Citation Nr: 21022303 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 05-17 549A DATE: April 15, 2021 ORDER Service connection for a bilateral foot disability, diagnosed as pes planus with plantar fasciitis, degenerative joint disease of the tarsometatarsal articulation, and metatarsalgia, is granted. REMANDED The claim for service connection for a bilateral eye disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that the Veteran’s bilateral pes planus with plantar fasciitis, degenerative joint disease of the tarsometatarsal articulation, and metatarsalgia, were incurred during service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability, diagnosed as pes planus with plantar fasciitis, degenerative joint disease of the tarsometatarsal articulation, and metatarsalgia, have been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to April 1972 and from October 1990 to June 1991, with additional periods of active duty for training and inactive duty for training with the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2009, the Veteran testified at a hearing before a Veterans Law Judge who is no longer with the Board. In June 2012, he testified at a hearing before the undersigned Acting Veterans Law Judge. Transcripts are of record. In a May 2016 decision, the Board remanded the claim for service connection for a bilateral foot disability and denied the claim for service connection for a bilateral eye disability. The Veteran appealed the denial of service connection for a bilateral eye disability to the Court of Appeals for Veterans Claims (Court). In August 2017, the Court granted a Joint Motion for Remand, vacating the portion of the Board’s May 2016 decision denying service connection for a bilateral eye disability and remanding the claim for further adjudication. In September 2017, the Board remanded the claim for service connection for a bilateral foot disability for further development. In November 2017, the Board remanded the claim for service connection for a bilateral eye disability for further development. Both claims were again remanded in December 2018, July 2019, and December 2020. The Board also remanded claims for service connection for hypertension and for a gastrointestinal disorder other than diverticulitis, claimed as gastroesophageal reflux disease (GERD) and chronic gastritis, in December 2020. Since service connection was subsequently established for hypertension and GERD with irritable bowel syndrome, those claims are no longer before the Board on appeal. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove 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). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran is presumed to have been 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded on a veteran’s examination report are to be considered as “noted.” 38 C.F.R. § 3.304(b). When a preexisting condition is not noted on a veteran’s entrance examination, the burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 1. Entitlement to service connection for a bilateral foot disability Upon review of the record, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that his bilateral foot disabilities, diagnosed as pes planus with plantar fasciitis, degenerative joint disease of the tarsometatarsal articulation, and metatarsalgia, were incurred during his second period of active duty. Service treatment records show that the Veteran’s feet were found to be normal during a February 1967 physical examination conducted upon his entrance into his first period of active duty, and he denied any history of foot trouble on an accompanying report of medical history. Likewise, a November 1971 report of medical examination shows that the Veteran’s feet were normal upon his discharge from that period of service. Thereafter, periodic National Guard physical examinations conducted in January 1976, January 1980, January 1984, and January 1988 show that the Veteran’s feet were found to be normal, and he denied any history of foot trouble on accompanying reports of medical history. The record does not contain a report of medical examination conducted upon the Veteran’s entrance into his second period of active duty in October 1990. Service treatment records from that period of service show that in April 1991, the Veteran reported bilateral foot pain and pain around the medial aspect of the big toes for the past six months. The treatment provider observed calluses on both medial big toes and provided the Veteran with arch supports. A May 1991 report of medical history shows that the Veteran denied any foot trouble. However, a service treatment record dated the following day shows that the Veteran again reported bilateral foot pain, and a physical examination revealed decreased transverse and plantar arches bilaterally. The assessment was metatarsalgia. The Veteran was discharged from his second period of active duty in June 1991. In August 1991, the Veteran filed a claim for service connection for a bilateral foot disability. During a December 1991 VA examination, the Veteran reported bilateral foot pain, which began while serving at Fort Hood from November 1990 to December 1990. He described pain around the tarsometatarsal articulation of both feet, the heels, and the longitudinal arches, which was aggravated by walking and relieved by rest. He also reported substantial relief of his pain from the polypropylene orthotics he received during service in January 1991. A physical examination revealed tenderness on the plantar aspect of both calcanei and throughout the plantar fascia of both feet, as well the tarsometatarsal articulation of the feet. The assessment was bilateral heel spur syndrome with plantar fasciitis and degenerative joint disease of the tarsometatarsal articulation. The examiner did not provide an opinion as to whether the Veteran’s foot disabilities were related to service. Subsequent post-service treatment records