Citation Nr: 21029511 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-28 582A DATE: May 13, 2021 ORDER Entitlement to service connection for bilateral flatfeet is denied. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. FINDING OF FACT The Veteran's preexisting bilateral flatfeet were noted on entry into active service and were not aggravated beyond the normal progress of the disorder during military service. CONCLUSION OF LAW The criteria for service connection for bilateral flatfeet are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from January 1988 to January 1992. These matters are before the Board of Veterans' Appeals (Board) from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The case was last remanded in October 2019 and has since been returned to the Board for appellate review. The Board denied the claims for service connection for bilateral hearing loss, tinnitus and a bilateral knee disorder in an October 2019 decision. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2021 Joint Motion for Partial Remand (JMPR), filed by the parties and approved by the Court, the portion of the Board decision denying entitlement to service connection for bilateral hearing loss, tinnitus, and a bilateral knee disorder were vacated and remanded to the Board for further adjudication consistent with the JMPR. The October 2019 Board decision also remanded the issue of service connection for bilateral flatfeet for an etiology opinion and relevant medical records. Such an etiology opinion was obtained in February 2020 and updated VA treatment records have been associated with the record. A December 2019 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain treatment records on his behalf; the Veteran did not respond to this letter. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted 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(a). Service connection requires: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Board notes that the Court has held that the presumption of aggravation under 38 U.S.C. § 1153 only applies in cases where a preexisting disability was noted at the service entrance examination. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Otherwise, the matter goes to the analysis of the presumption of soundness. The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see Horn, 25 Vet. App. at 234-35 (holding that the burden of proof in presumption of soundness cases rests with VA); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Generally, as a matter of law, the presumption of soundness may be rebutted by clear and unmistakable evidence consisting of a veteran's own admissions during clinical evaluations of a pre-service history of symptoms. Thus, in the absence of any contention that the appellant never made the statements attributed to him (reporting pre-existing symptoms), those statements alone may rebut the preexistence prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 237-38 (2012) (citing Doran v. Brown, 6 Vet. App. 283, 286 (1994)). Likewise, a later medical opinion based on statements made by the veteran about the pre-service history of his condition may be sufficient to rebut the preexistence prong of the presumption of soundness, notwithstanding the lack of contemporaneous clinical evidence or recorded history. Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000); Horn, 25 Vet. App. at 237-38. The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (stating that a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe, 7 Vet. App. at 246 (1994) (finding that supporting medical evidence is needed to establish the presence of a preexisting condition). A preexisting injury or disease will be considered to have been aggravated by active 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(a). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jenson v. Brown, 4 Vet. App. 304, 306-307 (1993) (citing Hunt v. Derwinski, 1 Vet. App. 292 (1991)). However, if an increase in disability is shown, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that his bilateral flatfoot is etiologically related to his active service. In a May 2021 Appellate Brief, the Veteran's representative generally asserts that the further development completed on Board remand supports a "benefit in doubt" evidence for the Veteran. Specific argument in support of this appeal has not been submitted. Service treatment records reflect that the Veteran's feet were found to be abnormal and that mild asymptomatic pes planus was noted on an October 1987 entrance examination. A July 1989 note reflects that the Veteran sprained the top part of his left foot. An October 1991 service discharge examination found the Veteran's feet to be normal. The Veteran denied that he experienced, or that he had ever experienced, foot trouble and denied that ever had any illness or injury other than those already noted in an October 1991 discharge Report of Medical History. Here, the Board finds that the medical evidence shows that the Veteran's bilateral flatfeet preexisted his active service as supported by the October 1987 entrance examination. Thus, there is clear and unmistakable evidence that the Veteran was not sound upon entry of service and as such, the presumption of soundness does not apply. The Veteran's bilateral flatfeet therefore preexisted service and the evidence must show that there was an increase in the disability during service to trigger the presumption of aggravation. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Initially, the burden is on the Veteran to establish an increase in severity in service. Wagner v. Principi, supra. If the Veteran is able to demonstrate an increase in severity in service, then the presumption of aggravation attaches and the burden shifts to the VA to rebut the presumption by clear and unmistakable evidence that the worsening of pre-existing condition was due to its natural progression. Id.; see also Horn v. Shinseki, 25 Vet. App. 231, 235, 238-39 (2012). The Veteran was provided a February 2020 VA examination. The examiner opined that the Veteran's bilateral flatfoot was less likely as not aggravated beyond its natural progression by service as there was no plantar fascial or heel tenderness, pulses were normal and there were no unusual callouses. The examiner noted that there was minimal tenderness to the hallux metatarsophalangeal (MTP) joint bilaterally with no restrictions or limitations of any functions such as standing, walking, running or jumping. The examiner further reasoned that the Veteran's bilateral flatfoot did not prevent him from performing any physical activity during service or did ot require a profile during service. Based on the evidence of record, the Board finds that the Veteran's bilateral flatfeet were not aggravated during service as there is no evidence of worsening or an increase in severity. Significantly, an October 1991 service discharge examination found the Veteran's feet