Citation Nr: A21020430 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 200728-100648 DATE: December 22, 2021 ORDER New and relevant evidence having been received, the petition to readjudicate the claim of service connection for pes planus of the left foot (left foot disability) is granted. New and relevant evidence having been received, the petition to readjudicate the claim of entitlement to service connection for a left ankle disability is granted. Entitlement to service connection for a left foot disability is granted. Entitlement to service connection for a left ankle disability as due to a service-connected left foot disability is granted. FINDINGS OF FACT 1. The record evidence shows that the Veteran submitted new and relevant evidence on the issues of service connection for a left foot disability and a left ankle disability. 2. The record evidence shows that a left foot disability was noted at service entrance and increased in severity during service. 3. The record evidence shows that the Veteran's service-connected left foot disability caused or aggravated his left ankle disability. CONCLUSIONS OF LAW 1. The criteria for readjudication of the claims of service connection for a left foot disability and for a left ankle disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501(a). 2. After resolving any reasonable doubt in the Veteran's favor, the criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 3. The criteria for service connection for a left ankle disability as secondary to a service-connected left foot disability have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to October 1979. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), issued after the implementation of the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). Within the framework of the AMA, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Hearing docket in July 2020. In August 2021, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge. A copy of the transcript of that hearing has been associated with the claims file. Under the hearing option, the Board only may consider the evidence of record at the time of the appealed rating decision as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board also notes that the Veterans Law Judge who conducted the hearing is not required to adjudicate the appeal under the AMA. New and Relevant Evidence New and relevant evidence having been received, the petition to readjudicate the claims of entitlement to service connection for a left foot disability and for a left ankle disability is granted. By way of history, the Veteran filed a claim of service connection for a left ankle disability and requested to reopen a previously denied claim for service connection for a left foot disability in February 2001. In a January 2002 rating decision, the RO determined that new and material evidence adequate to reopen the Veteran's claim for entitlement to service connection for severe pes planus of the left foot had not been submitted. The RO determined that, although evidence submitted in connection with the claim was new, it was not directly relevant to the issue considered. As a result, the claim for service connection for severe pes planus of the left foot could not be reopened. The RO explained that, to reopen his claim, the medical evidence must show that the Veteran's severe pes planus of the left foot which pre-existed service was aggravated by his short period of active service. The RO also denied the Veteran's claim of entitlement to service connection for a left ankle condition as secondary to severe pes planus of the left foot in the January 2002 rating decision. The RO determined that the Veteran's left ankle disability was a residual of his left foot disability which preexisted service with no aggravation shown in service. The RO explained that service connection was denied on a direct and secondary basis because service connection for severe pes planus of the left foot had been denied previously. The Veteran was notified of the January 2002 rating decision in February 2002. He did not submit a valid notice of disagreement (NOD) with the January 2002 rating decision. And no new and material evidence was received by VA within one year of the issuance of the notice of that decision. As such, the January 2002 rating decision became final. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011). The Veteran next submitted a request to reopen his claims for entitlement to service connection for a left foot disability and a left ankle disability in September 2018. In the January 2019 rating decision, the RO denied the request to reopen the claims of service connection for pes planus, left foot, or a left ankle condition because, although updated VA treatment records were added to the claims file, that evidence was not considered material because it did not relate to an unestablished fact necessary to substantiate the claims and/or raise a reasonable possibility of substantiating the claims. The Veteran was notified of the January 2019 rating decision in a February 2019 letter. In August 2019, he submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, in accordance with the AMA. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501. In an April 2020 rating decision, the RO determined that there was insufficient evidence to warrant readjudication of the claims of service connection for pes planus of the left foot and a left ankle condition. As noted above, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in July 2020 and elected the Hearing docket. Pursuant to 38 C.F.R. § 3.2501, a claimant may request readjudication of a claim by submitting a Supplemental Claim supported by new and relevant evidence. In such cases, the question of finality is not before the Board. Rather, the Board must determine as a preliminary matter whether new and relevant evidence was received in order to readjudicate the claim. Thus, the question in this case is whether new and relevant evidence was added to the claims file after the Veteran filed his Supplemental Claim in August 2019. The evidence of record when the Veteran submitted his Supplemental Claim included service treatment records (STRs), service personnel records (SPRs), VA treatment records dated from January 2001 through January 2019, and a statement from him dated in January 2001. Evidence added to the claims file during the applicable evidentiary periods includes updated VA treatment records, private treatment records, a private medical opinion from Dr. J. P. dated in July 2019, VA medical opinions dated in October 2019, VA examination reports and medical opinions dated in January 2020 and March 2020, and an August 2021 Board hearing transcript. In the July 2019 medical opinion, Dr. J. P. opined that he was absolutely certain that it was at least as likely as not that the Veteran's current left foot disability was connected to his military service. In this regard, Dr. J. P. explained that the Veteran's in-service training placed excess demand on his already limited ankle joint, which resulted in severe arthritic changes to his left foot. The Board next notes that, in the March 2020 VA medical opinion, the examiner opined that it was at least as likely as not that the Veteran's left ankle disability was caused by, the result of, or aggravated by the left foot disability. The Board finds that this evidence is new because it was not previously before the agency decision makers and it is relevant because it directly relates to the issues of service connection for a left foot disability and a left ankle disability. Accordingly, new and relevant evidence has been received in order to readjudicate the Veteran's claims for entitlement to service connection for a left foot disability and a left ankle disability. Thus, the Veteran's petition to readjudicate his claims is granted. Service Connection 1. Entitlement to service connection for a left foot disability is granted. During his August 2021 Board hearing, the Veteran testified that his diagnosed left foot disability was aggravated by the road marches, daily five mile runs, and rigorous physical training he was required to perform during service. He reported that his left foot would swell when he participated in five mile runs and in seven, fourteen, and twenty-one-mile road marches and indicated that his left foot showed signs of aggravation when he walked seven consecutive miles. He also reported that, although he was able to perform the road marches without assistance while he was serving on active duty, they caused him to experience great pain in his left ankle and foot. He further testified that he tried to push forward without medical treatment and indicated that he initially attempted to manage his symptoms by soaking his foot in hot water. He sought treatment for his left foot disability towards the end of his training. He testified that military medical personnel told him that his pes planus would prevent him from advancing in service. He subsequently went before a medical board and was discharged. See August 2021 Hearing Transcript, pages 4-8. A review of the STRs shows that he reported left foot pain during his May 1979 enlistment report of medical examination and the examiner indicated that he had mild pes planus of the left foot. In August 1979, he stated that his left ankle had been swollen and painful for three weeks. He also reported soreness in his left foot. On examination, the examiner noted that the Veteran had grade four bilateral pes planus and indicated that pain prevented weight bearing and normal motion. The assessment was rigid pes planus and the examiner referred the Veteran to the podiatry clinic for a separation evaluation. A narrative summary dated seven days later shows that he endorsed severe pain of the left ankle and foot. The examiner noted that the Veteran had a very flat left foot since birth and began experiencing related problems since he was 10 years old. Diagnoses included talus plantar flexed, navicular on traverse plane, and severe pes planus of the left foot. A September 1979 podiatry clinic consultation report shows that the Veteran reported experiencing painful flat feet and painful bone arches since he was approximately 10 years old. The assessment was severe pes planus. Thereafter, medical board proceedings dated in September 1979 show that he was found medically unfit for further military service in accordance with medical fitness standards. To this end, the medical board determined that his pes planus of the left foot was not incurred in the line of duty, caused by an in service incident, or aggravated by his active duty service. Rather, the medical board indicated that the severe pes planus of the left foot existed prior to his entry on active duty and was not service aggravated. A review of the SPRs shows that the Veteran submitted an application for expeditious discharge in September 1979. On the application, he stated that he was not considered qualified