show intermittent complaints of bilateral foot pain and diagnoses of pes planus, plantar fasciitis, metatarsalgia, and degenerative joint disease. An April 2004 VA podiatry treatment record shows that the Veteran reported having flat feet all of his life. The Veteran underwent a VA foot examination in August 2013, and the examiner opined that it was less likely than not that a current foot disability was incurred in or caused by service. In support of this, the examiner explained that the Veteran sought treatment for foot pain and calluses during his second period of active duty, but his “1991 short Desert Storm/Shield tenure was without aggravation or nexus.” In the May 2016 remand, the Board determined that another opinion was needed because the August 2013 opinion was not supported by a rationale and the examiner did not apply the proper legal standard for determining whether the Veteran’s foot conditions existed prior to service and whether they were aggravated by service. The Veteran underwent another VA foot examination in January 2018, during which he reported entering service with asymptomatic pes planus, but stated that his feet are now painful, and his symptoms are controlled with orthotics. The examiner opined that it was less likely than not that a current foot disability was incurred in or aggravated by service. In support of this, the examiner explained that the Veteran’s pes planus clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated by service. In the December 2018 remand, the Board determined that an addendum opinion was required because the January 2018 opinion was not supported by a rationale and it did not address the Veteran’s other diagnoses of plantar fasciitis, metatarsalgia, and arthritis. The Veteran underwent another VA foot examination in February 2019, during which he reported progressively worsening bilateral foot pain, which began with ruck marches and running during service. The examiner opined that it was less likely than not that a current foot disability was incurred in or caused by service. In support of this, the examiner explained that the Veteran’s May 1991 report of medical history showed normal feet, and he denied any foot trouble on an accompanying report of medical history. The examiner also noted that the Veteran reported having flat feet all his life during an April 2004 podiatry visit. In the July 2019 remand, the Board determined an addendum opinion was needed because the February 2019 VA examiner did not address the Veteran’s in-service treatment for foot pain or December 1991 VA examination findings and did not address the fact that the Veteran sought treatment for bilateral foot pain and was diagnosed with metatarsalgia the day after the May 1991 medical examination was conducted. In December 2019, another VA examiner reviewed the evidence of record and opined that it was less likely than not that a current foot disability was incurred in or caused by service. In support of this, the examiner explained that although the Veteran reported foot pain first beginning during his second period of service, a May 1991 report of medical examination showed no foot complaints or foot trouble. The examiner concluded that “given the length of the Veteran’s final military career, and lack of complaints for a foot condition during service, it is not likely that his current conditions are due to service.” In the December 2020 remand, the Board found an addendum opinion was needed because the December 2019 VA examiner again did not address the Veteran’s in-service treatment for foot pain or December 1991 VA examination findings and because the examiner’s statement that there was “a lack of complaints for a foot condition during service” are inaccurate, as the Veteran was treated for foot pain on at least two occasions during his second period of service. The Veteran underwent another VA foot examination in January 2021, and the examiner opined that it was less likely than not that a current foot disability was incurred in or caused by service. In support of this, the examiner indicated that the Veteran was born with pes planus, and “there is nothing in his medical records that supports a worsening of this condition.” The examiner explained that in 1991, the Veteran was serving on full-time active duty and wearing boots daily, which probably had poor arch support. The examiner indicated that the Veteran was given arch supports, which remedied the situation, noting that metatarsalgia is a complaint of pain in the area of the metatarsals, not a diagnosis. The examiner further indicated that the bilateral plantar fasciitis was the only foot condition the Veteran was not born with, and he was first diagnosed with it in 2004. The Board assigns little probative value to this opinion because the Veteran was first diagnosed with plantar fasciitis in 1991, not 2004. Additionally, the examiner did not address the Veteran’s diagnosis of degenerative joint disease or provide a rationale to support the opinion that he was born with pes planus. The Board acknowledges that most of the VA examiners indicated that the Veteran’s pes planus preexisted both periods of service; however, pes planus was not noted on the Veteran’s February 1967 report of medical examination and the record does not contain a report of medical examination conducted upon the Veteran’s entrance into his second period of active duty. Therefore, the Veteran’s feet are presumed to have been in sound condition unless there is clear and unmistakable evidence that a foot disability existed prior to service and was not aggravated by service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner, 370 F.3d at 1096. None of the VA examiners have provided an adequate rationale to support the opinion that the Veteran’s pes planus clearly and unmistakably existed prior to service; rather, all the examiners’ opinions appear to be based solely on the Veteran’s statement many