Citation Nr: 21070774 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-11 342 DATE: November 26, 2021 ORDER Service connection for bilateral pes planus, to include as secondary to residuals of cold injury with neuropathy to both feet and residuals of right foot navicular fracture is denied. FINDING OF FACT The weight of the evidence of record reflects that the Veteran's bilateral pes planus was not incurred in or otherwise related to his active duty service, to include having been caused or aggravated by his service-connected residuals of cold injury with neuropathy to both feet and residuals of right foot navicular fracture. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army on active duty from February 1971 to November 1972 and from February 1977 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter also has a lengthy procedural history that has been outlined in detail in prior Board decisions, the details of which are included herein by reference. Addressing the most recent and relevant procedural history, in October of 2020, the United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Remand (JMR) in response to the Veteran's appeal of the Board's December 2019 denial of his claim. In the JMR, it was stated that: In September 2018, the Board remanded the pes planus claim for additional development because a November 2014 examiner failed to address whether Appellant's bilateral pes planus was secondary to his service-connected residuals of cold injury with neuropathy to both feet as well as whether the Veteran's bilateral pes planus was aggravated by his service-connected right foot navicular fracture and/or residuals of the cold injury. Another opinion was obtained in January 2016, but no opinion was provided regarding the etiology of Appellant's bilateral pes planus or its relation to his service-connected disabilities. Unfortunately, the opinion obtained in January 2019 only addressed whether Appellant's bilateral pes planus was secondary to or aggravated by his service-connected cold-injury residuals. In addressing whether the Veteran's bilateral pes planus condition was aggravated beyond natural progression by his service-connected disabilities, the January 2019 examiner merely restated his secondary service connection opinion from page 109 and added, "therefore, an aggravation [opinion] beyond normal [natural] progression is not plausible," on page 110. In March of 2021, the Board again remanded the claim for additional development, to specifically to include obtaining an addendum VA opinion in order to comply with the JMR. The Board asked for nexus opinions on both direct and a secondary basis. In April 2021, a VA clinician provided the requested opinion. Specifically, the April 2021 provided negative secondary and direct nexus opinions. Regarding the secondary service connection component of the claim, the examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's bilateral pes planus was proximately due to or the result of Veteran's service connected condition. The VA examiner opined that while the record contains a February 1978 visit showing the Veteran was out in the field for four (4) days and had a cold weather injury to both feet, the literature has not shown a direct causal relationship between a cold weather injury and fallen arches (pes planus). The examiner noted that a February 2010 physical examination showed bilateral fallen arches, and an assessment of flat feet was provided, as well as a diagnosis of obesity and body mass index (BMI) of 36.8. The April 2021 examiner concluded that the Veteran's bilateral pes planus, diagnosed in 2010, is less likely than not related to the unilateral right foot navicular fracture. The examiner reasoned that while the literature supports fractures of the foot including the navicular bone can lead to pes planus, if this were the etiology of the veteran's pes planus it would only affect the right foot, and the Veteran was diagnosed with bilateral pes planus in 2010. Thus, a secondary nexus is not established. The April 2021 VA examiner also authored a negative direct nexus opinion but provided in relevant part as rationale only that he had reviewed including lay statements. The examiner noted that while the lay statement conveyed the onset of the condition during service, there was no objective evidence of the onset of pes planus during service or within the year following service. The examiner referenced medical examinations, dated in September 1972, October 1976, November 1986 and July 1991, which were negative for pes planus and feet were noted as normal. The examiner indicated that the earliest notation in the records that showed the pes planus condition was diagnosed in 2010. The examiner concluded that there was, therefore, a gap and, thus, a nexus could not be established. In July 2021, the Board remanded the claim finding the April 2021 VA examiner's opinion as to the direct service connection theory of the claim unresponsive to the October 2020 JMR and to ensure substantial compliance with its previous remand instructions. To this end, the Board indicated that while the examiner stated that "[t]here is a gap", the examiner did not attempt to explain the significance of "a gap" in regard to the nature and etiology of pes planus. Significantly, the other rationale offered by the VA examiner is seemingly based on a lack of in-service records and an examiner cannot rely solely on the absence of medical records corroborating an in-service injury or disease as the sole basis for finding no nexus between a current disability and the Veteran's military service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). As such, the Board concluded that it was unable to make a fully-informed decision and requested an additional opinion. In August 2021, a VA examiner provided a negative opinion based on a thorough review of the record, history and physical examination, to includes tests, as well as medical literature. The examiner noted that the Veteran's service treatment records were silent for pes planus, notably his initial entrance and separation examination reports, dated in September 1970 and September 1972, and reenlistment physical in October 1972; his feet were evaluated a "normal." The examiner reported that the Veteran's service treatment records showed treatment for cold weather injury in 1978 and right navicular fracture in 1978 and blisters on his feet in May 1989, all of which were unrelated to his pes planus. The examiner also referenced a periodic physical examination in November 1986 and separation examination in July 1991, wherein the Veteran denied having had any foot trouble and examinations of the feet were "normal." The August 2021 VA examiner further indicated that the post-service record contained no diagnosis of pes planus until February 2010, which was consistent with the Veteran's reports of having been told that he had flat feet during a 2010 or 2011 physical examination. The examiner noted that he had reviewed the Veteran's lay statements that provided a self-diagnosis of pes planus, but that there was no other objective documentation about pes planus or other chronic bilateral foot pain during service that supported his statements. In addition, there was no objective evidence of chronicity of the currently diagnosed bilateral pes planus with calcaneal spur from his time in the service and that the condition did not present in service or until years after service. The Board finds the August 2021 VA examiner's opinion to be of high probative value and the only competent and probative opinion of record. The August 2021 VA examiner's opinion weighs against the claim on both the direct and secondary service connection theories of the claim. This opinion is considered highly probative, as it is shown to have been based on a review of the Veteran's claims file, and as it is accompanied by a sufficient explanation. Notably, the August 2021 opinion adequately explained why the Veteran's bilateral pes planus was not related to service in light of his reports of symptoms for many years, and was not based solely on the lack of post-service medical evidence documenting bilateral pes planus. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). The August 2021 VA examiner's opinion is against the claim on both secondary and direct service connection theories. There is no other opinion of record that is supportive of the claim on either theory. Therefore, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral pes planus, and it is denied. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.