for retention in service by reason of physical disability which had been found to have existed prior to his enlistment and which was neither incident to nor aggravated by his active duty service. A review of the post-service treatment records shows a private medical opinion from Dr. J. P. dated in July 2019. Dr. J. P. reported that he was treating the Veteran for left foot arthrosis secondary to a pes planus deformity and opined that he was absolutely certain that the Veteran's diagnosed left foot disability was at least as likely as not connected to his active service. In support of his opinion, Dr. J. P. acknowledged that the Veteran was diagnosed with a severe pes planus deformity prior to his active duty service but found that the in-service training created excess demand to his already limited ankle joint which resulted in severe arthritic changes to his left foot. In addition, Dr. J. P. noted that the Veteran underwent a surgical procedure years later which resulted in a complete fusion of his hind foot which caused decreased mobility and motion of his ankle joint. VA obtained a medical opinion concerning the etiology of the Veteran's left foot disability in October 2019. Following a review of the medical data and medical literature, the examiner opined that it was less likely as not that the diagnosed pes planus of the left foot was caused by, a result of, or aggravated by the Veteran's active duty service. In support of this opinion, the examiner noted that the STRs showed that the Veteran had severe pes planus of the left foot prior to entering service and began experiencing noticeable symptoms when he was 10 years old. The examiner also stated that the Veteran had no acute trauma in service with the mechanism of the injury to aggravate his pre-existing pes planus and explained that pes planus was a chronic disability that would be expected to worsen over time. The Veteran underwent a VA examination for foot conditions in January 2020. The examiner noted that the Veteran had been diagnosed with bilateral pes planus and degenerative arthritis of the left foot. During the examination, he acknowledged that pes planus was noted on induction but indicated that he began developing increased symptoms during basic training. Specifically, he reported that his pes planus was aggravated when he ran or participated in 21-mile road marches. After performing an examination and reviewing the evidence of record, the examiner opined that it was at least as likely as not that the left foot disability was incurred in or caused by the pes planus of the left foot noted during service. In support of his opinion, the examiner acknowledged that a pes planus deformity was noted upon the Veteran's induction into service but found that he experienced increased symptoms during basic training, primarily during the 21-mile march. In this regard, the examiner acknowledged that the medical board determined that the left foot disability existed prior to service and was not aggravated during service. The examiner found it significant that a September 1979 statement of change of medical status showed that the left foot disability was manifested by a talus plantar flexed, navicular on the transverse plane, and severe pes planus. The examiner also found it significant that medical board proceedings dated in September 1979 indicated that the Veteran had a severe pes planus deformity of the left foot. The examiner referenced Dr. J. P.'s June 2019 medical opinion which indicated that it was at least as likely as not that the Veteran's current disability was connected to his active duty service. The Veteran underwent an orthotics prosthetics consultation in August 2021 to be evaluated and measured for a left ankle foot orthosis, a right custom insert, and orthopedic shoes. The examiner noted that the Veteran had been diagnosed with pes planus of the left foot, hallux valgus of the left foot, and pes planus of the right foot. Following a review of the evidence of record, the Board finds that service connection for a left foot disability is warranted. There is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, the January 2020 VA examiner noted that the Veteran had been diagnosed, in relevant part, with pes planus and degenerative arthritis of the left foot. The August 2021 orthotics prosthetics consultation indicates that the Veteran had been diagnosed, in relevant part, with pes planus and hallux valgus of the left foot. The remaining question is whether the Veteran's left foot disability is related to active service. In this regard, the Board finds that, because mild pes planus of the left foot was diagnosed on the Veteran's May 1979 enlistment report of medical examination, the condition was noted upon entry on to active service. In other words, he is not presumed to have been sound on entrance. 38 C.F.R. § 3.304(b); Verdon v. Brown, 8 Vet. App. 529, 530 (1996). Consequently, the evidence must show an increase in disability during service which would serve to establish a presumption of in-service aggravation for the pre-service disability (mild pes planus of the left foot). See 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). To this end, the Board notes that there are conflicting medical opinions of record as to whether the Veteran's left foot disability is related to service. For example, the October 2019 VA examiner opined that it was less likely than not that the Veteran's pes planus of the left foot was aggravated by active service. This examiner did not address whether there was clear and unmistakable evidence that the Veteran's pre-service disability was not aggravated by service, however, as is required to rebut the presumption of soundness. See 38 C.F.R.