years after service that he had flat feet his whole life. However, the Veteran underwent at least six physical examinations prior to his second period of active duty, and none of those examination reports indicate that the Veteran had pes planus or a history of foot pain. Moreover, there are no treatment records showing a diagnosis of pes planus or a history of foot pain prior to either period active duty. When the Veteran first sought treatment for bilateral foot pain in April 1991, he related the onset of his pain to about six months earlier, while he was on active duty. This is consistent with the Veteran’s testimony during the June 2009 and June 2012 Board hearings that he first began having foot pain during his second period of active duty, as well as several other statements he made indicating that his bilateral foot pain began while serving at Fort Hood from November 1990 to December 1990. Additionally, there is no indication in the record that the Veteran was ever prescribed orthotic inserts prior to 1991, and subsequent treatment records show that he has used them ever since. Based on the foregoing, the Board cannot say that the record clearly and unmistakably shows that the Veteran had a preexisting foot disability that was not aggravated by service. Accordingly, the presumption of soundness is not rebutted, and the Veteran’s feet are presumed to have been in sound condition when he entered his second period of active duty. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner, 370 F.3d at 1096. The question that remains to be resolved now is whether service connection is warranted for a bilateral foot disability based on service incurrence. With respect to the diagnosis of degenerative joint disease of the tarsometatarsal articulation, the record shows that the Veteran was first treated for foot pain during his second period of active duty. A little over a month after discharge, the Veteran filed a claim for service connection for a bilateral foot disability. During a VA examination conducted pursuant to that claim, there was objective evidence of tenderness around the tarsometatarsal articulation of both feet, and the Veteran was diagnosed with bilateral degenerative joint disease of the tarsometatarsal articulation. Thus, the Veteran’s arthritis of the tarsometatarsal articulation manifested to a compensable degree within one year of discharge from his second period of active duty. See 38 C.F.R. § 4.59 (painful joints warrant a minimum compensable rating). As that period of service was longer than 90 days, and there is no affirmative evidence that the Veteran’s arthritis was not incurred during that period of service, it is presumed to have been incurred during service. See 38 C.F.R. §§ 3.307, 3.309 (where a veteran served continuously for 90 days or more, and arthritis that becomes manifest to a compensable degree one year of the date of termination of such service shall be presumed to have been incurred in service). Accordingly, service connection for degenerative joint disease of the tarsometatarsal articulation is granted on a presumptive basis. With respect to the Veteran’s other diagnosed foot disabilities of bilateral pes planus with plantar fasciitis and metatarsalgia, the Board concludes that it is at least as likely as not that they were also incurred during service. As found above, the Veteran’s feet were in sound condition when he entered his second period of active duty. During that period of service, the Veteran first complained of foot pain, was found to have decreased transverse and plantar arches, and was diagnosed with metatarsalgia. He was subsequently diagnosed with plantar fasciitis within a few months of discharge. Subsequent treatment records show continued intermittent complaints of bilateral foot pain and diagnoses of pes planus, plantar fasciitis, and metatarsalgia. Although the VA examiners provided negative nexus opinions, VA has been unable to obtain a medical opinion from a VA examiner that substantially complies with the Board’s remand instructions despite numerous attempts. Based on the foregoing, and after resolving all doubt in favor of the Veteran, the Board finds it is at least as likely as not that the Veteran’s diagnosed foot conditions of bilateral pes planus with plantar fasciitis and metatarsalgia were incurred during service. Accordingly, service connection for these conditions is granted on a direct basis. REASONS FOR REMAND 1. The claim for service connection for a bilateral eye disability is remanded. The Veteran seeks service connection for a bilateral eye disability, which he asserts was incurred during service or alternatively, is secondary to his hypertension. In a July 2013 remand, the Board instructed that if the record shows that the Veteran’s hypertension is related to service, then the Veteran should be scheduled for a VA eye examination and a medical opinion should be obtained as to whether a current eye disability was caused or aggravated by his hypertension. The opinion obtained in August 2013 was not supported by rationale. Since service connection for hypertension was recently granted, an addendum opinion is needed. The matter is REMANDED for the following action: 1. Provide the claims file to an appropriate VA examiner to obtain an opinion with respect to the claim for service connection for a bilateral eye disability. Do not schedule the Veteran for another examination unless it is deemed necessary by the examiner to respond to the questions presented. After a review of the claims file, the examiner should address whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s nuclear sclerosis cataracts were caused or aggravated (i.e., caused an increase in severity of) by his service-connected hypertension. The examiner must explain why or why not. 2. If the claim remains denied, issue a supplemental statement of the case. D. VAN WAMBEKE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.