Citation Nr: 21021270 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-24 000A DATE: April 12, 2021 ORDER Entitlement to service connection for bilateral pes planus is granted. REMAND Entitlement to service connection for a bilateral foot disability other than bilateral pes planus is remanded. FINDING OF FACT The competent evidence is in relative equipoise as to whether the Veteran’s diagnosed bilateral pes planus is related to his periods of active duty service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1982 to June 1983, from July 1989 to October 1989, from March 2005 to June 2006, and from October 2008 to September 2010, with additional service in the Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). While the Veteran had previously requested a videoconference hearing before the Board, the Veteran submitted a written request to cancel his requested hearing in May 2019. As such, the hearing request is considered withdrawn and the Board may proceed at this time. Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (2019); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2019); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, neither the Veteran nor his representative have raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). These issues were previously before the Board in November 2019, at which time they were remanded in order to obtain an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot disability. Additional VA examinations and opinions were obtained in December 2019, October 2020, and November 2020. Thus, the Board finds that there has been substantial compliance with its previous remand directives as it relates to the claim adjudicated herein. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required). The Veteran seeks entitlement to service connection for a bilateral foot disability. He has asserted that his use of combat boots and running during service caused his current foot disabilities. Foot disabilities diagnosed in the record include pes planus, metatarsalgia, left foot neuroma, and mild osteoarthritic changes. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under the law, active military service includes (1) active duty, but also (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101(24)(B); 38 C.F.R. § 3.6(a). To establish status as a veteran based upon a period of ACDUTRA, a claimant must establish that he or she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509 (2000). The fact that a claimant established status as a veteran for other periods of service does not obviate the need to establish that he or she is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). A review of the Veteran’s service treatment records reveals that he sought treatment for a left foot plantar wart in May 1983, at which time no signs or symptoms of infection were noted. In June 1985, during a period of service with the Army National Guard, the Veteran fell while playing basketball and suffered a left foot contusion. Although there was tenderness over the left fifth metatarsal, X-rays were within normal limits at that time. Later, in July 1987, while still with the Army National Guard, the Veteran sought treatment for a sore right middle toe, which was diagnosed as paronychia (skin infection). The Veteran was provided with a VA Pes Planus (Flat Feet) examination in December 2011, at which time he was diagnosed as having bilateral pes planus. At that time, the Veteran reported that his pes planus had its initial onset in 1982 as a result of wearing combat boots, and asserted that he was initially diagnosed as having flat feet in 1982 at Dwight D. Eisenhower Army Medical Center in Fort Gordon, Georgia. In January 2012, the VA examiner opined that it was at least as likely as not that the Veteran’s current diagnosis of pes planus was related to service. In support of this conclusion, the examiner explained that, “There are no medical records provided that corroborate a diagnosis of pes planus while in service. However, claimant now has pes planus on exam, and a known risk factor for the development of pes planus is injury to feet which can be sustained by prolonged walking or running. Thus, rigorous running required while in service and P.T. would increase risk for development of pes planus.” In July 2016, the Veteran was diagnosed as having metatarsalgia, minimal osteoarthritic changes within both first metatarsophalangeal joints, and left foot neuroma, as well as pes planus. The Veteran was provided with a VA Foot Conditions examination in December 2019, at which time he was diagnosed as having flat foot (pes planus). At that time, the Veteran reported that the condition developed due to the poor construction of the combat boots which he used in basic training and advanced individual training (AIT), and that he was first provided with arch supports in 1983. The VA examiner then concluded that the diagnosed pes planus was at least as likely as not (50 percent or greater probability) incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the examiner explained that: Veteran had no issues related to the claimed Flatfoot condition prior to military service. Onset of the condition was during service, documented in the Service Medical Records. There is evidence of current, chronic and continuous treatment and care. A nexus has been established. Per VA examination January 2011 indicates a known risk factor for the development of pes planus is injury to the feet, which can be sustained by prolonged walking or running. Thus, rigorous running required while in service would increase the risk for development of pes planus. The wearing of heavier weights leads to an increase in plantar pressure and contact area. This may be caused by flattening of the transverse and longitudinal arches. The effects are more evident in subjects with flat feet deformities which seem to flatten at an earlier load condition with a greater amount compared to subjects with normal arches. Improving load distribution should be a main goal in the development of military equipment in order to prevent injuries or functional disorders of the lower extremity. In August 2020, the RO found that the December 2019 VA opinion was insufficient because the examiner indicated an onset of pes planus during service but did not specify the dates or instances in service or where diagnosis was found in service treatment records. As such, the RO determined that an addendum medical opinion was needed. Pursuant to the RO’s August 2020 request, an additional VA opinion was obtained from a different examiner in October 2020. This examiner also concluded that the Veteran’s diagnosed pes planus was at least as likely as not (50 percent or greater probability) incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the examiner explained that, “All available medical records and remand documents were reviewed. Etiology of the veteran's pes planus includes long periods of standing and footwear without proper support. Veteran's activities during active duty service likely results in the pes planus.” The examiner