Citation Nr: 21074821 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-10 619 DATE: December 16, 2021 REMANDED Entitlement to service aggravation for pes planus is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for a disability manifested by symptoms of dizziness, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had active service from August 1998 to August 2002, from August to November 2008, from January to July 2009 and from August to September 2011. These matters come before the Board of Veterans' (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran's electronic claims folder. All matters are remanded. Pes Planus The Veteran contends that he is entitled to service connection for pes planus because it was caused by his in-service long marches and prolonged standing. See September 2014 Notice of Disagreement (NOD). He contends that he has experienced continuous symptoms since service separation. Id. At an October 2016 Decision Review Officer (DRO) conference, the Veteran testified that his 1998 entrance examination noted asymptomatic pes planus, but a January 2000 service treatment note indicated symptoms of flat feet left greater than right. The Veteran testified that his condition was aggravated by service. At the July 2011 Board hearing, the Veteran testified that his pes planus was aggravated by service to the point that he has to wear orthotics now. In August 2017, the Veteran was afforded a VA foot conditions examination where the examiner opined that the Veteran's pes planus, which clearly and unmistakably existed prior to service, was not aggravated by service. The examiner reasoned that the Veteran's mild pes planus had the typical trajectory for pes planus following physical labor employment. On the Veteran's April 1998 entrance examination, the examiner noted that the Veteran suffered from moderate pes planus. As there was evidence that the Veteran's pes planus was noted on entry, the legal question is whether there is clear and unmistakable evidence that the increase in severity was due to the natural progression of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (explaining that "if a preexisting disorder is noted upon entry into service, the [V]eteran cannot bring a claim for service connection for that disorder, but the [V]eteran may bring a claim for service-connected aggravation of that disorder"). The burden lies with the claimant to establish that the evidence is at least in equipoise as to whether his condition increased in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a); Wagner, supra. If the Veteran meets this burden, then the burden shifts to VA to show lack of aggravation by establishing that the increase in disability was due to the natural progress of the condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); Wagner, supra. Here, the August 2017 VA examiner incorrectly considered the Veteran's employment in concluding that the Veteran's pes planus was not aggravated by service. The Board therefore finds that a remand is necessary to obtain an addendum opinion based on the correct legal standard. Migraines and Dizziness The Veteran contends that he is entitled to service connection for migraines and a disability manifested by dizziness because they were caused by his in-service motorcycle accident. See December 2011 VA Form 21-526EZ/VA Form 21-4138. Specifically, he contends that since the motorcycle accident, he has experienced frequent migraines and dizziness associated with a concussion. Id. The Veteran was afforded a VA TBI examination in September 2013 where the examiner noted that the Veteran had a history of migraines prior to service. The examiner opined that it was less likely than not that the Veteran's TBI was related to service because there was no TBI diagnosis during service. No opinion was provided for the Veteran's migraines or symptoms of dizziness. On his September 2014 NOD, the Veteran stated that the examiner shoulder have considered the whether the Veteran's migraines and symptoms of dizziness were related to his service-connected hypertension. In August 2017, the Veteran was afforded VA headaches and TBI examinations. The examiner opined that the Veteran's headaches preexisted service and were not aggravated by service. The examiner found that the Veteran's headaches were better than they were in the past and therefore the 2011 motorcycle accident did not aggravate the preexisting headache disability. The examiner also opined that the Veteran's symptoms of dizziness were not related to service. The examiner reasoned that the Veteran's symptoms following the motorcycle accident were temporary and that he had a normal neurological examination. At the July 2021 Board hearing, the Veteran testified that following his 2011 motorcycle accident, he experienced an increase in headache symptoms and dizziness, as recent as the day before. The Board finds that the August 2017 VA examination report is inadequate for adjudication purposes as it appears to be based on an inaccurate factual background. The examiner stated that the Veteran's headache symptoms had improved following the motorcycle accident, while the Veteran testified that they had increased in severity. Further, there is no medical evidence which addresses whether the Veteran's headaches and symptoms of dizziness are caused or aggravated by his service-connected hypertension. Therefore, the Board finds that a remand is necessary to obtain an addendum medical opinion which addresses all favorable lay and medical evidence and all relevant theories of entitlement. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the August 2017 examiner (or appropriate medical professional) concerning the Veteran's claim for pes planus. The electronic claims file, including this remand, must be made available to, and reviewed by, the examiner. The examiner is requested to address the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's preexisting pes planus disability (noted on entry examination) increased in severity during his active duty service. (b) If it is determined that the preexisting pes planus disability as likely as not increased in severity during service, then whether it is clear and unmistakable (obvious, manifest, and undebatable) that a pre-existing pes planus disability WAS NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. The Board is returning the matter because the August 2017 VA examiner incorrectly considered the Veteran's employment activities when determining the issue of aggravation. A complete rationale, with citation to appropriate medical principles, is requested. 2. Obtain an addendum opinion from the August 2017 examiner (or appropriate medical professional) concerning the Veteran's claim for migraines and a disability manifested by dizziness. The electronic claims file, including this remand, must be made available to, and reviewed by, the examiner. The examiner is requested to address the following: (a) Opine as to whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran's headaches pre-existed active service. (b) If so, the examiner must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a pre-existing headache disability WAS NOT aggravated (i.e., permanently worsened) during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. (c) If not, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's headaches or disability manifested by dizziness was caused by service, to include due to the 2011 motorcycle accident. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's headaches or disability manifested by dizziness was caused or aggravated by his service-connected hypertension. See September 2014 NOD. (e) If aggravation is found, provide the baseline manifestations prior to aggravation and the increased manifestations due to the service-connected hypertension. A complete rationale, with citation to appropriate medical principles, is requested. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Baskerville 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.