Citation Nr: 21032060 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-08 974 DATE: May 25, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected PTSD and duodenal ulcer is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD and duodenal ulcer is remanded. FINDING OF FACT The Veteran's bilateral pes planus was noted on his military entrance examination and, therefore, pre-existed service; while there were in-service bilateral foot complaints, there is no evidence of an in-service increase in severity of pes planus and, in any case, any such increase was clearly and unmistakably due to the natural progress of the disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 1135, 1137, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1969 to May 1971, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service and Campaign Medals. He also had additional service in the United States Army National Guard. This matter is before the Board of Veterans' Appeal (Board) on appeal from rating decisions issued in August 2014 and 2015 by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in December 2020, and the matter has been returned for appellate consideration. For the issue decided herein, the Board finds substantial compliance with its remand directives. Service Connection 1. Entitlement to service connection for bilateral pes planus. The Veteran argues that his bilateral pes planus is related to service. He particularly asserts that his bilateral pes planus was aggravated in service. Service connection may be granted for 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 may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show:" (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 the so-called nexus requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111. Regulation provides that the term noted denotes [o]nly such conditions as are recorded in examination reports, 38 C.F.R. § 3.304(b), and that [h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (b)(1). Here, because the Veteran's November 1968 service entrance examination notes mild bilateral pes planus, the Veteran is not entitled to the presumption of soundness as to this condition. See November 1968 Report of Medical Examination. See 38 U.S.C. § 1111; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). When the presumption of soundness does not apply, the burden of proof shifts to the Veteran to show that the condition increased during service. See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); Horn v. Shinseki, 25 Vet. App. 231 (2012). To the extent the Veteran meets this burden of presenting evidence that at least tends to show that the pre-existing condition, which was noted on entry, did indeed increase in severity during service, the Veteran then becomes entitled to a presumption of in-service aggravation and the burden shifts to the Board to rebut the presumption. See Stover v. Mansfield, 21 Vet. App. 485, 492 (2007). The pertinent inquiry, then, becomes whether the record contains clear and unmistakable evidence that any in-service increase was due to the natural progress of the disease. See Horn, 25 Vet. App. at 235, n. 6. In short, this case requires a two part inquiry: (1) Did the Veteran satisfy his burden of showing that the condition increased during service? If so, then (2) does the record contain clear and unmistakable evidence that the in-service increase was due to the natural progress of the disease (the burden shifting to VA)? Id. With regard to the first inquiry, the service treatment records in and of themselves do not show an increase in severity. Service treatment records show the Veteran entered service with bilateral pes planus and, during service, several complaints of foot pain are documented. A January 1969 letter from a private physician documents that the Veteran had right foot surgery in September 1966 related to an August 1966 injury to the right foot. The Veteran was assessed with a calcaneonavicular bar and treated surgically. Post-operatively in February 1968 the Veteran reported continued bilateral foot pain and shoe corrections were recommended. A May 1969 service record documents that the Veteran presented with a complaint of deformed feet, reporting a history of right foot surgery prior to entrance. The Veteran was advised to wait until he was assigned to Basic Combat Training (BCT) to report to sick call for the problem. Arch supports fitted to shoe size were prescribed. Shortly thereafter, the Veteran was placed on a temporary profile for 6 weeks related to surgery of the right foot that existed prior to service (EPTS). The Veteran also had sustained a gunshot wound (GSW) to the right foot prior to service. A March 1970 service record documents a GSW to the right, EPTS. The Veteran notably reported persistent pain since an injury in May 1969. Foot pain was assessed, and the Veteran was treated as needed for symptoms. The Veteran separated from service in May 1971. The separation Report of Medical Examination dated in March 1971 documents a normal clinical examination of the feet. Again, the record shows the Veteran's foot complaints were largely related to non-service-related injuries (a GSW prior