Citation Nr: 21007573 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 19-37 163 DATE: February 10, 2021 REMANDED Entitlement to service connection for a left ankle condition is remanded. REASONS FOR REMAND The Veteran served in the reserves, including on active duty for training (ADUTRA) from September 1965 to February 1966 and periodically at other times from June 1966 to June 1971. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, in support of this claim, the Veteran testified at a “virtual” hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. Entitlement to service connection for a left ankle condition is remanded. In his hearing testimony and other pleadings, the Veteran says he only mentioned flat feet (pes planus) when examined for enlistment, conceding he checked the box for that, but also says the pain in his left ankle started during his basic training and was much more severe than (“nothing like”) any he had experienced before service. He says he injured his left ankle on the very first day of basic training (during ACDUTRA) and, from that point on, all the way through basic training, he had issues with this ankle. He says his sergeant saw what happened (meaning that initial injury) and never really gave him any problems about it, i.e., made accommodation. But soreness and swelling persisted and, after a number of visits with doctors, they wanted to shave a portion of the bone to alleviate the pressure, but he went ahead and did his advanced individual training (AIT), however, after a couple of months was told he was being prematurely medically discharged for the convenience of the government rather than having him undergo the suggested surgery. However, he adds that order later was rescinded and that he was allowed to complete his term of service (obligation). He further testified that, during his service, he was allowed not to wear boots at times and given inserts, but when questioned more about that, he said it was because of his flat feet (pes planus), not owing to his left ankle injury, per se. The Veteran went on to testify that, ever since that injury in service, has had to be careful when maneuvering this ankle – although he can do things like golf, etc., such as if the takes a cart. He testified that he also saw doctors right after service, and none of them could come up with a solution. A more recent doctor asked him when he broke his foot, and he responded that he never knew he broke his foot, so he believes it may be due to his left ankle injury in service since no other possible explanation because no other injury (i.e., no intervening or “intercurrent” injury) since his service. He explains that, over the years since service, he has continually aggravated the problem that started during his service, so it has been a continual or recurring issue, to the point that he now has arthritis in this ankle. The doctors who have been asked to comment have concluded the arthritis is from: 1) simple aging or 2) owing to a congenital abnormality (malformation), but in response the Veteran’s representative argued during the hearing that the examinations and opinions are inadequate or the underlying reasoning flawed since internally contradictory or inconsistent. The representative also maintains the Veteran has had consistent complaints referable to his left ankle since his service, even more so than in relation to any other joint, although they, too, have arthritis in them. Typically, a Veteran is presumed to have been in sound health when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only conditions actually recorded in entrance examination reports are considered as "noted." Crowe v. Brown, 7 Vet. App. 238, 245 (1994). See also Quirin v. Shinseki, 22 Vet. App. 390, 394, 396 (2009). If a disability was not noted at entrance into service, then to rebut the presumption of soundness at service entrance there must be clear and unmistakable evidence both of the condition's preexistence and that it was not aggravated during or by the Veteran's service. Conversely, if a pre-existing disability was noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on him, and not VA, to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306. A pre-existing injury or disease will be considered to have been aggravated by service when 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. Generally, congenital or developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA's General Counsel has held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306.   Also, according to the VA General Counsel's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. The service treatment records (STRs) include the report of his May 1965 pre-enlistment examination noting his self-indication of foot trouble. That examination revealed that his knees and ankles ached, especially at the end of the day. A December 1965 x-ray examination revealed that his left ankle showed a bony prominence that was not present on the right ankle. The evaluating physician diagnosed pes planus and referred the Veteran for an orthopedic examination. The Veteran also sought treatment for his left ankle condition while not on ACDUTRA. A November 1966 private physician noted that, prior to his admission into the military service and on performing his duties, the Veteran did not have any difficulty with his foot. An x-ray revealed an incomplete calcaneal navicular coalition with a near complete calcaneal scaphoid coalition. The evaluating physician concluded the Veteran’s symptoms are probably related to this congenital variant in his foot. A more recent February 2018 VA examiner opined that the evidence of pes planus documented as early as 1966 in the military is 50 percent or greater the cause of the ankle pain due to the excessive pronation and loss of arch, thus leading to changes in gait mechanism and issues with the ankle joint. A November 2018 VA examiner opined that it is less likely than not the left ankle condition was incurred in or caused by the left ankle pain during service. This VA examiner reasoned that the Veteran’s current diagnosis of arthritis is more likely related to the natural progression of this condition and therefore the aging process is likely a cause of the current severity of his condition. But the Board finds this rational inadequate since it does consider the Veteran’s numerous complaints of left ankle pain while in service. The presumption of soundness does not apply to a congenital defect noted during the Veteran's time in service. See Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, VA's Office of General Counsel has distinguished between congenital or developmental defects (for which service connection is precluded by regulation) and congenital or hereditary diseases (for which service connection may be granted if the disease initially manifested in or was aggravated by service). See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other Federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2. However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. If it is determined that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. VA must show by clear and unmistakable evidence that a congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel also has confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases that either first manifest themselves during service or that preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990). In short, service connection is available for congenital diseases (but not defects) that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe, 4 Vet. App. At 515. In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that, in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted and, if so, whether there was aggravation during service. Id., at 395. Although, as mentioned, the Veteran already had a VA examination concerning this claim in February 2018 and November 2018, those VA examiners did not address whether the Veteran's left ankle condition is subject to superimposed disease or injury, and if that superimposed disease or injury occurred during his military service, whether there is resultant additional disability. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Schedule the Veteran for another VA compensation examination to fully assess the nature and etiology of his left ankle condition. The examiner must review the relevant evidence in the claims file, including a complete copy of this REMAND. A complete history of symptoms should be elicited from the Veteran. Thereafter, the examiner is asked to explain whether this condition is related to the left ankle/foot pain noted during the Veteran's military service. To this end, the examiner should provide an opinion on the following: (a) Is there clear and unmistakable evidence that a congenital left ankle condition existed prior to the Veteran's entry into military service? (b) If a pre-existing left ankle condition is identified by evidence, is the condition a congenital "defect" or a congenital "disease"? To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a static condition not considered capable of improving or deteriorating. (c) For any diagnosed left ankle condition that is a congenital defect, which necessarily predated the Veteran's service, is it at least as likely as not (50 percent or greater probability) that there was a superimposed injury or disease in service that resulted in additional disability? (d) For any diagnosed left ankle condition that conversely is a congenital disease, is it (i) clear and unmistakable that the condition pre-existed the Veteran's military service? If so, is it also (ii) clear and unmistakable that the pre-existing disease WAS NOT aggravated during or by the Veteran's military service (i.e., permanently worsened beyond the condition's natural progression)? (e) For any left ankle condition that is not a congenital defect or disease, is it at least as likely as not (50 percent or greater probability) that the condition was incurred during the Veteran's service or is otherwise causally related to his service?   In providing these opinions, the examiner must adequately consider and address the pertinent evidence of record, to include: the Veteran's lay statements and hearing testimony; the STRs; also the February 2018 and November 2018 VA examination and opinion; as well as any other pertinent treatment records/opinions. "Clear and unmistakable evidence" is a more formidable evidentiary burden of proof than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence."). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). The term "at least as likely as not" does not mean merely "within the realm of possibility." Rather, it means that the weight of the medical and other evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. When responding, whether favorably or unfavorably, it is essential the examiner provide rationale preferably citing to evidence in the file supporting conclusions and/or accepted medical authority.   If an opinion cannot be rendered without resorting to mere speculation, the examiner must explain why a sufficiently definitive response cannot be provided. In other words, merely saying he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.