Citation Nr: 21014144 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-38 674A DATE: March 11, 2021 ORDER Entitlement to service connection for bilateral pes planus is granted. REMANDED Entitlement to service connection for bilateral plantar fasciitis is remanded. FINDING OF FACT The Veteran’s pre-existing bilateral pes planus was aggravated during his period of active duty from August 2011 to September 2012. CONCLUSION OF LAW The criteria to establish service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1131, 1111, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2011 to September 2012. He also has active duty for training (ACDUTRA) from February 2005 to July 2005. Finally, the Veteran served in Kuwait and Iraq. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for pes planus. The Veteran requested a hearing before the Board. See November 2014 Form 9. However, in May 2015, the Veteran submitted a statement indicating he wished to withdraw his hearing request. Accordingly, the Veteran’s hearing request is withdrawn. 38 C.F.R. § 20.702(d). In May 2018 and October 2020, the Board remanded the Veteran’s claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded the claims to afford the Veteran a new VA examination to address the etiology of the Veteran’s diagnosed foot disabilities, pes planus and plantar fasciitis. The claims are back before the Board for further appellate proceedings. The Veteran’s bilateral plantar fasciitis is addressed in the remand section of this order. Turning to the substantive issues on appeal, the Board notes that some of the Veteran’s service treatment records are unavailable. See September 2013 correspondence. Notably, service treatment records from the Veteran’s service between 2011 and 2012 are unavailable with exclusion of a few records provided by the Veteran. In instances where a claimant’s service department records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider whether the evidence is in equipoise, and if so, to resolve the matter in the claimant’s favor. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for bilateral pes planus is granted. The Veteran asserts that his bilateral pes planus was aggravated during his period of service starting in 2011. See April 2014 correspondence. Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111. The statutory language regarding the presumption of soundness indicates that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Thus, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. See Smith, 24 Vet. App. at 46; see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The Smith Court held that in light of the absence of evidence of an examination made contemporaneous with the Veteran's entry into service, the presumption of sound condition could not apply. Smith, 24 Vet. App. at 46. In this case, service treatment records do not indicate that the Veteran was examined prior to entrance onto active duty in August 2011. Thus, the presumption of soundness is not for application and the Board must determine whether the Veteran's bilateral pes planus was as likely as not aggravated by service. See Smith, 24 Vet. App. at 45-47. Service treatment records indicate that the Veteran had an asymptomatic bilateral pes planus in November 2004. See STRs. The Veteran’s bilateral pes planus initially became painful during his period of ACDUTRA in June 2005 but resolved, or otherwise became asymptomatic, no later than January 2009. Id. Importantly, no records show that the Veteran’s pes planus was aggravated prior to August 2011. See generally, VA examinations and private medical records. Subsequently, the Veteran alleged that his pes planus became painful again during his period of active service between August 2011 and September 2012. He submitted a March 2012 sick slip that shows follow-up treatment for his feet to include a temporary profile and continued medication. See November 2014 medical treatment records. Further, he credibly asserts that his pes planus has been painful since. See April 2014 correspondence. He has consistently complained of foot pain since this period of service. The Court has held that a lay claimant is competent to report such symptoms. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). As such, the Veteran’s statements are credible and entitled to probative weight. Thus, the Board finds that the Veteran’s statements, along with contemporaneous medical records, show an aggravation of his bilateral pes planus during service. The preponderance of the evidence shows that the Veteran had an asymptomatic bilateral pes planus in November 2004 that was likely aggravated during the Veteran’s period of active duty from August 2011 to September 2012. His bilateral pes planus was asymptomatic prior to his period of active duty from August 2011 to September 2012. It became symptomatic and remained symptomatic since this period of active duty. Thus, the Board concludes that the Veteran’s bilateral pes planus was aggravated during the Veteran’s period of active duty from August 2011 to September 2012. Therefore, the criteria for service connection for the Veteran’s bilateral pes planus have been met. See 38 C.F.R. §§ 3.102, 3.159, 3.303; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral plantar fasciitis is remanded. As discussed above, the Board remanded the Veteran’s claims to the AOJ to afford the Veteran a new VA examination to address the etiology of the Veteran’s plantar fasciitis. Indeed, prior to the Board’s October 2020 remand, the evidentiary record did not contain any medical opinions related to the Veteran’s plantar fasciitis. A VA examiner opined that there was no medical evidence of a foot condition in service or in support of the Veteran’s allegation of onset in 2011. See December 2020 VA examination report. As discussed in the order above, there were instances of treatment for a foot condition in service, to include a diagnosis of plantar fasciitis. See STRs. Moreover, the examiner improperly discounted lay testimony and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion. For these reasons, the examiner’s opinion is inadequate for adjudicative purposes and a new examination is required. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Thus, a remand is necessary for a new opinion. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his plantar fasciitis that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s plantar fasciitis. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran’s plantar fasciitis had its onset during a period of ACDUTRA or is otherwise related to an injury or disease incurred therein, to include a diagnosis of plantar fasciitis in June 2005. B. Is it at least as likely as not that the Veteran’s plantar fasciitis was incurred in, or is otherwise related to, his time on active service. The reviewing clinician should discuss the March 2012 sick slip indicating follow-up treatment for the feet. See November 2014 government medical treatment records at 21. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page)   3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.