§ 3.306(b). Thus, the Board finds that this opinion is not probative on the issue of whether a left foot disability is related to active service. Conversely, the Board finds the July 2019 private medical opinion from Dr. J. P. and the January 2020 VA medical opinion to be the most probative evidence of record. These opinions are based on a thorough review of the record, supported by adequate rationale, and consistent with the evidence of record. They also support granting service connection for a left foot disability. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). They also support granting service connection for a left foot disability (which existed prior to service) based on in-service aggravation of pre-service disability. In other words, the record evidence does not show by clear and unmistakable evidence that the Veteran's pre-existing left foot disability was not aggravated by active service. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for a left foot disability is warranted. 2. Entitlement to service connection for a left ankle disability as due to a service-connected left foot disability is granted. During his August 2021 Board hearing, the Veteran testified that his left ankle disability was caused by his left foot disability. He reported that his left ankle disability was aggravated by the road marches, daily five mile runs, and rigorous physical training he was required to perform during service. See August 2021 Hearing Transcript, pages 3-5. The evidence of record includes an October 2019 VA medical opinion concerning the etiology of the Veteran's left ankle disability. Following a review of the medical data and medical literature, the examiner opined that it was less likely than not that the left ankle disability was caused by, a result of, or aggravated by the Veteran's active service. In support of his opinion, the examiner noted that the STRs showed that the Veteran began experiencing left ankle pain prior to entering service and he had a history of a very flat left foot with noticeable problems manifesting when he was 10 years old. The examiner further noted that the Veteran did not sustain any acute trauma in service with mechanism of injury to aggravate his preexisting left ankle disability. This examiner also noted that the Veteran underwent left ankle surgery for triple arthrodesis and explained that the severe pes planus of the left foot would be expected to worsen his left ankle symptoms. The Veteran underwent a VA examination for ankle conditions in March 2020. The examiner noted that the Veteran had been diagnosed with degenerative arthritis of the left ankle. During the examination, he reported that he had been experiencing left ankle symptoms for many years and noted that he underwent a triple arthrodesis in 2012. After performing the examination and reviewing the evidence of record, the examiner opined that it was at least as likely as not that the left ankle disability was caused by, a result of, or aggravated by his pes planus of the left foot. In support of his opinion, the examiner noted that the pes planus of the left foot put additional stress on the left ankle and noted that the Veteran underwent a left triple arthrodesis in 2012 which limited the range of motion in his left ankle. The Board finds that there is sufficient evidence showing that the Veteran meets the threshold criterion for service connection of a current disability. See Boyer, 210 F.3d at 1351. Specifically, the March 2020 VA examination report shows that the Veteran had been diagnosed with degenerative arthritis of the left ankle. The remaining question is whether the Veteran's left ankle disability is related to service. The Board finds the October 2019 and January 2020 VA medical opinions to be the most probative evidence of record on the issue of whether a left ankle disability is related to active service, including as due to a service-connected left foot disability. Although the October 2019 VA examiner opined that it was less likely as not that the left ankle disability was caused by, a result of, or aggravated by active service, he also noted that the Veteran underwent left ankle surgery for triple arthrodesis in 2012 and opined that his severe pes planus of the left foot would be expected to worsen his left ankle symptoms. The March 2020 VA examiner opined that it was at least as likely as not that the Veteran's left ankle disability was caused by, a result of, or aggravated by his service-connected left foot disability. In support of this opinion, the examiner noted that the Veteran's left foot disability put additional stress on his left ankle and noted that the Veteran underwent a left triple arthrodesis in 2012 which limited the range of motion in his left ankle. The Board finds that the October 2019 and March 2020 VA examiners' opinions concerning the etiology of the Veteran's left ankle disability were based on a thorough review of the record, are supported by reasoned analyses of medical facts, and are consistent with the evidence of record. See Stefl, 21 Vet. App. at 120. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for a left ankle disability as due to a service-connected left foot disability is granted. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.