Citation Nr: 21013951 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-36 849 DATE: March 11, 2021 REMANDED Entitlement to service connection for pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1971 to August 1974, November 1990 to June 1991, and June 1991 to April 2004. In November 2018, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. In March 2019, the Board remanded the matter to the agency of original jurisdiction (AOJ) for additional development. 1. Entitlement to service connection for flat feet is remanded. Upon review of the record, the Board finds that the issue of entitlement to service connection for pes planus must be remanded. The Veteran testified at the November 2018 Board hearing that pes planus was observed when he sought treatment for his left knee at Wright-Patterson Air Force Base and was put on a physical profile in approximately 1987. He indicated that he received orthotics that he used for several years until they started bothering his foot—he assumed that the arch had fallen so far that the supports were no longer helpful. The Veteran reported continued foot problems in and since service. The Board did not find evidence of this treatment of record from Wright-Patterson, and remanded the matter in 2019 to associate these records with the file. The remand also instructed that, if additional evidence was received that was a result of this development, the Veteran was to be afforded a new examination to address the nature and etiology of his pes planus. Following the Board’s remand, the AOJ requested additional service treatment records from the National Personnel Records Center, who responded that all records had been previously sent. The AOJ scheduled the Veteran for examination, and while the Veteran did not report for that examination, he requested rescheduling due to being out of state at the time of examination. Upon closer inspection of the Veteran’s service treatment records, the Board notes that service treatment records do contain a report from Wright-Patterson Air Force Base dated in December 1988 noting complaint and treatment related to the left knee, and that pes planus was also observed on physical examination. The treatment provider indicated that orthotic were foot were prescribed. Further service treatment records include a notation of pes planus on December 1992 periodic examination, and complaint of foot trouble on report of medical history in December 2003, with explanation of “psoriasis on the bottom of the feet sometimes dulls feeling on bottom of feet.” The Board observes that the Veteran was not on active duty at the time of the 1988 report. However, service connection may also be awarded on the basis of aggravation of a preexisting disability while in service. Additional laws and regulations apply when there is evidence that a disability preexisted service. Every Veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Determination of the existence of a preexisting condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion, see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based upon statements made by the Veteran about the pre-service history of the condition. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). The burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). The Veteran was afforded a VA examination in June 2013, at which time the examiner determined that the Veteran’s pes planus disability was less likely than not related to service. That examiner noted the report of pes planus in 1992, but did not discuss the earlier notation of pes planus and use of orthotics, or indicate whether such notation is indicative of a preexisting disability prior to active or onset in service, as the records reflects active service from 1990 to June 1991, and June 1991 to April 2004. Accordingly, another examination based upon full consideration of the evidence of record is warranted. In addition, while the matter is on remand, the AOJ should verify the Veteran’s National Guard service. The record that the Veteran served in the National Guard. While the Veteran’s DD 214s do not document that he was on active duty at the time of the 1988 treatment, any additional periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) should be verified. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to verify the appellant's service in the National Guard and any additional periods of ACDUTRA, INACTRUTRA or active duty during this timeframe. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed pes planus. Any indicated tests should be accomplished. The examiner should review the record prior to examination. The examiner should identify the likely onset of the disability. In particular, the examiner should state whether the Veteran's pes planus clearly and unmistakably preexisted any period of active service. If the examiner determines that the disorder preexisted service, he or she should state whether there was an increase in the disability during service. If the evidence reflects such an increase, the examiner should specifically find whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If not, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's pes planus first manifest during any period of active duty service or is otherwise medically related to service. In providing the requested opinion, the examiner is asked to consider and address the December 1988 and 1992 reports of pes planus, and the 2003 complaint of foot pain. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. E. Wilkerson, 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.