Citation Nr: 21012978 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 18-05 710 DATE: March 8, 2021 ORDER Entitlement to service connection for pes planus (flat feet) is granted on an aggravation basis. Entitlement to service connection for bilateral foot disability, diagnosed as plantar fasciitis and hallux valgus, is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) due to military sexual trauma (MST) is granted. FINDINGS OF FACT 1. The Veteran’s preexisting pes planus disability, noted at entry into service, worsened during service, and the evidence does not clearly and unmistakably show that the worsening was due to the natural progress of the disease. 2. The evidence is at least evenly balanced as to whether the Veteran’s plantar fasciitis and hallux valgus is related to service. 3. The evidence is at least evenly balanced as to whether the Veteran’s PTSD is related to an in-service MST. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus have been met on an aggravation basis. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral foot disability, diagnosed as plantar fasciitis and hallux valgus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 3. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1997 to May 1998. This case comes before the Board of Veterans’ Appeals (Board) on appeal from October 2009, November 2009 and August 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2019 decision, the Board denied service connection for PTSD due to MST, service connection for an acquired psychiatric disorder, service connection for obesity, and entitlement to a total disability rating based on individual unemployability (TDIU). In addition, the Board also remanded the claim for service connection for a bilateral foot disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacated the part of the Board’s May 2019 decision which denied service connection for PTSD due to MST, and remanded the matter to the Board for action consistent with the terms of the JMPR. In August 2020, the Board remanded the matter for further evidentiary development. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Bilateral Foot The Veteran contends that his bilateral foot disabilities are related to service, or alternatively, to his service-connected bilateral ankle sprains. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304 (b). The term noted, in 38 U.S.C. § 1111, refers to [o]nly such conditions as are recorded in examination reports. 38 C.F.R. § 3.304 (b). A [h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The Veteran has now been diagnosed with a bilateral foot disability. Specifically, VA examination reports shows diagnoses of pes planus, planter fasciitis, and hallux valgus. The current disability requirement has thus been met. At the Veteran’s August 1996 enlistment examination, a bilateral pes planus disability was noted upon entrance to service. Based on this evidence, presumption of soundness does not apply with the bilateral pes planus issue, because bilateral pes planus was noted at entry into active duty service. Therefore, with respect to bilateral pes planus, the primary issue is whether the preexisting bilateral pes planus was aggravated by such service and in this regard the presumption of aggravation must be considered. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) (There is a related but distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service. This provision is known as the presumption of aggravation.). A preexisting injury or disease will be considered to have been aggravated by active duty 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 progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). 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 on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). These provisions apply to only one situation: where the induction examination notes a preexisting condition that is alleged to have been aggravated. Horn, 25 Vet. App. at 238 (quoting Wagner, 370 F.3d at 1096) ([I]f a preexisting disorder is noted upon entry into service... the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation). That is the situation in this case. In this case, service treatment records (STRs) reflect that in January 1998, the Veteran complained of numbness of his foot and the clinician reported findings of bilateral pes planus. In February 1998, the he reported no changes in numbness and physical findings noted pes planus and swelling. At the Veteran’s March 1998 separation medical examination, his feet were examined and noted as normal. On the accompanying report of medical assessment, the Veteran endorsed having foot trouble. He noted that his ankle and feet conditions limit him in his MOS infantry field. Post-service, the Veteran was diagnosed with bilateral pes planus upon VA examinations in August 1998 and October 2000 and with plantar fasciitis in September 2006. The Veteran underwent VA examination in August 2009 and the examiner diagnosed bilateral pes planus and the examiner stated that relatively rigid pes planus, such as the Veteran exhibits is a congenital rather than acquired condition. In September 2013, the Veteran again underwent VA foot (other than flatfoot/pes panus) examination and reported he developed a gradual onset of bilateral foot pain in the heels and arches with prolonged standing or walking while in service. He further stated that he was told that he had low arches to his feet before entering service and that over time, his arches flattened due to military training and has continued to have frequent episodes of painful feet since then. The VA examination report reflects that the Veteran had a diagnosis of plantar fasciitis, and additionally, has a diagnosis of hallux valgus. An October 2019 VA