Citation Nr: 21030319 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-06 028 DATE: May 18, 2021 REMANDED Entitlement to service connection for left foot pes planus, to include as secondary to service-connected right foot degenerative joint disease (DJD), is remanded. Entitlement to service connection for left foot hallux valgus, to include as secondary to service-connected right knee DJD, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1988 to June 1992. This appeal comes before the Board from an April 2014 rating decision that denied entitlement to service connection for left foot pes planus with hallux valgus and gout. In February 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via video conference. A transcript of the hearing is associated with the claims file. In July 2019, the Board denied service connection for pes planus and gout but remanded the issue of service connection for hallux valgus for additional development. The Veteran appealed the July 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion for Partial Remand (JMR) wherein the parties agreed that the portion of the July 2019 decision that denied service connection for pes planus should be vacated and the issue remanded to the Board for further development. In December 2020, the Board remanded the pes planus claim pursuant to the JMR and Court Order and also remanded the hallux valgus claim for additional development. Both claims have returned to the Board for further consideration but, for reasons explained below, the Board finds an additional remand is needed. 1. Entitlement to service connection for left foot pes planus, to include as secondary to service-connected right foot degenerative joint disease (DJD) is remanded. In this case, asymptomatic pes planus was noted on the Veteran's May 1988 enlistment examination. Therefore, the Veteran's claim is one for aggravation, either during his period of active service or as a result of his service-connected right knee disability. The Board notes, however, that the definition for aggravation in the context of the presumption of aggravation under 38 U.S.C. § 1153 is different from that used in the context of secondary service connection. A pre-existing injury or disease will be considered to have been aggravated during service when there is a permanent worsening of the disability during service. Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). In the context of secondary service connection, however, aggravation is defined as "any increase in disability," including any incremental increase or additional impairment of earning capacity in the nonservice-connected disability as a result of the service-connected disability. See Ward v. Wilkie, 31 Vet. App. 233, 238-39 (2019). In February 2021, a VA physician opined that the Veteran's pre-existing pes planus was not aggravated during service and was not caused or aggravated by his service-connected right knee disability. See February 2021 VA opinion. However, the rationale provided in support of the opinions are inadequate and confusing. With respect to in-service aggravation, the VA examiner stated that there is no evidence of aggravation of the asymptomatic pes planus in the service treatment records (STRs) but then stated that the pes planus became symptomatic as evidenced by the Veteran's complaints of pain. The examiner also noted that the post-service medical records show worsening but stated that the post-service medical records cannot be taken as evidence aggravation of the disability because the symptoms the Veteran describes as aggravation of pes planus are due to his bunions (hallux valgus) and gout, which are separate conditions that are not related to his pes planus or service. As noted, the VA examiner also opined that the Veteran's pre-existing pes planus is not aggravated by his service-connected right knee disability and referred to the rationale provided regarding in-service aggravation, again noting that there is no evidence of aggravation as the Veteran's added symptomatology due to bunions and gout are separate diagnoses that are not related to pes planus or his period of service. In March 2021, the VA examiner provided an addendum opinion in which she stated that the Veteran's pes planus is not aggravated beyond its natural progression due to his having put more pressure on his foot because of the right knee disability. By way of explanation, the examiner stated that this question was very well answered with a rationale in February 2021 and, again, reiterated that the added symptomatology due to bunions and gout are not evidence of aggravation, as they are separate diagnoses not related to pes planus. The February and March 2021 VA opinion are inadequate for the following reasons. First, it does not appear that the VA examiner was aware of the different definitions of aggravation in the context of in-service aggravation and secondary service connection, as she relied upon the same rationale for both theories of entitlement. Additionally, when discussing the lack of evidence showing in-service aggravation, the examiner noted that the Veteran's pre-existing pes planus was asymptomatic but became symptomatic during service, which seems to suggest worsening during service and, while she noted that pes planus was not noted on the separation examination, she did not consider the Veteran's assertions that his foot pain never went away after he completed boot camp. See February 2019 hearing transcript, p. 11. In discussing in-service aggravation and aggravation due to the service-connected right knee disability, the VA examiner also placed significant weight upon a finding that the worsening shown post-service was due to the Veteran's bunions and gout which resulted in additional foot symptoms that are separate from his pes planus and are not representative of an increase in his pes planus disability. While this may be true, this finding does not consider the Veteran's report that his pes planus is manifested by symptoms that are different from those that he experiences in his entire foot and as a result of his hallux valgus and gout. Indeed, the Veteran