further stated that, “The veteran's diagnosis of bilateral pes planus is related to his increased weight bearing and wearing of boots during active duty service. There is no confirmed diagnosis of metatarsalgia or mortons neuroma.” However, this VA examiner also opined that the Veteran’s diagnosed metatarsalgia and Morton's neuroma were less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the examiner explained that: All available medical records and remand documents were reviewed. STRs revealed treatment of plantar wart 5/9/83 with related use of orthopedic appliance dated 5/19/83. There is also documented left foot contusion 6/15/85 which required treatment on only one occasion. There is no documented diagnosis of pes planus, metatarsalgia or mortons neuroma during active duty service. Post service records shows the veteran' was dx with pes planus during C&P exam dated 12/22/11. Available medical records are negative for diagnosis of metatarsalgia or morton's neuroma. There is no credible medical evidence to support a causal link between plantar wart and pes planus. While there is no specific dx listed for the orthopedic appliance dated 5/19/83, it likely is related to the plantar wart removal as that is only foot diagnosis noted. In October 2020, the RO again found that the VA opinions were inadequate. Specifically, the RO stated that the examiner’s statement that imaging studies were completed and showed no arthritis contradicted a later statement that X-rays were not clinically indicated. Moreover, the RO noted that a November 2016 imaging interpretation assessed left neuroma and metatarsalgia, which contradicted the examiner’s conclusion that there was no confirmed diagnosis of metatarsalgia or Morton’s neuroma. Pursuant to the RO’s request, an additional VA opinion was obtained in November 2020 from a third VA examiner. This examiner opined that all diagnosed foot conditions were less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the examiner explained that: There is no evidence of a foot condition prior to or during service. There is no distinct separation exam, but STR's and all of the interim exams noted above through 1996 are negative for foot conditions. (There is a single reference to paronychia, unrelated) A record 6/8/10 is negative for foot conditions, just prior to separation. Military exams or noted to be thorough, especially with respect to the feet, for evident reasons. It is unlikely a significant foot condition, especially pes planus, would not have been noted throughout the multiple years of service. The first indication of a foot condition arising post service is 10/18/11, with follow-up 12/22/11. The DBQ performed December 2011 showed only pes planus. It is more likely than not that the veteran's conditions arose after 6/8/10 and just prior to the first notations of foot problems 10/18/11. Therefore, there is absolutely no evidence of pes planus while in service. It was not documented until 2011 and specifically not noted 6/8/10. The veteran's additional diagnoses include left foot neuroma, bilateral metatarsalgia and minimal DJD of the first MTP joints bilaterally, diagnosed 7/18/16. There is no evidence of either of these conditions arising during service. The veteran had an ER visit 7/18/16 for acute foot pain with the resultant x-ray findings. It is more likely than not that these conditions had their nexus after service, in ~ 2016. It is less likely than not that the veteran's PP and other diagnosed conditions had their nexus in service. Based on the above evidence, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bilateral pes planus is related to his periods of active duty service. In that regard, the Veteran has provided competent lay evidence of bilateral foot symptomatology during and since service. Additionally, VA examiners in December 2011, December 2019, and October 2020 opined that the Veteran’s current pes planus was at least as likely as not (50 percent or greater probability) incurred in or caused by an in-service injury, event, or illness. The primary evidence weighing against the claim is the November 2020 VA examiner’s opinion, which concluded that none of the Veteran’s diagnosed foot disabilities, to include pes planus, had their onset in or were otherwise related to his periods of active duty service; however, this examiner based his findings on a lack of corroborating medical evidence, and did not consider the Veteran's lay statements regarding the onset and continuity of his symptoms. Accordingly, resolving reasonable doubt in the Veteran's favor, the claim of entitlement to service connection for bilateral pes planus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board emphasizes that its previous Remand explicitly stated that the Veteran’s claim on appeal encompassed all diagnosed foot disabilities noted in the record, to include pes planus, metatarsalgia, left foot neuroma, and mild osteoarthritic changes. As the decision herein grants entitlement to service connection for bilateral pes planus, the Board finds that opinions are still needed as to the likelihood that the Veteran’s diagnosed metatarsalgia, left foot neuroma, and/or mild osteoarthritic changes were caused or aggravated by his service-connected bilateral pes planus. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995); El-Amin v. Shinseki, 26 Vet. App. 136, 140–41 (2013). The matters are REMANDED for the following action: Obtain an addendum opinion regarding the probable etiologies of the Veteran’s diagnosed metatarsalgia, left foot neuroma, and/or mild osteoarthritic changes. The entire claims file must be made available to and be reviewed by the examiner. If an additional in-person examination is deemed necessary, then one shall be provided. An explanation for all opinions expressed must be provided. Specifically, the examiner is asked to opine as to whether the diagnosed metatarsalgia, left foot neuroma, and/or mild osteoarthritic changes are at least as likely as not (50 percent or greater probability) related to or proximately due to the Veteran’s service-connected bilateral pes planus. If not, then the examiner is asked to opine as to whether the diagnosed metatarsalgia, left foot neuroma, and/or mild osteoarthritic changes are at least as likely as not (50 percent or greater probability) aggravated beyond their natural progression by the Veteran’s service-connected bilateral pes planus. Inform the examiner that “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Inform the examiner that “aggravated” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, then the examiner should identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation by a service-connected disability. The examiner should explain in detail any opinion provided and the supporting rationale. If it is not possible to provide any of the requested opinions without resort to speculation, then the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or a deficiency of the individual examiner (i.e., does not have the knowledge or training). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.