Citation Nr: 21009985 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-14 982 DATE: February 23, 2021 ORDER Entitlement to service connection for bilateral flat feet is granted. REMANDED Entitlement to service connection for a right arm disorder, to include as secondary to the service-connected cervical strain with degenerative arthritis of cervical spine with cervical loss of motion, is remanded. FINDING OF FACT The Veteran’s flat feet (pes planus) was noted on entry to service, and increased beyond the natural progression of the disorder during military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral flat feet have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1988 to October 2008. He received the Combat Action Ribbon, the Navy Marine Corps Achievement Medal, the Navy Meritorious Unit Commendation, the Southwest Asia Service Medal, and other decorations during his two decades of distinguished service. The Board sincerely thanks him for his service to the United States. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge in August 2016. A transcript of the hearing is associated with the claims file. In February 2019, the Board issued a decision that, among other things, denied entitlement to service connection for bilateral flat feet and remanded a claim of service connection for a right arm disorder. The Veteran appealed the decision on the claim for flat feet to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a memorandum decision vacating the Board’s decision as to service connection for flat feet and remanding the matter for further development. The Court found that the Board did not make a threshold finding as to whether the Veteran’s bilateral flat feet, noted on enlistment, worsened during active duty service. The claim for service connection for flat feet has returned to the Board, and, as it is herein being granted to the maximum extent allowed by law, no further discussion of its procedural history is necessary. Regarding the claim for service connection for a right arm disorder, the Board remanded it for a supplemental medical opinion in February 2019. The appeal was returned to the Board in December 2019, at which time it was remanded again for a VA examination and medical opinion considering the potential of a causal relationship between the Veteran’s service-connected cervical disorder and his complaints of right arm symptoms. Unfortunately, the Board finds that the agency of original jurisdiction (AOJ) has not substantially complied with the prior remand directives as to that claim and further development is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (2011) (holding that the Board errs, as a matter of law, when it fails to ensure substantial compliance with prior remand directives). Legal Criteria – Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every Veteran is presumed to be 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 was not aggravated by service. 38 U.S.C. § 1111. The Federal Circuit has distinguished between those cases in which the preexisting condition is noted upon entry into service, and cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute notation of such condition. Id. at 240. However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996). If a preexisting disorder is noted upon entry into service, the veteran may bring a claim for service-connected aggravation of that disorder. 38 U.S.C. § 1153. If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” See Jensen v. Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994). 1. Entitlement to service connection for bilateral flat feet The Board finds that the most probative evidence is at least in relative equipoise as to the claim of service connection for flat feet. Thus, the claim is granted. The Board and the Court have previously conceded that the Veteran was noted to have asymptomatic pes planus upon entry to service. See CAVC Decision, June 2020. Therefore, the Board finds that pes planus was noted at induction to service, and the question is first whether there was any increase in disability during military service. See Crowe, 7 Vet. App. at 245. The Board observes that the Veteran obtained treatment for pes planus in February 2008. He reported having bilateral foot pain for the past four years. The clinician diagnosed flat feet and referred the Veteran to the podiatry clinic. In his hearing testimony in 2016, the Veteran described having foot pain due to bilateral flat feet and seeking treatment for foot pain during military service. Considering the Veteran’s active duty service medical records reflecting treatment and a podiatry referral for flat feet and his credible lay testimony, the Board finds that there is sufficient evidence to establish an increase in the severity of flat feet during active service. The Board observes that flat feet was noted to be “asymptomatic” at entry, further suggesting an increased severity of the disorder during service. As such, the presumption of aggravation applies with respect to flat feet. 38 U.S.C. § 1153. As the presumption of aggravation applies, it must be shown by clear and unmistakable evidence that such aggravation was due to the natural progress of the Veteran’s flat feet. Id.; see also VAOPGCPREC 3-03. In the instant case, the Board finds there is no clear and unmistakable evidence to indicate that the aggravation of the Veteran’s flat feet was due to the natural progress of the condition. Accordingly, service connection for flat feet based on the presumption of aggravation is warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). REASONS FOR REMAND 2. Entitlement to service connection for a right arm disorder, to include as secondary to the service-connected cervical strain with degenerative arthritis of cervical spine with cervical loss of motion The Veteran underwent a VA examination in January 2020. The clinician diagnosed a right shoulder strain and rotator cuff tendinitis and opined that they are at least as likely as not related to service, but did not diagnose a disorder of the right arm. However, the examiner noted symptoms of pain and functional loss in the right elbow. He opined that it is less likely than not that a right arm disorder is proximately due to or a result of a service-connected cervical spine disorder. However, the examiner did not address whether a right arm disorder (including elbow pain) was aggravated by a cervical spine disorder or was secondary to the service-connected shoulder disorder. 38 C.F.R. § 3.310(b). The Board finds that the above examination and medical opinion requires further clarification. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Initially, the examiner did not address the Veteran’s reports of right elbow pain causing functional loss which may be considered a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Although he diagnosed a right shoulder strain and a rotator cuff disorder, the former is already service-connected and the latter is a disability of the shoulder joint as opposed to the arm, and, thus, is not within the scope of the instant claim. Moreover, the examiner did not address a theory of aggravation of the right arm/elbow disorder by a service-connected disorder. 38 C.F.R. § 3.310(b). Thus, the Board finds that an addendum medical opinion is needed before a decision on the merits. The matters are REMANDED for the following actions: 1. Please secure for the record copies of complete updated clinical records of all VA and non-VA treatment the Veteran has received for the disorders on appeal. 2. Please obtain an addendum medical opinion regarding the nature and etiology of the Veteran’s right arm disorder. ONLY IF the clinician believes that a VA examination is required to answer the questions below should one be scheduled. The clinician is asked to review the claims file and opine on the following: (a) Is it at least as likely as not that any right arm disorder (to include right elbow pain causing functional loss) had its onset during or is causally related to military service? (b) Is it at least as likely as not that any right arm disorder (to include right elbow pain causing functional loss) is proximately due to or a result of a service-connected disorder, to include the shoulder strain and/or cervical spine disorder? (c) Is it at least as likely as not that any right arm disorder (to include right elbow pain causing functional loss) is aggravated by a service-connected disorder, to include the shoulder strain and/or cervical spine disorder? A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss relevant lay and medical evidence, to specifically include: • The VA examination report dated January 2020, showing reports of elbow pain causing functional loss • The Veteran’s hearing testimony in August 2016 • The Veteran’s lay contentions that his right elbow pain causing functional loss had its onset during service, or is proximately, due to, a result of, or aggravated by a service-connected right shoulder disorder or cervical spine disorder The clinician is reminded that the term “at least as likely as not,” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that it is as medically sound to find in favor of the proposition as it is to find against. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.