Citation Nr: 21007736 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-22 144 DATE: February 10, 2021 ORDER Entitlement service connection for pes planus is denied. REMANDED Entitlement to an increased rating for service-connected left knee patellofemoral syndrome, currently evaluated as 10 percent disabling is remanded. FINDING OF FACT The Veteran’s bilateral pes planus disability was noted upon the Veteran’s entry into active duty and did not chronically increase in severity during service. CONCLUSION OF LAW The Veteran’s pre-existing pes planus was not aggravated during active military service. 38 C.F.R. § 38 U.S.C. §§ 1131, 1153, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from September 1985 to May 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision. The Veteran testified at a travel hearing before the undersigned Veteran’s Law Judge in August 2019. A transcript of the hearing is of record. After the hearing, the Veteran’s claim for entitlement for service connection for bilateral pes planus was reopened and remanded by the Board in November 2019. The Board also remanded the claim for a higher rating for the Veteran’s left knee disability. Entitlement to service connection for bilateral pes planus. The Veteran contends that his pre-existing pes planus disability was aggravated by his active duty service, and that the condition has worsened. 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and clear and unmistakable evidence demonstrates that the injury or disease was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2017). When accepted into service, a review of the Veteran’s service treatment records shows that a diagnosis of mild bilateral pes planus with a slight rotation was noted on his July 1985 enlistment examination. There was no treatment which might be related to flat feet in service. The report of a periodic flying physical examination conducted in May 1987 shows that the Veteran’s feet were noted be normal. During his separation examination in February 1988, the Veteran did not report any foot trouble. Examination of his feet at that time was normal. The Veteran confirmed that there was no treatment in service when he testified at the August 2019 hearing. The Veteran testified that the pain in his feet became more severe throughout service, and the reason he did not seek treatment in service was simply due to youthful ignorance regarding the condition. As the Veteran’s pes planus was noted on the Veteran’s service entrance examination, the Board finds that the Veteran’s pes planus existed prior to acceptance and enrollment for active military service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304. Thus, the presumption of sound condition does not apply in this case. 38 U.S.C. § 1111. The Board will, therefore, consider whether service connection is warranted on the basis of aggravation of a pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004) (concluding that “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”). A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2017). Clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b) (2017). The presumption of aggravation applies only when the Veteran shows the pre-service disability increased in severity during service. Beverly v. Brown, 9 Vet. App. 402 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017); Falzone v. Brown, 8 Vet. App. 398 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304 (1993); Green v. Derwinski, 1 Vet. App. 320 (1991); Hunt v. Derwinski, 1 Vet. App. 292 (1991). A lasting worsening of the condition that existed not only at the time of separation, but one that still exists currently, is required. Verdon v. Brown, 8 Vet. App. 529 (1996). The presumption of aggravation only requires evidence of an actual worsening of a preexisting condition during service. It does not require direct evidence that the worsening was actually caused by service. Smith v. Shinseki, 24 Vet. App. 40 (2010). Therefore, a Veteran must initially establish only that a preexisting condition worsened during service and, at that point, the Veteran has the benefit of the presumption of aggravation. Moreover, the presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation under the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017); Browder v. Derwinski, 1 Vet. App. 204 (1991). If a permanent increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a), (b) (2017). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service beyond its natural progression. Paulson v. Brown, 7 Vet. App. 466 (1995); Crowe v. Brown, 7 Vet. App. 238 (1994). It is the Veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the pre-existing disability increased in severity during service for the presumption of aggravation to attach. See Wagner, 370 F.3d at 1096; Verdon v. Brown, 8 Vet. App. 529, 538 (1996) (stating that the question of whether a preexisting defect or injury underwent an increase in severity “must be answered in the affirmative before the presumption of aggravation attaches”). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence demonstrating that any increase in disability was due to the natural progress of the disease, which burden is on the government. See Wagner, 370 F.3d at 1096; Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); 38 C.F.R. § 3.306 (b). Turning to the merits of the Veteran’s claim, the Board concludes that aggravation has not been established. A review of the Veteran’s service treatment record does not show any complaints or treatment for pes planus. Moreover, the Veteran’s separation examination does not show that the Veteran’s pes planus had increased in severity beyond the mild pes planus noted at service entry. Thus, the Veteran’s service treatment records do not show a worsening of the disability during service. In January 2020, the Veteran was afforded a VA examination for his flat feet. The examiner provided a medical opinion with regard to the Veteran’s claim for aggravation of a condition that existed prior to service. The examiner stated that the Veteran’s medical records do not support that the claimed bilateral foot disability, which clearly and unmistakably existed prior service, was aggravated beyond its normal and natural progression by any in service illness, event, or injury. The examiner opined further that on the Veteran’s enlistment exam he was asymptomatic and that this is his baseline. The Veteran did not have any chronic or ongoing foot complaints during active duty service and therefore did not show any aggravation of the condition. The examiner opined that it is less likely than not that the Veteran’s flat feet noted during his service entrance exam underwent any increase in severity during his active military service. There were no medical reports of foot problems during service or immediately following separation. The Veteran’s STR’s are silent for any foot disorders and the Veteran did not complain of symptoms in his feet again until many years later after his discharge. Medical treatment records in the Veteran’s file indicate that the first time he sought treatment for bilateral foot pain