to service and a 1966 pre-service right foot surgery). The 1971 separation examination, moreover, included a clinically normal examination of the feet. However, the Board acknowledges the Veteran's service treatment records do include complaints of foot pain, prescribed arch supports, and temporary profiles. Even presuming these notations showed "some" evidence of an increase in severity of pes planus during service, the Board finds the claim would still fail because the evidence shows any such increase in service was clearly and unmistakably a natural progression of the disease. In May 2013, VA afforded the Veteran a VA examination to address his claim. At that time, objective examination resulted in an assessment of bilateral pes planus. The Veteran reported a history of soreness on the inner right foot with a recent right foot surgery (right medial displacement, calcaneal osteotomy, right flexor digitorum longus tendon transfer and right posterior tibial tendon debridement/lysis). In terms of etiology, the examiner offered the opinion that the bilateral flat feet were not related to service, but rather clearly pre-existed service and became acutely painful in 2013. In December 2013, an addendum to the May 2013 opinion was entered into the record. In the addendum, the examiner explained that it was "less likely than not" that the Veteran's bilateral pes planus was aggravated beyond natural progression in service. The examiner explained that the Veteran had a mild to moderate degree of bilateral pes planus, and that "no evidence of aggravation would be expected." The Veteran received another VA examination in February 2014. Examination resulted in an impression of bilateral pes planus. The examiner concluded that the Veteran's bilateral pes planus "existed prior to service and 'is less likely than not' aggravated beyond normal progression in service." At this time, the examiner noted that the service records documented bilateral pes planus at entrance and during service. However, the Veteran reported that his flat feet became symptomatic about 2 to 3 years prior, or around 2011. In terms of post-service history, the Veteran worked in a food plant, averaging 8 to 10 hours standing/walking on concrete floors. The examiner remarked that "conventional wisdom supports the flat feet became symptomatic around the 2011 timeframe requiring him to be fitted for foot inserts." The examiner concluded that the Veteran's bilateral pes planus was most probably aggravated by his post-service work activity." In November 2019, the Veteran was afforded another VA examination, with pes planus assessed at that time. In terms of etiology, the examiner concluded that it was "less likely than not" that the pes planus was "aggravated beyond its natural progression" in service. The examiner explained that there was no indication of worsening in the medical records and that the current physical examination continued to show mild pes planus. In January 2021, the Veteran was afforded another VA examination. In this case, the examiner concluded that the bilateral pes planus clearly and unmistakably pre-existed service and was clearly and unmistakably not aggravated beyond natural progression by an in-service injury, event, or illness. The examiner explained that while temporary in-service aggravation was possible, there was no evidence of permanent aggravation. In short, the medical evidence is conclusive that the Veteran's pes planus pre-existed service. It was noted on his entrance examination and, therefore, the presumption of soundness does not apply. It is also apparent the Veteran had pre-service surgery to the right foot and a pre-service GSW to the foot. These caused some residual issues during service, necessitating arch supports and a temporary profile, but by the time of the Veteran's separation examination, his feet were evaluated as clinically "normal." As such, VA examiners throughout time have opined that even if the Veteran had temporary flare-ups in service, he did not incur any in-service aggravation of his pre-existing pes planus. Indeed, the January 2021 VA examiner specifically opined that the Veteran's pes planus clearly and unmistakably was not aggravated beyond natural progression. Although the other examiners did not use this exact phrasing, the Board notes this is a legal determination and the Board finds the medical evidence as a whole supports this onerous standard. Indeed, there is no medical evidence that would contradict this finding. The May 2013 opinion reflects that the feet became acutely painful decades after service. The December 2013 opinion indicates that the Veteran's bilateral pes planus was of the same severity at entrance and separation. The February 2014 VA examination indicates that bilateral pes planus was aggravated post-service, particularly by the Veteran's employment. The January 2021 opinion point blank finds the Veteran's pes planus clearly and unmistakable was not aggravated in-service beyond natural progression. Although the examiner stated that temporary aggravation was possible, in this case aggravation is defined for legal purposes as a permanent worsening of the underlying condition beyond the