Citation Nr: 21014892 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-31 364A DATE: March 16, 2021 ORDER Service connection for bilateral flat feet, to include as secondary to a service-connected disability is denied. REMANDED The service connection claim for obstructive sleep apnea is remanded. FINDINGS OF FACT The probative evidence does not show that the Veteran’s preexisting bilateral flat feet was aggravated during his active service and/or caused or aggravated by any service-connected disabilities. CONCLUSIONS OF LAW The criteria for service connection for bilateral flat feet, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to February 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2011 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ), who is no longer employed by the Board. A transcript of this hearing is of record. Since the VLJ is longer at the Board, the Veteran was provided with another opportunity to appear for another hearing. However, he indicated that he did not want another hearing. In May 2018 and September 2020, the Board remanded the case to the RO for further evidentiary development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Thus, secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran asserts that his bilateral flat feet disability is causally related to his active service. Specifically, at his December 2015 videoconference hearing, the Veteran testified that he began having foot pain in basic training in 1988. He stated that he believed that his feet pain were the result of wearing boots, marching and running; he wore inserts while he was on active duty, and when he separated from service, he obtained customized inserts that were specially created for his feet. Further, he stated that he sought treatment for his flat feet while he was in service. See December 2015 Videoconference Hearing Transcript. Service treatment records (STRs) indicate that the Veteran had mild, asymptomatic pes planus (flat foot) upon enlistment in service. See August 1988 Report of Medical Examination for Enlistment in Service. However, no other associated complaints, conditions, or treatment relating to his flat foot condition were noted in his STRs. In this regard, the Board notes that a Veteran is considered to be 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 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). Where there is “clear and unmistakable” evidence that the injury or disease claimed pre-existed service, and was not aggravated during service, the presumption of soundness does not attach. Id. A preexisting injury or disease will be considered to have been aggravated by 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. Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 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 C.F.R. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). As noted above, the Veteran had bilateral flat feet upon enlistment into service. Notwithstanding, the pre-induction examiner determined that the Veteran was qualified for duty. See August 1988 Report of Medical Examination for Enlistment in Service. Therefore, for purposes of this analysis, the Veteran is not afforded the presumption of soundness with respect to his bilateral flat foot, given that this condition was documented in his August 1988 pre-enlistment examination report. In this regard, where a pre-enlistment examination reflects a pre-existing condition, as is the case here, any in-service aggravation of the pre-existing condition is considered as sufficient basis for service connection, unless there is clear and unmistakable evidence that the disorder was not permanently aggravated beyond the natural progression of the condition during service. See 38 C.F.R. § 3.306. In deciding a claim based on aggravation, after determining the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service. Then next, the Board must determine whether any worsening of the disability constitutes an increase in the disability, which must be permanent in nature. Browder v. Brown, 5 Vet. App. 268, 271 (1993). Given the Veteran’s pre-existing bilateral flat feet disability, the Board remanded this issue, in September 2020, for the RO to obtain an addendum opinion on the pre-existing bilateral flat foot, on the basis of in-service aggravation. Accordingly, in a September 2020 opinion, a VA examiner opined that the Veteran’s medical records do not support that the bilateral flat foot/pes planus, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression, by an in-service illness, event, or injury to include military service. As the rationale for this opinion, the VA examiner explained that even though the Veteran did have some complaints, due to his feet during active duty service, these complaints were acute and that “by and large, his bilateral flat feet was asymptomatic during active duty service.” The VA examiner further clarified that this represents a natural progression of the Veteran’s flat feet/pes planus, and not an aggravation. Although the Board finds that the Veteran’s lay statements and report about in-service feet pain are credible, the Veteran has not presented any other evidence, such as, for example, private treatment records that reflect complaints or treatment for a worsening condition of bilateral flat foot during his period of active service, and/or a contradicting positive nexus opinion. Thus, the evidence does not show that the Veteran’s pre-existing flat foot disability worsened during service. In this regard, as there is no evidence of a worsening of the bilateral flat foot in service, the Board need not reach the question of whether a worsening of the disability, in service, constitutes an increase in a disability that is permanent in nature. Thus, in summary, there is no evidence that the Veteran’s pre-existing flat foot disability was aggravated during active service. In the alternative, however, the Veteran suggests that his bilateral flat feet may be secondary to a service-connected disability. See February 2021 Appellate Brief. At the same time, the Veteran presents a broad, vague assertion, and does not specify which service-connected disabilities likely cause or aggravate his bilateral flat feet. The Veteran is currently service-connected for hypertension; irritable bowel syndrome; painful and unstable right knee surgical scar, associated with patellar tendon repair; post-operative right knee scar; right knee patellar