Citation Nr: 21011613 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 10-10 994 DATE: March 2, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for a back disability is denied. REMANDED Entitlement to service connection for shin splints is remanded. Entitlement to service connection for heel spurs is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s preexisting pes planus increased in severity during service. 2. The Veteran’s back disability did not have its onset during service or within one-year of discharge from service; the weight of the probative evidence does not etiologically link the Veteran’s back disability to service or any incident therein. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to March 1976. The matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, May 2017, May 2018, and July 2018, the Board remanded the matters for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, to include arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Pes Planus The Veteran seeks service connection for bilateral pes planus. It is well established that every veteran will be presumed to have been in sound condition 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 an injury or disease existed prior thereto. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In this case, the Veteran’s February 1974 entrance examination noted pes planus. Accordingly, it was noted that a pes planus condition 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. Therefore, the presumption of soundness does not apply in this case. 38 U.S.C. § 1111. Here, because a preexisting pes planus disability was noted upon entry into service, the Veteran’s claim cannot be considered one for in-service incurrence of that disorder; but rather, must be analyzed based on aggravation of a preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting disease or injury will be considered to have been aggravated by military 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 progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). 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; 38 C.F.R. § 3.306(b). Further, temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted with symptoms, has worsened. See Davis v. Principi, 276 F.3d. 1341, 1346 (Fed. Cir. 2002). Notably, it is the veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the preexisting disability increased in severity during service for the presumption of aggravation to attach. Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence. See Cotant v. Principi, 17 Vet. App. 116, 123–30 (2003); 38 C.F.R. § 3.306(b). The Veteran’s STRs show that he entered service with a pes planus disability. See February 1974 entrance examination. His STRs do not contain any additional complaints or treatment for a foot disability, to include pes planus. The Veteran underwent a VA examination in March 2019, in which he was diagnosed with bilateral pes planus. The examiner noted that the Veteran stated that he was never told that he had pes planus upon entrance into service. The examiner further noted that the Veteran and his wife “deny that the Veteran has flat feet.” The examiner opined that the Veteran’s pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond natural progression by an in-service injury, event, or illness. The examiner reasoned that while temporary aggravation is plausible, there is no evidence of aggravation in service as the Veteran’s STRs are silent as to any complaints of, treatment for, or diagnosis of any aggravation of his pes planus. The examiner also indicated that during the examination the Veteran denied having flat feet. After reviewing all of the evidence of record, the Board finds that the probative evidence indicates that the Veteran’s preexisting pes planus underwent no increase in severity during service. The March 2019 VA examiner opined that the Veteran’s pes planus was not aggravated by military service. The Board affords probative weight to the competent medical evidence of the March 2019 VA examination report, as the examiner’s opinion is based on accurate facts and sound reasoning and is consistent with the contemporaneous evidence. Additionally, the Veteran’s STRs are silent as to any reports, complaints, or treatment for any foot pain. Moreover, as noted in the March 2019 VA examination, the Veteran denied having a pes planus condition. Accordingly, the presumption of aggravation does not attach and a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. In conclusion, the record indicates that the Veteran’s pes planus preexisted his active service and was not aggravated therein. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Back Disability The Veteran contends that his back disability is due to an in-service fall from a wall during basic training. The Veteran’s STRs are silent as to any treatment, diagnosis, or findings of any back pain or disorder. The Veteran’s February 1976 separation examination noted no spine or musculoskeletal abnormalities. Additionally, the Veteran’s February 1976 report of medical history denied recurrent back pain. A May 1996 and October 1996 private medical report reveal that the Veteran developed pain in the lower back while working with a heavy reel of wire sometime around April 1996; he was diagnosed with L5, S1 disc protrusion. The Veteran specifically denied any prior back problems. The physician indicated that the Veteran had a first time injury to his lower back while working on April 4, 1996. He opined that the Veteran did not have a preexisting back injury prior to the 1996 work-related injury. In June 1998, the Veteran reported having a back injury due to lifting laundry. See June 1998 private medical records. A March 1999 X-ray revealed mild spurring of multiple lumbar bodies. A June 2002 private treatment note indicates that the Veteran was injured while cleaning and sustained a herniated lumbar disc. In January 2003, the Veteran was diagnosed with lumbar disc disease. A September 2017 X-ray revealed mild levoscoliosis, moderate degenerative disc disease, and mild degenerative changes at the rest of the disc levels. In December 2017, the Veteran reported experiencing back pain for over 30 years after sustaining injury due to fall during basic training. See December 2017 private medical records. A January 2018 VA examiner diagnosed the Veteran with degenerative arthritis of the spine, spinal canal stenosis, degenerative disc disease of the lumbar spine, levoscoliosis, and L5-S1 protruding lumbar disc. A March 2019 VA examiner opined that the Veteran’s diagnosed back conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He reasoned that the Veteran’s STRs are silent as to any complaints, treatment, or diagnosis for a back condition. The examiner noted that while a September 2006 medical record noted that the Veteran reported back pain during service, the Veteran’s 1996 medical records indicate that the Veteran sustained a back injury due to a work-related incident. The examiner further noted that the Veteran’s subsequent medical records note low back pain due to a work-related injury as well as continued evidence of chronic low back pain and surgery. In July 2019, the Veteran submitted a