examination report shows that the examiner diagnosed bilateral pes planus since August 1996 and bilateral plantar fasciitis since September 2006. The examiner opined that the Veteran’s bilateral pes planus clearly and unmistakably exited prior to service since he was noted to have mild pes planus on his August 1996 enlistment examination. The examiner noted that as stated previously, the Veteran’s pes planus is likely congenital in nature. The examiner further opined that the Veteran’s preexisting pes planus, which clearly and unmistakably existed prior to service, was not permanently aggravated beyond normal progression by service as there is no evidence of any permanent aggravation or worsening of the preexisting pes planus during service in the evidence of record. Regarding plantar fasciitis, the examiner opined that the Veteran’s bilateral plantar fasciitis is less than likely related to service because there is no evidence of plantar fasciitis during or within one year after separation from service. The examiner explained that the first medical evidence of plantar fasciitis was in September 2006, more than eight years after separation from service and stated that there is no evidence of any injury or event during service which caused the development of plantar fasciitis eight years after separating from service in the evidence of record. The examiner concluded that the Veteran’s bilateral plantar fasciitis is most likely due to his preexisting nonservice-connected pes planus and nonservice-connected morbid obesity since both are strong risk factors for the development of plantar fasciitis. In an October 2020 VA addendum medical opinion, the examiner opined that the Veteran’s pre-existing bilateral pes planus, which clearly and unmistakably existed prior to service, was not aggravated or worsened beyond the normal disease progression by service. The examiner indicated that his opinion was based on review of the Veteran’s claims file, STRs, and statements. The examiner concluded that the treatment in service was consistent with the pre-existing pes planus and not an indication of any aggravation of the condition. In addition, the foot complaints treated in service were not indicative of a foot condition other than pes planus during service. The examiner further opined that bilateral plantar fasciitis and hallux valgus were not directly attributed to military service as these conditions were not found during service or within a year after service. The examiner noted that both conditions were found years after discharge from service, and more likely related to the pre-existing pes planus and obesity, as these conditions are potential factors in the development of both plantar fasciitis and hallux valgus. With respect to the bilateral pes planus issue, the Board finds the October 2019 and October 2020 VA opinions that the Veteran’s bilateral pes planus, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression during the Veteran’s period of service is flawed and of no probative value. Specifically, the October 2019 VA opinion noted no evidence of any permanent aggravation or worsening of the preexisting pes planus during service in the evidence of record. The October 2020 VA opinion noted in service treatment was consistent with the pre-existing pes planus and not an indication of any aggravation of the condition. However, the STRs indicate that on multiple occasions, the Veteran complained and received treatment for bilateral foot condition. Numbness, pain, swelling and pes planus were noted. Additionally, at the Veteran’s March 1998 separation medical examination, he endorsed foot trouble, and noted that his feet conditions limited him in his MOS infantry field. With respect to all claims, the VA examiner failed to consider competent and credible evidence of the Veteran’s report of the onset of bilateral foot pain he experienced in service, and the continuation of those symptoms in the years since service. At this point, a request for yet another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Moreover, to the extent that the grant of service connection in this case is based primarily on lay evidence, nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). With respect to the bilateral pes planus issue, given the Veteran’s competent and credible statements of foot pain in service resulting in worsening of bilateral pes planus in service, the Board finds that his bilateral pes planus worsened during service. Thus, aggravation is presumed. There is no conflicting evidence of record. As noted above, the presumption of aggravation can only be rebutted by clear and unmistakable evidence that the increase was due to the natural progress of the disease. As indicated above, there is no such evidence in this case. The presumption of aggravation has thus not been rebutted and the Board therefore finds that the Veteran’s preexisting bilateral pes planus noted at entry into service was aggravated by service. As the above evidence reflects that he has had bilateral pes planus symptoms since that time, reflecting a nexus between the current pes planus and the in-service aggravation, entitlement to service connection for bilateral pes planus on an aggravation basis is therefore warranted. With respect to the plantar fasciitis and hallux valgus issue, for the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s diagnosed plantar fasciitis and hallux valgus had their onset in service. Thus, resolving reasonable doubt in the Veteran’s favor, service connection for bilateral foot disability, diagnosed as plantar fasciitis and hallux valgus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, consideration of other theories of entitlement is unnecessary. 