Citation Nr: 21073340 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-49 988 DATE: December 8, 2021 ORDER Entitlement to service connection for pes planus of the right foot is granted. REMANDED Entitlement to service connection for a great right toe disability, to include as secondary to a service-connected disability, is remanded. FINDING OF FACT The Veteran's pre-existing right foot pes planus was aggravated beyond its natural progression during service. CONCLUSION OF LAW The criteria for service connection for pes planus of the right foot are met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to July 1979. He testified before the undersigned in May 2021; a transcript of the hearing is associated with the record. Entitlement to service connection for a right foot disability The Veteran claims that he has a right foot disability that is related to his service. In this decision, the Board addresses the issue of whether pre-existing right foot pes planus disability was aggravated beyond its natural progression by service. The record includes the Veteran's complaints of right toe pain and his description of a specific injury. Thus, the claim before the Board is as characterized on the title page. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The Veteran's May 1974 enlistment examination noted asymptomatic pes planus. Service treatment records show the Veteran reported to medical for a right ankle sprain incurred in a stairwell in September 1975, noting he had a swollen right ankle and foot. An August 1976 podiatry consult noted the Veteran's complaint of foot pain since entering service. He complained of pain over the 1st and 2nd metatarsals; x-ray studies were negative. In December 1976, the Veteran was diagnosed with subtalar varus and foot strain, prescribed orthotics and placed on physical profile. The Veteran was subsequently placed on profile for his pes planus in January, February, March, and April 1977. There is no copy of a physical examination conducted at separation. If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. 38 U.S.C. § 1153. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. Crowe v. Brown, 7 Vet. App. 238 (1994); Hunt v. Derwinski, 1 Vet. App. 292 (1991).The burden falls on the Veteran to establish aggravation. If the Veteran demonstrates a worsening of his condition in service, the burden then shifts to the government to rebut the presumption of aggravation by clear and unmistakable evidence. Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). The Board concludes that the Veteran's preexisting right foot pes planus was aggravated beyond the natural progression by service. 38 U.S.C. §§ 1153, 5107(b). Evidence against the claim includes a June 2016 VA opinion. The examiner noted the Veteran's use of orthotics and his complaint of right foot swelling with activity and without weight bearing activity and diagnosed bilateral pes planus and right foot subtalar varus and foot strain. The examiner ultimately provided a negative nexus opinion, based in large part on a lack of documented treatment since service. In March 2018, a Medical questionnaire was submitted on the Veteran's behalf by a private podiatrist. The provider diagnosed hallux rigidus/limitus right and degenerative joint disease. The provider noted the Veteran used orthotics with a Morton's extension, but that it did not relieve the Veteran of symptoms. The examiner did not provide an opinion. An August 2018 e-mail response, a VA medical reviewer said they reviewed "VBMS and medical literature" and opined that the record provides no objective evidence of the aggravation of pes planus beyond natural progression. The Board affords that opinion no probative value as it did not include any rationale. Evidence in support of the claim in includes June 2021 opinion from a private physician. The provider said they interviewed the Veteran and reviewed his complete record. The Veteran informed the physician that he would run 2 to 3 miles every morning in combat boots for physical training, which aggravated the arch areas of his feet. The Veteran stated that he did not continue to use the orthotics after service because they would not fit. The Veteran reported that after he served, he was able to sit for several years while attending school. Once he entered the work force he decided to "tough it out." In support of this, the Veteran informed the physician that the employment he had did not offer insurance and that he did not have the money or time to seek medical attention as he was the sole provider for his family. The physician opined that the pes planus of the right foot was most likely aggravated by his service. The examiner noted the pes planus was asymptomatic on enlistment and the onset of painful pes planus was "well documented" during service. Thus, it is at least as likely as not that the Veteran's asymptomatic bilateral pes planus was "markedly accelerated" during service and has "progressively deteriorated" since. pes planus was documented as asymptomatic in his entrance examination. In support of the opinion, the provider included a detailed review of the documented treatment during service. The opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no record of an examination at separation from service; thus, no service evidence upon which to compare with the finding of asymptomatic pes planus on enlistment. Upon review of the record, the Board finds that the Veteran's current pes planus of the right foot was aggravated beyond its natural progression in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for pes planus of the right foot is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran's initial claim was for service connection for a "right foot injury." The Board has granted service connection for the right foot pes planus, based on inservice aggravation. Given his complaints of right toe pain and a specific injury in service, the claim for service connection for a right great toe disability is on appeal. Brokowski, 23 Vet. App. at 79. At the May 2021 hearing, the Veteran testified as to the right foot injuries, including a specific injury to his right great toe in 1976. He stated that it occurred on a Friday and he was unable to go to sick call until Monday morning. When he was leaving the barracks, he stated he inadvertently placed weight on his injured toe, which caused his foot to give out, resulting in further aggravation of his right great toe injury. The claim is remanded to obtain a medical opinion. The June 2021 opinion provided in connection with the pes planus is inadequate because the basis is unclear. Some of the treatment cited by the opinion provider are not for the right foot and the ultimate rationale is conclusory. The matter is REMANDED for the following action: 1. Forward copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion on the nature and likely etiology of the Veteran's right great toe disability. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. The examiner is asked to answer the following questions: (a) Is it at least as likely as not that any currently diagnosed right great toe disability was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not that any currently diagnosed right great toe disability is proximately due to (caused by) the Veteran's service-connected right foot pes planus? (c) If (b) is answered no, is it at least as likely as not that any currently diagnosed right great toe disability has been aggravated by the Veteran's service-connected right foot pes planus? Aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.