteran's pes planus had been subject to superimposed injury or disease in service as the "STR did not indicate injury." 6/28/2019, C&P Exam, p. 6. To be adequate, a VA medical opinion must be factually accurate and reflect consideration of all lay and medical evidence of record. 38 U.S.C. §§ 1154(a), 5107; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); 38 C.F.R. § 3.303. The examiner's response fails to reflect consideration of the Veteran's in-service treatment for capsulitis. 3/13/2013, STR-Medical, p. 6. Accordingly, the Board finds the June 2019 examiner's opinions regarding the etiology and progression of the Veteran's bilateral pes planus to be of minimal probative value. Considering the foregoing, the Board finds that the Veteran's bilateral pes planus clearly and unmistakably preexisted service. However, the evidence does not clearly and unmistakably show that the Veteran's bilateral pes planus was not aggravated by his active service. Indeed, the weight of the probative evidence of record supports a finding that the Veteran's bilateral pes planus was aggravated by his period of active service. Accordingly, the presumption of soundness is not rebutted. As stated, the weight of the probative evidence of record reflects that the Veteran currently suffers from bilateral pes planus that was aggravated in service. Accordingly, the criteria for service connection for bilateral pes planus are met, and the same is hereby granted. 38 U.S.C. §§ 1110, 1111, 1132, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(b). 2. Entitlement to service connection for bilateral knee strain secondary to bilateral pes planus is granted. To establish secondary service connection, a Veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond its natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. The Veteran has a current diagnosis of bilateral knee strain. See 12/02/2015, C&P Exam, p. 17; 6/28/2019, C&P Exam, p. 2; 11/09/2020, Medical Treatment Record Non-Government Facility, p. 3. As discussed above, the Veteran is service connected for bilateral pes planus. Thus, the remaining question is whether the Veteran's bilateral knee strain is proximately due to or aggravated by his bilateral pes planus. A November 2015 VA examiner opined that it was less likely than not that the Veteran's bilateral knee strain is the result of his bilateral pes planus. The examiner stated that "despite notable pes planus with pronation, there is no noted gait alteration [and that] [the Veteran's] history of sports participation during times of being significantly overweight better explains the wear and tear injury to both knees." 12/02/2015, C&P Exam, p. 48. In September 2019 a VA medical examiner opined that "[p]es planus is a disease process with distinct etiology from that of . . . knee pathology. There is no evidence of any relationship between the conditions. Further, the issue surrounding orthopedic pathology resulting in secondary pathology on the contralateral side or above and below the initial condition is vague and unclear." 09/25/2019, C&P Exam, p. 3. The Board notes that the underlying theory of the September 2019 examiner's opinion is that current medical knowledge does not support a causal link between pes planus and knee strain generally, while the November 2015 examiner's opinion rests on the argument that such a link could exist where gait alteration is seen, but that the evidence does not support such a link in the Veteran's specific case. The Veteran has submitted a November 2020 opinion by a private medical provider who states that it is at least as likely as not that the Veteran's bilateral knee strain is due to his bilateral pes planus. The private provider's opinion reflects consideration of the Veteran's reported history of knee strain symptoms, as well as an explanation of the underlying principles of medical analysis underlying his conclusion. In the instant case, the Board is confronted with a highly probative opinion supporting a causal nexus between the Veteran's service-connected bilateral pes planus and his bilateral knee strain, as compared to two VA medical opinions opining against such a causal link on the basis of mutually exclusive medical theories. Accordingly, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's bilateral knee strain is the result of his service-connected bilateral pes planus. Therefore, the Board concludes that the criteria for entitlement to service connection for bilateral knee strain secondary to bilateral pes planus are met, and the same is hereby granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Entitlement to service connection for a right ankle disability, characterized as achilles tendon tear and instability of the right ankle, claimed as secondary to bilateral pes planus is denied. In pertinent part, the Board's February 2019 remand directed that the Veteran's right ankle claim be remanded to obtain a VA medical opinion as to whether an aggravating relationship exists between the Veteran's claimed right ankle disability and his bilateral pes planus. The Board finds that this issue was adequately addressed by VA examiners in June 2019 and September 2019, discussed below. Accordingly, the Board concludes that there has been substantial compliance with its February 2019 remand directives and adjudication of the Veteran's right ankle claim is appropriate. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The Veteran's appeal in this case is based primarily on the theory of secondary service connection, as he contends that he had an injury after discharge from active service that resulted in surgical repair and residuals. However, the Board notes that the June 2019 VA examiner opined that the Veteran's right ankle disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale was that service treatment records do not show any right ankle symptoms or treatment and the Veteran reported that his injury, Achilles tendon tear, did not occur until 2005 and occurred due to a misstep. The Board finds this opinion probative for purposes of direct service connection. Regarding secondary service connection, to establish entitlement a Veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond its natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. A November 2015 VA examination reflects a diagnosis of right achilles tendon tear. 12/02/2015, C&P Exam, p. 3. A June 2019 VA examiner characterized the disability as right achilles tendon tear with instability of the right ankle. 06/28/2019, C&P Exam, p. 3. The remaining question is whether the Veteran's current right ankle disability is the result of an event, injury, or occurrence during his active service, or is proximately due to or aggravated by a service-connected disability. The Veteran's STRs do not reflect any in-service injury to his right ankle. In November 2015 the Veteran reported a history of a right ankle injury post-service in 2005. 12/02/2015, C&P Exam, p. 3. A June 2019 VA examiner opined that the Veteran's right ankle disability was less likely than not the result of his bilateral pes planus, stating that there was no medical literature to support the contention of a causal link between the two disabilities. 06/28/2019, C&P Exam, p. 4. A September 2019 VA examiner similarly opined that there is no evidence reflecting, in general, a link between pes planus and ankle pathology. 09/25/2019, C&P Exam, p. 4. The examiner cited to a 2005 study finding "no evidence for injury on the contralateral side of the body or above and below to be resulting from the initial injury." Id. (Continued on the next page) Considering the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran's right ankle disability, characterized as achilles tendon tear and instability of the right ankle, was incurred in, or aggravated by his active service, to include being proximately due to or aggravated by a service-connected disability. Accordingly, the criteria for service connection for a right ankle disability, to include as on a secondary basis, are not met, and the same is hereby denied. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.