Citation Nr: 21069757 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 14-38 957A DATE: November 19, 2021 ORDER Entitlement to service connection for a right foot/ankle disability, diagnosed as right pes planus, is granted. Entitlement to service connection for a right foot/ankle disability, diagnosed as right hallux valgus, right ankle sprain and right foot sprain, is granted. FINDINGS OF FACT 1. The competent evidence of record reflects that the Veteran's pain associated with his right foot pes planus disability which existed prior to service was aggravated beyond its natural progression by his active military service and the evidence against this finding does not constitute clear and unmistakable evidence to rebut the presumption of aggravation. Thus, resolving all doubt in the Veteran's favor, the Veteran's current right foot pes planus disability was aggravated during his active military service. 2. Resolving all doubt in the Veteran's favor, his pain associated with the right hallux valgus, right ankle sprain and right foot sprain disorders is related to his active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right foot disability, diagnosed as right pes planus, have been met on an aggravation basis. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for right foot disability, diagnosed as right hallux valgus, right ankle sprain and right foot sprain disorders, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1987 to September 1991, with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This claim was previously denied in an April 2018 Board decision because the evidence, specifically an October 2012 VA examination, did not demonstrate that the Veteran had a current right foot/ankle disability. However, in a November 6, 2019, Memorandum Decision, the U.S. Court of Appeals for Veterans Claims Court) set aside the April 2018 Board decision, citing that it did not contain an adequate statement of reasons or bases for the Board's denial. Specifically, the Court found that the Board did not adequately explain why the Veteran's noted right foot/ankle pain did not amount to a disability pursuant to Saunders v. Wilkie. The Court found further error with the Board not addressing the Veteran's contentions regarding a claimed diagnosis for sinus tarsi syndrome. In June 2020, the Board remanded this matter for a new VA examination that fully evaluates the nature and etiology of the Veteran's claimed right foot disorder. This matter was again remanded in July 2021 for additional development necessary to clarify the nature and etiology of the Veteran's current disability and ensure substantial compliance with prior remand directives, which included whether the Veteran's right ankle disability includes sinus tarsi syndrome, and the etiology of all the disabilities that had not been previously addressed. This matter has now been returned to the Board for adjudication. In light of the fact that there are two distinct bases for granting service connection for right pes planus and the remaining diagnosed disabilities, for the sake of clarity, the Board has separated the Veteran's service connection claim into two claims. Service Connection To establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or in air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a), such as arthritis, is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). 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; 38 C.F.R. § 3.304(b). To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). An injury or disease that has been determined to be preexisting will then be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). However, the presumption of aggravation is rebutted where there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In deciding an aggravation claim, after having determined the presence of a preexisting disability, the Board must determine whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 1. Entitlement to service connection for a right foot/ankle disability, diagnosed as right pes planus. The record reflects that the Veteran had a pre-existing bilateral foot disorder (flat foot/pes planus) that was noted as "abnormal" in his service treatment record (STR) at the time of his military enlistment examination in February 1987. Since this disorder was noted upon entry, the Board finds that presumption of soundness with regards to the Veteran's right foot pes planus is rebutted, and as such, a question for consideration is whether it is at least as likely that the Veteran's right foot pes planus disorder was aggravated during active service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). As the presumption of soundness does not apply with regards to this disability, the issue of contention is whether the presumption of aggravation applies and if so, whether there is clear and unmistakable evidence that demonstrates that the Veteran's preexisting right foot pes planus disability did not undergo a permanent worsening beyond the normal progression of the disability during active service. As to the first element of his service connection claim, a current diagnosis, the record reflects that an August 2021 VA examiner confirmed the Veteran's right pes planus diagnosis. Thus, the first element of his claim is satisfied. With regards to in-service aggravation, although there are no documented in-service complaints and treatment specific to his preexisting diagnosed right foot pes planus disability, the Board notes that the Veteran's STRs reflects other symptoms and complaints associated with his right foot and ankle. Specifically, an in-service right foot/ankle sprain in November 1987, and notation of a pulled back muscle from a slip and fall injury in July 1991. The Veteran also contends that he thereafter received inadequate medical attention and follow-up treatment for his right ankle injury which has contributed to his chronic pain and stiffness. See, June 2011 VA 21-526 Veterans Application for Compensation. Further, the record reflects pes planus and hallux valgus diagnoses during an Air Force Reserve enlistment examination on September 23, 1992 (within a year of his active duty exit) and that his pes planus was deemed to be "mild, asymptomatic." The Board finds that giving the Veteran the benefit of the doubt, these referenced in-service documented symptoms of pain/sprain and injury associated with the Veteran's right foot indicate some level of aggravation beyond natural progression, especially since the Veteran's pes planus disability was noted as just "asymptomatic" upon entry, but upon separation he was exhibiting mild symptoms. Thus, the second element of his claim is also satisfied. As to a nexus linking his current right pes planus disability to