Citation Nr: 21075767 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-31 124 DATE: December 21, 2021 REMANDED Entitlement to service connection for a foot condition, including bilateral pes planus, is remanded. REASONS FOR REMAND The Veteran was a member of the Army Reserve from March 1997 to March 2005. He had active duty from April 1997 to June 1997 and from May 1998 to August 1998. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from an April 2017 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO"). The Board notes that a hearing was scheduled for September 2019, for which the Veteran was notified in August 2019. However, the Veteran did not appear for the hearing. Furthermore, the Veteran did not request to reschedule or provide any reason why the Veteran failed to appear. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). Entitlement to service connection for a foot condition, including bilateral pes planus, is remanded. Initially, the Board notes that the February 2017 private treatment record from Patient First, Alexandria, indicates assessment of plantar fascial fibromatosis and mild hallux valgus deformity. Therefore, the Board finds that the Veteran's filing of claim for bilateral pes planus encompasses any foot condition because a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). Rather, "[a] claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability." Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Hence, to allow for the most favorable review of the evidence and the claim, the Board is recharacterizing the issue as "entitlement to service connection for a foot condition, including bilateral pes planus." The Veteran contends that he had bilateral pes planus that was aggravated during military service. In the May 2018 Form 9, Appeal to Board of Veterans' Appeal, the Veteran asserted that his bilateral pes planus, which was noted at entrance examination, progressed and was aggravated during service, and it was not asymptomatic while serving in the Army Reserves. He also alleges that his VA compensation and pension examination was not proper. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is no question as to whether the Veteran's bilateral pes planus preexisted military service as the Veteran's March 1997 entrance examination revealed a notation of mild pes planus. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held 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. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306 (b). Clear and unmistakable evidence is defined as obvious or manifest. See 38 C.F.R. § 3.306 (b). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). 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 condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Here, the Veteran clearly had asymptomatic pes planus prior to his entrance into active service. At his March 1997 enlistment examination, the examiner noted that the Veteran feet were abnormal and that he had mild asymptomatic pes planus. As such, bilateral pes planus was clearly noted on entry. Therefore, the question is whether the evidence of record indicates there was an increase in the severity of the Veteran's bilateral pes planus during service for the presumption of aggravation to attach. The RO afforded the Veteran a VA examination in March 2017, during which the Veteran reported that he has bilateral flat feet and plantar fasciitis since 1998, which are painful when walking, also he has burning pain in the heels when he gets up in the morning. The examiner noted bilateral pes planus and plantar fasciitis and opined that the claimed condition which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. As a rationale, the examiner stated that no foot condition was noted during years of service and there is no evidence of current, chronic, and continuous treatment and care. A nexus has not been established. The Board finds the March 2017 VA medical opinion inadequate to decide the issue on appeal because the opinion was based on incorrect factual premises. The examiner stated that there was no foot condition noted during years of service. Whereas the Board notes that the March 1997 enlistment examination has notation of mild asymptomatic pes planus and the March 2002 Army Reserve retention examination has notation of mild symptomatic pes planus, and pain and burning sensation in heels. Furthermore, the rationale provided by the examiner is very conclusory without adequate explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Additionally, the Board notes that "clear and unmistakable," is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that "clear and unmistakable evidence" means that the evidence "cannot be misinterpreted or misunderstood, i.e., it is undebatable"). Hence, the Board finds that a remand is warranted to obtain a new VA medical opinion with clear rationale and adequate analysis on the nature and etiology of a foot condition, including bilateral pes planus. The matter is REMANDED for the following action: 1. Obtain a new medical opinion on the nature and etiology of the Veteran's foot condition, including bilateral pes planus. Further in-person examination of the Veteran is left to the discretion of the clinician providing the opinion. If the clinician deems a new examination is necessary for providing an opinion, then such an examination should be scheduled. The examiner should be provided with access to the claims file, including the copy of this remand. 2. After reviewing the claims file and copy of this remand, the examiner should address the following: (a) Provide a diagnosis for any bilateral foot disability demonstrated since service or in the record, to include bilateral pes planus. In this regard, the examiner should consider the notation of mild asymptomatic pes planus in the March 1997 enlistment examination. (b) Was the Veteran's current bilateral pes planus disability, which was noted on entry to active service, at least as likely as not aggravated (i.e., permanently worsened beyond its natural progression) by active duty service? In this regard, the examiner should consider the Veteran's complaints of pain and burning sensation in heels and notation of mild symptomatic pes planus in the March 2002 Army Reserve retention examination. (c) For each bilateral foot disability, other than bilateral pes planus, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran's service or is otherwise etiologically related to the Veteran's service. In providing the above opinions, the examiner is advised to consider and address the evidence associated with the claims file with entry dated (i) 12/17/2014, titled, "STR Medical," page number 60 of 73 containing the March 1997 enlistment examination that noted mild asymptomatic pes planus; page number 56 of 73 containing the March 2002 Army Reserve Retention examination that noted mild symptomatic pes planus; page 62 of 73 containing the March 2002 Army Reserve retention examination that noted flat feet, pain and burning feeling in heels; (ii) 06/07/2017, titled, "Medical Treatment Record Non-Government Facility," page number 9 of 10 containing the February 2017 private treatment record from Patient First, Alexandria that noted plantar fascial fibromatosis and mild hallux valgus deformity and pain in right heel; (iii) 03/13/2017, titled "C&P Exam," containing the March 2017 VA examination, during which the examiner noted diagnosis of bilateral pes planus and plantar fasciitis, and the Veteran's reports of pain and burning sensation in heels. A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.