2. PTSD There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. See 38 C.F.R. § 3.304 (f)(5). The Veteran asserts that he has PTSD that is related to an in-service stressor. Specifically, he reports that he was sexually assaulted while in the rehabilitation platoon. In this case, the evidence of record demonstrates the Veteran has a current PTSD diagnosis. Specifically, a July 2014 VA examination report shows a diagnosis of PTSD that conforms to DSM-5 criteria. Thus, the first requirement for service connection has been met. The Veteran’s STR are negative of treatment or diagnosis of PTSD. Post-service VA clinical records shows that in October 2002, the Veteran endorsed experiencing emotional, physical or sexual abuse. He indicated that the abuse was not currently occurring. In a February 2013 mental health intake summary, the Veteran indicated that while in the military, he was drugged and assaulted by a man whom he had met off base. In a May 2014 statement, the Veteran indicated that his behavioral changes after being sexual assaulted included drinking on duty every night until he passed out, nightmares about the incident which disrupted his sleep, and fear of getting a sexually transmitted disease. He isolated himself and would not spend time with friends, broke up with his girlfriend, and stopped calling home to her and his family. The Veteran noted mental health therapy in 2001. The Veteran was afforded a VA examination in July 2014. He reported that in January 1998, he was sexually assaulted at camp LeJeune by a marine, where he had been since October. He stated that he never told anyone, because he was afraid that he would be kicked out for being gay, and finally told his wife a couple of years ago. The Veteran noted that he tried to act like it did not happen and did not want to be intimate with any girls back home after that, as he felt ashamed like he had a bad secret. The examiner concluded that the Veteran’s stressor met the criteria for PTSD, and that his stressor was related to military sexual trauma. The examiner opined that PTSD is less likely than not related to the singular traumatic experience (MST) which he reported occurred during his military service, and it is more likely than not that his PTSD is related to multiple life traumas beginning in childhood and continuing throughout adulthood. The examiner explained that there are no discreet markers present in his personnel file or STR’s which would substantiate the occurrence of MST in January of 1998. The examiner stated that this is not a statement disputing the Veteran’s report of MST, it is merely a statement related to lack of markers present in the evidence provided. The examiner concluded that she cannot form an opinion with regard to concession of this stressor without resorting to speculation. The examiner indicated that the Veteran also meets the full DSM-criteria for persistent depressive disorder with anxious distress and dependent personality. The examiner opined that there was no nexus that would link either of these disorders to his military service, because there is no evidence present in the claims file, which indicates that he complained of, was worked up for, treatment for, or was diagnosed with any mental health condition until he presented for treatment in VA in 2002. The examiner noted that his initial treatment was related to mood problems and problems with his school. Although there is nothing in the Veteran’s service personnel and treatment records that specifically documents a sexual assault at any point during his active service, cases involving allegations of personal assault falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events about which a veteran complains. See Patton v. West, 12 Vet. App. 272, 281 (1999). Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. Ap. 393, 399 (1998). In this case, the Veteran has consistently maintained that he suffered a sexual assault while in service, including during mental health therapy with VA psychologists. These statements were made when medical treatment was being rendered and they were made to ascertain the Veteran's state of mental fitness. Thus, the Board finds that the medical history reported by the Veteran to a medical professional in seeking treatment for a medical problem is credible. Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons")). Therefore, there is credible supporting evidence that the in-service stressor identified by the Veteran occurred. While the July 2014 examiner opined that PTSD is less likely than not related to the MST, this opinion is of no probative value, as the examiner relied on the absence of documentation in the personnel records and STRs, and did not consider the Veteran’s reported behavioral changes consistent with having experienced MST. Specifically, the Veteran’s overdrinking, nightmares, fear of STD, and self-isolation in service, which tends to corroborate the reported in-service military sexual assault. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence ). Moreover, the VA examiner indicated that noting no discreet markers the personnel file or STR’s which would substantiate the occurrence of MST in January of 1998, is not a statement disputing the Veteran’s report of MST, it is merely a statement related to lack of markers present in the evidence provided. The examiner noted that she cannot form an opinion with regard to concession of this stressor without resorting to speculation. For the foregoing reasons, the evidence is at least evenly balanced as to whether there is a link between the Veteran’s diagnosed PTSD and his in-service MST. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, and each of the criteria of 38 C.F.R. § 3.304 (f) have therefore been met, entitlement to service connection for PTSD is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.