his military service, the Veteran also asserts that he continues to have right foot pain, post service to present day. However, an April 2021 VA examination finding did not find a nexus, with the examiner stating the following: After performing physical exam and reviewing all medical records it is less likely as not that the veteran's current right pes planus condition which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service event or injury. Records did not show any evidence of chronic foot complaints or any longitudinal complaints of foot pain. The reported foot pain that occurred during service is more likely than not an acute event without evidence of chronic foot pain or progression. Separation exam did not show a significant exam or diagnosis. Veteran claim that he continues to have foot pain is not supported by records or treatment for the foot. Notwithstanding this statement, the Board finds that the VA examiner's conclusion does not rise to the level of "clear and unmistakable evidence" which is needed to overcome the high evidentiary burden to rebut the presumption of aggravation. This is because the examiner did not adequately explain why he found that the Veteran's in-service right foot injury did not aggravate his preexisting pes planus disability and he solely relied on a lack of in-service documentation of treatment for chronic pain as a basis for his negative nexus opinion. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. Furthermore, the evidence of record includes competent, credible treatment records establishing that the Veteran developed other right foot disabilities (discussed below) resulting from his active duty service. Therefore, in weighing the medical evidence, and in failing to satisfy the clear and unmistakable evidence to rebut the presumption of aggravation, the Board finds that service connection for the Veteran's preexisting right foot disability, diagnosed as pes planus, based on aggravation, is warranted in this case. Thus, the Veteran's claim is granted. 2. Entitlement to service connection for a right foot/ankle disability, diagnosed as right hallux valgus, right ankle sprain and right foot sprain. The record reflects that other than his right foot pes planus disability, the Veteran also has current diagnoses of right hallus valgus, right ankle sprain and right foot sprain, which was shown during an August 2021 VA examination. With regard to his right hallus valgus disability, although not initially reflected during the Veteran's initial Disability Benefits Questionnaire (DBQ) Foot examination conducted in October 2012, this disability was confirmed following an x-ray shown during his recent August 2020 DBQ Foot examination. As such, the first element for the Veteran's direct service connection with regards to these other right foot disabilities has been satisfied. The Board notes that the current evidence of record does not reflect a diagnosis of right sinus tarsi. As such, there will be no further analysis with regards to this asserted disability. With regards to in-service occurrence related to these three right foot disabilities, as previously noted, the Veteran's STR reflect a right foot/ankle sprain in November 1987, a notation of a pulled back muscle from a slip and fall injury in July 1991, and a noted July 1996 right foot sprain during his Reserve service. Further, the Veteran was diagnosed with right hallux valgus in September 1992 during a Reserve enlistment examination; thus, such was manifested within a year following his active duty military service. As to nexus, the August 2021 VA examiner collectively found that it less likely than not (less than 50 percent probability) that the Veteran's diagnosed right ankle sprain, right foot sprain, right hallux valgus were incurred in or caused by the right foot sprain on the basis that his STRs are silent for right ankle issues, evaluation, diagnosis or treatment. Although the examiner acknowledged the Veteran's in-service November 1987 right foot sprain, he also commented that there was no clinic visit documentation found for the right foot sprain incident, and that there were not recurrent issues or residuals related to the right foot sprain documented, including that the Veteran acknowledged "No" for "foot trouble" during his July 1991 separation examination. As such, the examiner is primarily relying on a lack of specific subsequent complaints or treatments for these disabilities as a basis for his negative nexus opinion. Specific to the Veteran's right hallux vulgar disability, the examiner also made a finding of a negative nexus, citing, "According to Up to Date, although many theories have been proposed, the precise etiology of hallux valgus deformity is unknown. Hallux valgus deformity is likely multifactorial in origin and includes such factors as abnormal foot mechanics affecting the first ray, abnormal first metatarsophalangeal anatomy, joint hypermobility, and genetic influences. Hallux valgus is also associated with conditions such as inflammatory joint disease." In this case, the examiner is stating another possible basis for the Veteran's right hallux valgus disability, without providing an adequate medical explanation why he is ruling out service connection, in spite of the Veteran's 1992 diagnosis, which was within a year of the Veteran's military exist. Consequently, the Board has also afforded these referenced negative nexus opinions low probative weight with regard to direct service condition for the Veteran's current right hallux valgus, right ankle sprain and right foot sprain disabilities. Further, the Veteran has consistently and competently reported about his ongoing right foot/ankle symptoms during and post service, until present; that he did not seek "official" treatment because such was frown upon; rather, he "self-treated with over-the-counter pain medication." See, September 2021 Correspondence. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same, and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the Board finds the Veteran competent and credible with respect to his observable symptoms and documented in-service occurrences and post service continuity of his symptoms that can be attributed to his current right foot/ankle disabilities, and in light of a lack of direct evidence to the contrary, the Board assigns a high probative value to the Veteran's statements. Therefore, the Board finds that the evidence is at least in equipoise regarding the Veteran's claim, and in giving the Veteran the benefit of the doubt, the Board finds that service connection is also warranted for the Veteran's currently diagnosed right hallux valgus, right ankle sprain and right foot sprain. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.