tendon repair; left knee patellar tendonitis; tinnitus; and erectile dysfunction, associated with hypertension with chronic renal insufficiency. However, the evidence of record does not support a finding that there may be a correlation between the Veteran’s bilateral flat feet and any of these service-connected disabilities. None of the Veteran’s post-service medical treatment records have indicated or suggested that the Veteran’s bilateral flat foot is related to his service-connected hypertension, irritable bowel syndrome, right knee scars, right knee disability, left knee disability, tinnitus, and/or erectile dysfunction. Further, the Veteran has not presented or identified any medical evidence, such as, for example, a private treatment record or a medical opinion that establishes a correlation between the bilateral flat feet and any of these service-connected disabilities. The Board acknowledges that the RO has not obtained a medical opinion to determine whether the Veteran’s bilateral flat feet is secondary to any of his service-connected disabilities, as the Veteran’s statements alone are insufficient to warrant a medical examination. Doing so would be contrary to the intent of Congress, and accordingly, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. See, e.g., Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Therefore, VA is under no duty to obtain a medical opinion, on the basis of secondary service connection. In summary, the preponderance of the evidence is against the claim as there is no evidence that the Veteran’s bilateral flat feet is causally related to his active service; or is caused or aggravated by any of his service-connected disabilities. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, service for bilateral flat feet must be denied. REASONS FOR REMAND The Board regrets further delay but finds that additional development is necessary before a decision may be rendered on the remaining issue on appeal. In September 2020, the Board explained, in pertinent part, that the record raises the possibility that the Veteran’s obstructive sleep apnea is caused by his obesity, which in turn, potentially had its onset during service. As the Board noted, although VA has determined that obesity is not a ratable disability for service connection or secondary service connection compensation purposes, obesity may act as an “intermediate step” between a service-connected disability and a current disability, for which secondary service connection may be established. See VAOPGCPREC 1-2017 (Jan. 6, 2017). Further, under 38 C.F.R. § 3.310(a), a disability which is proximately due to or the result of a service-connected disease or injury is service-connected. In this regard, the Board explained that in a prior July 2019 VA examination, a VA examiner stated that the Veteran was noted to have become overweight during his active service with a body mass index (BMI) of 30, immediately after service. Further, the Board observed that the medical evidence of record does not show an actual in-service diagnosis of obesity, but rather, STRs indicate that the Veteran was overweight. Accordingly, the Board determined that the record is unclear as to when the Veteran became obese. Ultimately, it found that the July 2019 opinion does not provide the required link between the Veteran’s obesity and his military service, specifically meaning, that the VA examiner did not make a finding as to whether the onset of his obesity was during service, and/or is caused or aggravated by a service-connected disability. Thus, the matter was remanded for an addendum opinion to provide a clarification on these inquiries. In a September 2020 opinion, in pertinent part, the VA examiner opined it is less likely than not (less than 50 percent probability), that any of the Veteran’s service-connected disabilities aggravated the Veteran’s “claimed obstructive sleep apnea/obesity.” As the rationale for this opinion, the VA examiner reasoned that none of these disabilities are known to cause a worsening of upper airway obstruction; his medical records are silent for any documentation that points to any of [his] . . . service-connected disability aggravated his obesity.” He also reasoned that the Veteran’s obesity is just as likely caused by poor diet, genetics and lack of activity by choice. However, this opinion is inadequate as it is not responsive to September 2020 remand directives. Specifically, the VA opinion failed to discuss and determine whether the onset of the Veteran’s obesity was during his active service; and the VA examiner failed to provide a clear explanation as to why none of the Veteran’s service-connected disabilities caused or aggravated obstructive sleep apnea, other than a vague reasoning that his service-connected disabilities are not known to cause “a worsening of upper airway obstruction”, and that “his medical records are silent for any documentation that points to [his] service-connected disabilities [aggravating] his obesity. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, a remand is required for compliance with the September 2020 remand directives, and specifically, an adequate VA opinion that clarifies the onset and impact of the Veteran’s obesity on his obstructive sleep apnea. The matters are REMANDED for the following action: 1. Obtain an addendum opinion for a clarification of the Veteran’s obstructive sleep apnea. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must specifically undertake the following inquiry: a. Opine whether it is at least as likely as not (more than 50 percent probability) the onset of the Veteran’s obesity occurred during his active service. b. Opine whether it is at least as likely as not (more than 50 percent probability) the Veteran’s obesity was caused by a service-connected disability. c. opine whether it is at least as likely as not (more than 50 percent probability) the Veteran’s obesity was aggravated by a service-connected disability. “Aggravation” means an increase in severity of the disorder beyond any medically established baseline. d. In rendering an opinion, the VA examiner should discuss and consider all probative medical evidence, especially including documentation in the Veteran’s STRs about his BMI, as well as notes indicating that he may have been overweight. (Continued on the next page)   A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. G. Jackson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.