to be normal bilaterally. The Veteran denied that he experienced, or that he had ever experienced, foot trouble and denied that ever had any illness or injury other than those already noted in an October 1991 discharge Report of Medical History. The Board further finds the February 2020 VA opinion to be probative since the VA examiner reviewed the Veteran's claims file and medical history, considered the Veteran's report of symptoms, examined the Veteran, and provided a rationale for the opinion. The Board finds that the opinion is based upon sufficient facts and data and this opinion is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner, as a medical professional, has the skill and expertise to render this medical opinion and provide an assessment as to whether the bilateral flatfeet was aggravated in active service beyond the natural progression of the disease. In evaluating the probative value of medical statements, the Board examines factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no contrary probative opinion of record, as the Board found the October 2016 opinion to be inadequate in its October 2019 remand. The Board notes that the Veteran is claiming that his bilateral flatfoot is the result of service or was aggravated by service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's bilateral flatfoot and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current flatfoot symptoms, however, the Board accords his statements regarding the etiology of such a disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran has any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the Veteran is nonprobative evidence. As discussed, to the extent that the Veteran contends that the bilateral flatfoot was caused by or aggravated beyond natural progression during his active service, the Board finds that contemporaneous medical evidence showing normal finding during the October 1991 separation medical report of examination and the Veteran's own denial of foot troubles during the October 1991 separation medical report of history to be of greater probative value. In sum, the weight of the competent and credible evidence demonstrates that the currently diagnosed bilateral flatfoot preexisted prior to service and was clearly and unmistakably not aggravated by service. Accordingly, for the foregoing reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for bilateral flatfeet, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Bilateral Hearing Loss and Tinnitus The Veteran's claims for bilateral hearing loss and tinnitus were previously denied by the Board because the claims file did not support a current diagnosis of bilateral hearing loss or tinnitus and the Veterans in-service noise exposure was not sufficient to show in-service event or injury for the purposes of warranting a VA examination. The January 2021 JMPR remanded the claims for the Board to determine whether a VA examination was required. In the August 2013 Statement in Support of Claim, the Veteran asserted that he was exposed to loud noise while serving with the medical department in Berlin while conducting several field operations to test the unit's readiness. The Veteran's October 1986 enlistment examination shows normal hearing bilaterally. While the Veteran was not shown to have hearing loss for VA purposes in the October 1991 separation examination, his audiogram for the left ear showed frequencies of 25 decibels at 500 Hz, with the 1000, 3000, and 4000 Hz frequencies showing at least 15 decibels. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As the Veteran's enlistment and separation audiograms show a potential shift in hearing, in concert with the Veteran's claim of in-service noise exposure, the Board finds that a VA examination is warranted to determine the nature and etiology of the Veteran's claimed bilateral hearing loss. See Shedden v. Principi, 381 F.3d at 1167; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Bilateral Knee Disorder The Veteran's claim for bilateral knee disorder was previously denied by the Board because the October 2016 VA examiner opined that the Veteran's bilateral knee disorder was less likely than not incurred in and due to his time in service. In support of the conclusion, the examiner noted that the Veteran was not diagnosed with the patellofemoral syndrome in service, that significant time had lapsed between the separation and the diagnosed knee disorder, and that the left knee strain that occurred in service would not result in patellofemoral syndrome. However, as detailed in the January 2021 JMPR, the examiner did not explain why the patellofemoral syndrome would not result from knee strain suffered by the Veteran during service. See Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra. The examiner also did not describe the medical history of the Veteran's bilateral knee disability, such as when the current symptoms began or how the current symptoms arose if not due to in-service knee strain. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). As such, an addendum opinion that addresses the etiology of the Veteran's claimed bilateral knee disorder should be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran's claimed bilateral hearing loss and tinnitus. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is at least as likely as not (50 percent or better probability) that any currently present bilateral hearing loss, had its onset during his active service, or is otherwise etiologically related to such service? The examiner should consider the Veteran's in-service noise exposure to be conceded. (B) Is at least as likely as not (50 percent or better probability) that any currently present tinnitus, had its onset during his active service, or is otherwise etiologically related to such service? The examiner should consider the Veteran's in-service noise exposure to be conceded. The examiner must consider the Veteran's statements regarding the onset and continuity of his symptoms. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran's claimed bilateral knee disorder. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is at least as likely as not (50 percent or better probability) that any currently present bilateral knee disorder had its onset during his active service, or is otherwise etiologically related to such service? (B) Explain whether the currently diagnosed patellofemoral syndrome is related to the in-service knee strain and if not, explain why knee strain would not eventually lead to patellofemoral syndrome. The examiner is asked to provide relevant medical history regarding the Veteran's current bilateral knee disability such as how the current symptoms began or arose (Continued on the next page) The examiner must consider the Veteran's statements regarding the onset and continuity of his symptoms. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. J. Kim, Associate 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.