Citation Nr: 21076394 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-00 951 DATE: December 23, 2021 ORDER Entitlement to service connection for pes planus is denied. REMANDED Entitlement to service connection for a foot disability, other than pes planus, claimed as secondary to pes planus, is remanded. FINDING OF FACT The Veteran's pes planus, which clearly preexisted his active-duty service, was not caused by or aggravated beyond the natural course of the disease by his military service. CONCLUSION OF LAW The criteria for service connection for pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1979 to April 1987. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) May 2013 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran's claims were most recently before the Board in October 2020. At that time, the Board denied the Veteran's claim for entitlement to service connection for pes planus while also remanding the Veteran's claim for entitlement to service connection for a foot disorder, other than pes planus. The Veteran appealed the Board's denial to the U.S. Court of Appeals for Veterans Claims (Court). In August 2021 the Court, pursuant to a Joint Motion for Partial Remand (JMPR), remanded the case for further action consistent with the Court's directives. Specifically, the Court directed the Board to address "favorable evidence from the July 2017 private medical record," as well as determine "whether the record shows evidence of aggravation during service." Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). The Veteran bears the burden of showing that the preexisting condition worsened in service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Until the Veteran shows an increase in disability occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Id; see also Horn v. Shinseki, 25 Vet. App. 231 (2011). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for pes planus The Veteran claims that his bilateral pes planus, otherwise known as flat foot, has been aggravated beyond the natural progression of the disease by his active-duty service. The Board notes that the body of the Veteran's medical evidence shows that his pes planus clearly predates his military service. The Veteran's service treatment records (STRs) from August 1979 show that upon enlistment the Veteran had noticeably bilateral pes planus. The condition is noted in other parts of his STRs, such as at an October 1983 physical examination. However, the Board notes that other than being observed during routine physical examinations, at no point during his active-duty service did the Veteran complain of, or seek treatment for, any foot-related conditions or injuries. Other than occasional complaints of chest pain, the Veteran specifically denied any ongoing or lingering problems at several of his physical examinations. For example, at his October 1983 examination, he denied any medical problems and claimed he is in "fair health." As the Veteran's pes planus clearly preexisted his military service, the only avenue for him to have his condition service-connected is for the evidence to show that his active-duty military service aggravated the condition beyond the natural progression of the disease. 38 U.S.C. § 1153. As noted above, it is the Veteran's duty to show that the condition worsened during his military service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In effect, it is up to the Veteran to establish the presumption of aggravation. In April 2013 the Veteran was seen for a VA examination to determine the etiology of his condition. However, the examiner at the time found that the Veteran "does not in fact have pes planus," but did not offer an explanation as to how the condition could have resolved, nor did they address the symptoms put forward by the Veteran. As such, the April 2013 VA examination is inadequate for adjudication purposes as it is inconsistent with the Veteran's medical history, his post-service medical treatment records, and his own lay statements. In a September 2013 Statement in Support of Claim, the Veteran stated that his feet are "worse" now due to his in-service activities, such as daily running and weekly marches. However, as he is not a medical professional, he is unable to provide competent or credible evidence regarding the progression of a disease as medically complex as pes planus. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He makes similar claims in a December 2015 letter, alleging that his in-service activities would "cause certain aggravate[sic] condition." The Board also notes that post-service, the Veteran worked in a bakery and did postal work post-service, which both require time on one's feet. In February 2014 the Veteran submitted a statement from Dr. T.B., a non-VA Doctor of Podiatry. Dr. T.B. noted that the Veteran's pes planus had "progressive changes" over the course of her treatment of the Veteran, which began in 2011. She also stated that the Veteran's "foot deformity was noted in 1983 to its current medical conditions." She continued, saying that the Veteran was diagnosed with bilateral "plantar fascial pain" and "nerve damage right foot" since around 2012. However, while Dr. T.B.'s statement is probative in that it establishes the diagnoses of the Veteran's foot conditions, as well as the symptoms and their treatment, her statement does not address whether or not the Veteran's military service aggravated his foot condition. At best, her statement can be interpreted as saying that the Veteran's pes planus has persisted since at least 1983 (though as discussed above, the condition was documented well before 1983). In July 2017 the Veteran submitted another statement from Dr. T.B, who noted that the Veteran's conditions are "progressive and degenerative ... that are understandable due to his foot type (pes planus deformity) which was documented in his military medical records." As with her prior statement, Dr. T.B.'s July 2017 statement confirms that the Veteran's condition has persisted since his military service. However, she offers no explanation on whether or not the Veteran's pes planus has worsened specifically due to his military service. The Veteran alleges that the February 2014 and July 2017 statements by Dr. T.B. are proof that the Veteran's pes planus was aggravated by his active-duty service. However, the Board notes that her language of that the Veteran's symptoms are "understandable due to his foot type ... which was documented in his military service records" does not rise to the level of certainty required to establish service connection and do not indicate aggravation in service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bostain v. West, 11 Vet. App. 124 (1998) (collectively holding that language such as "it is possible," "it is within the realm of medical possibility," "could not rule out," "could have been," "may or may not," "may have," and similar generic statements were insufficient). Likewise, her February 2014 description of the Veteran's symptoms, and notation that his condition has progressed since 2011, also fail to rise to the necessary level of certainty required to establish service connection. In medical records submitted to VA in June 2020, the Veteran included an unsigned and undated letter stating that the Veteran's pes planus was "as least as likely as not ... aggravated beyond the normal progression of the condition." The Board addressed this in the prior October 2020 denial, but will do so again here. The unsigned and undated letter has no probative value regarding whether or not the Veteran's pes planus was aggravated by his military service. As a complex medical question, the determination can only be made by qualified medical professionals. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As it stands, there is no way to confirm whether that letter was drafted by a qualified medical professional, by the Veteran himself, or by an unknown third party. The fact that it was submitted alongside competent, credible, and probative medical evidence does not intrinsically transfer the competency, credibility, and probative value to the letter. However, in an August 2021 Appellate Brief, the Veteran's representative argues that the Board must either remand for clarification "or explain why such action [is] not necessary." The Veteran's representative stated that "remand is required" in order to ensure VA's duty to assist is fulfilled. For the reasons discussed below, a further remand to develop the Veteran's claim solely to clarify the propriety of the June 2020 evidence is unnecessary. First, the Veteran is reminded that the duty to assist is a two-way street, and that he has a responsibility to assist the VA in developing his claims. Wood v. Derwinski, 1 Vet. App. 190 (1991). In the present case, the Veteran and his representative have been aware of the Board's reservations about the evidence in question. The Veteran and his representative have had over a year to provide clarification. Furthermore, in the time since the June 2020 submission of the letter in question, the Board has requested, and obtained, medical statements regarding the possible aggravation of the Veteran's pes planus. As such, the Board's, and thus VA's, duty to assist the Veteran has been fulfilled. If the Veteran has evidence in his possession that is beneficial to his case, it is incumbent upon him to submit it for consideration. In December 2020, pursuant to the Board's October 2020 remand, the AOJ obtained an addendum medical opinion regarding the Veteran's bilateral pes planus. The examiner noted that the Veteran's pes planus was "asymptomatic" upon enlistment, and after reviewing the medical evidence the condition remained so "while in service" and at separation. The Veteran's post-service medical records first show complaints of foot issues in 2011, at which time plantar fasciitis and calcaneal spurs were diagnosed (more on these conditions below) as well as confirmation of the continuation of his bilateral pes planus. The examiner concluded that, based on the Veteran's activities in-service, "any aggravation ... would've been evident during service, and certainly at separation." This is due to the fact that "separation exams are notably thorough, especially with respect to the feet." Overall, the evidence "is clear no aggravation occurred during service or proximate to it." The Board finds that the probative, competent, and credible medical evidence of record establishes that the Veteran's bilateral pes planus, which clearly predated his military service, was not aggravated beyond the natural progression of the disease by his active-duty service. The December 2020 VA examiner's opinion has more probative value than the February 2014 and July 2017 statements from Dr. T.B., as the VA examiner addressed the entirety of the Veteran's medical history in coming to their conclusion, as well as using language that rises to the necessary level of certainty as required by McLendon v. Nicholson, 20 Vet. App. 79 (2006). As noted above, while Dr. T.B.'s statements show that the Veteran has sought treatment for pes planus for the last 10 years, she did not provide the necessary level of clarity as to whether the Veteran's condition was aggravated by his active-duty military service. Accordingly, the Veteran's claim for entitlement to service connection for bilateral pes planus must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND Entitlement to service connection for a foot disability, other than pes planus This matter was last remanded in an October 2020 Board Remand. The Remand specifically directed the AOJ to obtain an additional VA opinion to determine whether a current foot disorder, which have been identified as plantar fasciitis, enthesopathy, neuroma, and degenerative arthritis, is etiologically related to service. Subsequently, the VA furnished a December 2020 VA opinion and January 2021 addendum opinion. However, the Board finds that an additional VA opinion with clarification is needed and the Board does not find substantial compliance with its prior remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). Primarily, the Board notes that the VA opinion and addendum failed to address the Veteran's enthesopathy. On remand, the Board requests an opinion as to the etiology of the Veteran's foot diagnoses other than pes planus, to include enthesopathy. Second, the Board notes that the VA opinion and addendum relied on the Veteran's lack of reports or complaints of foot pain and issues with his feet in service. On remand, the examiner is advised that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate medical professional (such as a podiatrist) to determine the etiology of all foot disorders, other than pes planus, present during the period of the claim. Any indicated studies should be performed. A VA examination should be furnished only as deemed necessary. All pertinent evidence of record must be made available to and reviewed by the examiner. With respect to each foot disorder, other than pes planus, present during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder originated in service or is etiologically related to service. The examiner is requested to specifically address the previous diagnoses of plantar fasciitis, neuroma, enthesopathy, and arthritis and the opinions of record. (Continued on the next page) The rationale for the opinions must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. As discrepancies in diagnosis and opinion should be reconciled as needed. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.