testified that his pes planus feels like someone is pulling his foot apart on the bottom of his foot and is exacerbated by standing and walking all day; however, he testified that he also experiences numbness in his entire foot, tingling in his big toe, a tender post-surgery scar, and pain due to hallux valgus that is reportedly worse than the pes planus pain. See February 2019 hearing transcript, pp. 3-6, 9-10. The Veteran's statements suggest that his pes planus increases in severity without consideration of the pain and other foot symptoms he experiences and raises a question of whether the increased pes planus pain is due to any manifestations or functional impairment caused by the service-connected right knee disability, such as altered gait. Because the opinions of record do not adequately consider the different definitions of aggravation or the Veteran's assertions regarding the continued nature and severity of his pes planus during and after service, the Board finds the opinions are inadequate, thereby necessitating the need for another remand. 2. Entitlement to service connection for left foot hallux valgus, to include as secondary to service-connected right knee DJD is remanded. In December 2020, the Board remanded this claim to obtain a VA opinion that addressed whether the Veteran's hallux valgus has its onset during or was first manifested during service or, in the alternative, was caused or aggravated by his service-connected right knee disability. In response, a VA physician opined that it is less likely than not that the Veteran's hallux valgus had its onset during service or is secondary to the service-connected right knee disability. In relevant part, the examiner noted that there is no evidence of hallux valgus in the STRs and provided a discussion about the causes of hallux valgus which included wearing unsuitable shoes, especially those with heels. See December 2020 VA opinion. The Veteran has asserted that he developed hallux valgus from wearing boots he was issued in service and the way his foot was positioned in the boots as a result of his pes planus. See February 2016 VA Form. It does not appear that the VA examiner considered the Veteran's assertion in this regard and, because she noted that hallux valgus is usually caused by wearing unsuitable shoes, there remains a question of whether the Veteran's hallux valgus developed as a result of his military service. Therefore, a remand is needed that addresses this question with consideration of all relevant evidence of record. The matters are REMANDED for the following action: 1. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the Veteran's left foot pes planus. After reviewing the claims file, the examiner is requested to provide an opinion as to the following: (a) Is it as likely as not (a 50 percent probability) that there was permanent worsening of the pes planus disability during service? In answering the foregoing, the examiner must consider the manifestations prior to, during, and after service, including as shown by the medical evidence of record and reported by the Veteran. The examiner must consider and address the Veteran's report that his pes planus pain never went away after becoming symptomatic during service. The examiner must also address the Veteran's nature and severity of the symptoms associated with his pes planus, as opposed to his other foot disabilities, such as hallux valgus and gout. The examiner is advised that temporary or intermittent flare-ups of a pre-existing injury or disease during service are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. The examiner may also wish to address whether the Veteran's pre-existing pes planus was latent at entrance into service and followed by an exacerbation of symptoms during service. (b) If the answer to (a) is yes i.e., pes planus was permanently worsened during service - is there is clear and unmistakable (i.e., undebatable) evidence that the increase in disability was due to the natural progress of the disease? If so, identify such evidence. (c) Regardless of the answers to (a) or (b), is it as likely as not (a 50 percent probability) that there is any incremental increase in the severity of the Veteran's pes planus as a result of his service-connected right knee disability, to include any manifestations thereof such as altered gait, weakness, or limitation of motion? The examiner must address the contention that the Veteran's left foot is aggravated because his right knee disability causes him to place more pressure on his foot. If applicable, a full discussion of any similarities or differences in the left and right foot should be provided. If aggravation is found, the examiner must attempt to establish a baseline level of severity of pes planus prior to aggravation by the service-connected disability. In answering each of the foregoing, the examiner must consider the lay and medical evidence of record. A well-reasoned rationale must be provided in support of any opinion offered. 2. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the Veteran's left foot hallux valgus. After reviewing the claims file, the examiner is requested to provide an opinion as to whether it is as likely as not (a 50 percent probability) that the Veteran's left foot hallux valgus developed as a result of his active service. The examiner is also advised that the lack of objective evidence of the claimed disability during service is not fatal to the Veteran's claim. Instead, the examiner should consider all relevant evidence of record, including the service and post-service medical evidence and lay evidence of record. The examiner must specifically address the Veteran's assertion that he developed hallux valgus from wearing the boots he was issued in service and the way his foot was positioned in the boots as a result of his pes planus. The examiner is advised that the Veteran is competent to report the nature, onset, and progression of his symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A well-reasoned rationale must be provided in support of any opinion offered. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.