was in 2000, about 12 years after separating from service. In 2020 the VA examiner indicated that the Veteran’s current foot pain was due to the natural course of his condition. Ultimately, the VA examiner opined that the Veteran’s flat foot condition was clearly and unmistakably not permanently aggravated beyond its natural progression during service. Following the Veteran’s normal separation examination in May 1988 the Veteran did not raise the issue of his bilateral flat foot disability until he filed a claim in August 2003. That was almost 15 years following release from active duty. It is noted that the Veteran does have a 2020 diagnosis of bilateral foot pain as evidenced in his 2020 medical exam, but the issue before the Board is whether or not the Veteran experienced service connected aggravation and not the current state of the Veteran’s foot disorder. The Veteran’s reports are not equivalent to medical opinions. The Veteran is competent to report on the severity of symptoms such as pain in service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating the “[l]ay testimony is competent... to establish the presence of observable symptomatology”). Here, however, the relevant inquiry turns on whether there was a change in the underlying pathology of the pre-existing foot disability, “as distinguished from the mere recurrence of manifestations of the pre-service condition.” Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (stating that “[e]vidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability.”). The Board finds that whether there was a change in the underlying pathology of the Veteran’s pre-existing flat feet is a medical determination. Because the Veteran is a lay person without the appropriate medical training and expertise, he is not competent to state that there was a change in the underlying pathology of his pre-existing pes planus condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). The Veteran’s disability did not manifest as a service connected aggravation. Upon a review of the evidence of record, the Board finds that there is no evidence demonstrating that the Veteran’s pre-existing pes planus underwent an increase in severity or chronically worsened (i.e., underwent a permanent increase in the underlying pathology beyond the natural progression) during his military service. The service treatment records are silent as to any complaints of or treatment for bilateral flat feet. Moreover, the separation examination shows the feet to be normal. To the extent that the Veteran experienced an exacerbation of pain during service on account of his military duties, an intermittent or temporary flare-up during service of a pre-existing injury or disease does not constitute aggravation pursuant to 38 U.S.C. § 1153 unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). As noted above, the VA examiner found that the Veteran’s flat foot condition was clearly and unmistakably not permanently aggravated beyond its natural progression. There was no worsening during service. Without some objective evidence demonstrating a worsening of the underlying pathology of the Veteran’s bilateral flat feet during the time he was in service, the Board concludes that the evidence does not support a finding of aggravation. Thus, because the Veteran’s bilateral flat feet was noted to have pre-existed his active military service, and was not aggravated therein, the Board finds that the Veteran’s claim for service connection for pes planus must be denied. See 38 C.F.R. §§ 3.303, 3.304, 3.306; see also Wagner, 370 F.3d 1089. REASONS FOR REMAND Entitlement to an increased rating for service-connected patellofemoral syndrome of the left knee, currently evaluated as 10 percent disabling is remanded. In November 2019 the Board remanded the Veteran’s claim for an increased rating for his service connected left knee in order to obtain a current medical examination. A VA examiner issued an examination report on January 13, 2020. Unfortunately, it is necessary to remand the Veteran’s claim to obtain a medical examination. The remand instructions specifically set forth that the Veteran’s medical evaluation must include consideration of the range of motion factors set forth in Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The January 2020 report was inadequate because it failed to provide results evaluating range of motion “for pain on both active and passive motion and in weight bearing and non-weight bearing....” in violation of 38 C.F.R. § 4.59 and Correia. The duty to assist requires the Board to enforce compliance with the remand instructions. When an appeal is remanded, the claimant obtains a right to compliance. See Stegall v. West, 11 Vet. App. 268, 271(1998). To enforce its prior orders concerning the specific range of motion tests required by Correia, the Board must remand the case for a new examination. The matters are REMANDED for the following action: 1. If any medical treatment records have not been associated with the claims file, the RO should work with the Veteran to obtain and associate with the claims folder all of the records. 2. After the efforts are made and any additional records are associated with the claims file, the RO should locate and schedule a medical examination with an appropriate qualified physician other than the most recent examiner to provide an opinion with regard to the Veteran’s left knee disability claim. The VA examiner should review the details set forth in this remand, the entirety of the claims file, the history presented by the Veteran in testimony and statements, and examination results. The examiner should reflect that this required review was accomplished. The VA knee examination is required in order to ascertain the current severity of the Veteran’s service-connected left knee disability. The VBMS and Virtual VA electronic claims files must be made available and reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the left knee disability should be identified. All fields on the appropriate examination form should reflect either an appropriate and reasoned response or a statement or indication that the field is not applicable and a reason why. The examiner should determine the effective range of motion in the Veteran’s left and right knee and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and non-weight bearing, and the range of motion in the opposite, undamaged joint. The examiner’s report should describe objective evidence of painful motion, if any, during each test. It is not sufficient to merely indicate whether or not pain was present. A detailed and reasoned explanation is required. If any of these findings are not possible, please provide a statement regarding the reason. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or after repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. 3. The RO must ensure that the examination report requested above is in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the RO must implement corrective procedures at once. 4. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.M. Schneider 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.