correspondence from a VA physician, Dr. S.A., dated June 2018, in which the physician indicated that it has been documented in the Veteran’s records that he had a fall in basic training and has been experiencing pain for over 30 years. After considering all of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for a back disability. The Board concludes that while the Veteran has a diagnosis of degenerative arthritis of the lumbar spine, it was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period of time, and was noted in service with attributable continuity of symptomatology. The record shows that the Veteran was not diagnosed with arthritis until several years after separation from service and well outside the applicable one-year presumptive period. As to continuity of symptomology, the Veteran contends that he has had back pain since service. However, the Board notes that the Veteran’s February 1976 report of medical history noted no complaints or reports of recurrent back pain and his separation examination noted no abnormalities of the spine. Additionally, the Veteran’s 1996 medical records indicate that he first reported experiencing back pain after an April 1996 work-related injury, approximately 20 years after service. At that time, the Veteran specifically denied any prior back problems. Thus, the competent evidence of record weighs against any continuity of symptomatology following discharge from service. Moreover, the Board finds that the evidence of record does not support a finding for service connection as there is no evidence of a nexus between the Veteran’s back disability and service. Specifically, the March 2019 VA examiner opined that it was less likely than not that the Veteran’s back disabilities were incurred in or caused by an in-service injury, event, or illness. Additionally, the Board acknowledges the Veteran’s attorney’s contention that imaging showed hypertrophic spurring demonstrating evidence of a preexisting injury to his 1996 work injury. However, the Board does not find this argument to be persuasive as the Veteran’s 1996 private medical records specifically note that the Veteran did not have a preexisting back injury prior to April 1996 and denied having any prior back problems. The Board notes that the submitted July 2019 correspondence from Dr. S.A. is contrary to the Board’s conclusion. However, the Board finds that the submitted July 2019 correspondence lacks probative value as the physician does not indicate whether the claims file, to include the Veteran’s private medical records and STRs were reviewed. Additionally, Dr. S.A. did not provide any rationale or explanation as to his conclusory statement that the Veteran has experienced back pain since the reported in-service injury. Rather, the Board finds that the March 2019 VA medical opinion is entitled to significant probative weight as the opinion contains clear conclusions, supporting data, and a thorough analysis given the Veteran’s medical history provided in the claims file, to include the Veteran’s STRs. The Board finds that the March 2019 VA medical opinion contemplates correct facts, to include facts not addressed in the submitted July 2019 statement (making its conclusion less probative). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). As a result, the Board finds that the March 2019 VA examiner’s opinion is entitled to significant probative weight. To the extent that the Veteran contends that his back disability is related to service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. However, as to the etiology of his back disability, the issue of causation of such a condition is a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran’s back disability is related to service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the Veteran’s lay statements. As discussed above, the Board affords more probative weight to the competent medical evidence of the March 2019 VA examination report finding that the opinion is based on an accurate medical and lay history as well as medical documentation provided in the claims file. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Service Connection for Shin Splints Pursuant to the Board’s July 2018 remand directives, the Veteran was afforded a VA examination in March 2019. The examiner opined that the Veteran’s shin splints were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He reasoned that there is no objective evidence of complaints, treatment, or diagnosis of shin splints in service. He also indicated that the Veteran did not complain of shin splits until decades after discharge from service. The Board regrets further delay, but additional development is necessary before the matter can be adjudicated. Specifically, the Board finds that remand is required in order to obtain an addendum VA medical opinion. Where VA provides a veteran with an examination in a service connection claim, the examination and medical opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board finds that the March 2019 VA medical opinion is inadequate as the opinion is largely based on the absence corroborating medical records. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Accordingly, the Board finds that remand is necessary to obtain an addendum medical opinion regarding the nature and etiology of the Veteran’s shin splints. Service Connection for Heel Spurs Pursuant to the Board’s July 2018 remand directives, the Veteran was afforded a VA examination in March 2019. The examiner opined that the Veteran’s heel spurs were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He reasoned that there is evidence of complaints of, treatment, or diagnosis for heel spurs in the Veteran’s STRs. The examiner also indicated that evidence of heel spurs was not apparent until decades after service, in 2007. The Board finds that remand is warranted for an addendum medical opinion. Here, the March 2019 VA medical opinion is based on an inaccurate factual premise that the Veteran’s did not report or seek treatment for his heel spurs until 2007. However, the Veteran’s medical records indicate that he reported heel pain in 1997. A December 1997 treatment record revealed healing stress fractures of both feet since 1976. A January 1998 X-ray revealed small bilateral calcaneal spurs. A March 2000 X-ray revealed small bilateral inferior calcaneal spurs. Consequently, the Board finds that remand is warranted in order to obtain an addendum medical opinion regarding the nature and etiology of the Veteran’s heel spurs. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, forward the claims file to a qualified medical professional to obtain an addendum medical opinion regarding the nature and etiology of the Veteran’s shin splints and heel spurs. If the examiner determines that another VA physical examination is necessary, such an examination should be scheduled. Following a review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s shin splints and heel spurs began in or are otherwise etiologically related to service, to include as due to an in-service fall from a wall during basic training. A complete rationale must be provided for all opinions provided. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.