natural progression. Thus, the evidence preponderates against concluding that the clearly and unmistakably pre-existing bilateral pes planus was aggravated beyond normal progression in service or that the bilateral pes planus increased in severity to any permanent degree in service. Accordingly, the claim is denied. The Board acknowledges the appellant's assertions that his bilateral pes planus was aggravated in service. However, while the appellant, as a layperson, is competent to report symptoms such as pain, he is not competent to address the question of aggravation, particularly in a case such as this where the question requires consideration of a lengthy history. The issue is medically complex and beyond the purview of a layperson lacking the necessary education and skills to address such a question. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the appellant's assertions are of limited probative value. REASONS FOR REMAND Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it considers the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Id. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). 1. Entitlement to service connection for a low back disability is remanded. When this issue was last before the Board, it was remanded to obtain an etiological opinion. VA obtained an opinion in January 2021. In the opinion the examiner concluded that it was less likely than not that the Veteran's low back disability was related to service, particularly a 1994 low back injury. The examiner explained that the 1994 injury was merely acute and with no evidence of chronicity. However, the examiner did not stop there, and offered an opinion regarding aggravation of a disability that pre-existed service. In this regard, the examiner concluded that the claimed condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that while temporary aggravation was possible, there was no evidence of permanent aggravation. The opinion is in clear contrast to the Veteran's medical and service records which are devoid of any mention of a pre-existing spine condition. The January 2021 opinion does contain any supporting rationale for this aspect of the opinion and, therefore, further clarification is needed. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD is remanded. The Veteran is claiming that his hypertension is caused or aggravated by the service-connected PTSD. VA obtained an opinion on the question in January 2021. At that time, the examiner found it less likely than not that the PTSD caused or aggravated the Veteran's hypertension. However, the examiner stated that "momentary" aggravation was possible. The January 2021 opinion is insufficient to address the claim. While the examiner adequately addressed the question of whether there was permanent aggravation, the examiner did not sufficiently address the probability that there has been temporary aggravation of hypertension by the service-connected PTSD. In Ward v. Wilkie, 31 Vet. App. 233 (2019), the Court clarified that incremental increase in disability (any additional impairment of earning capacity) in non-service-connected disabilities resulting from a service-connected condition regardless of its permanence may be a basis for secondary service connection under 38 C.F.R. § 3.310. 3. Entitlement to service connection for GERD, to include as secondary to service-connected PTSD and duodenal ulcer is remanded. In January 2021, VA obtained an opinion to address the etiology of the Veteran's claimed GERD. The Board specifically directed that if the examiner found that the Veteran did not have an esophageal condition, including GERD, the examiner was to explain the discrepancy with the April 2016 VA examination report indicating a diagnosis of GERD. The January 2021 VA examiner ruled out GERD as a diagnosis and cited to several records in support of this assessment. However, the examiner did not address the April 2016 VA examination. Accordingly, the opinion is returned. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). 4. Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD and duodenal ulcer is remanded. The Veteran is claiming that his obstructive sleep apnea (OSA) is caused or aggravated by the service-connected PTSD and/or duodenal ulcer. VA obtained an opinion on the question in January 2021. At that time, the examiner explained that while an association between OSA and PTSD had been reported, no causality was shown in the vast majority of articles, thus ruling out any consensus on the issue. The examiner further remarked that the literature and medical psychiatric consensus spoke broadly to "NO permanent aggravation." The examiner did not address the service-connected duodenal ulcer in their opinion. The January 2021 opinion is insufficient to address the claim. While the examiner addressed permanent aggravation, the examiner did not address whether there had been "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233 (2019); see also 38 C.F.R. § 3.310. Moreover, the examiner failed to address the service-connected duodenal ulcer, as requested by the Board. Stegall, 11 Vet. App. 268. Accordingly, the opinion is returned. The matters are REMANDED for the following action: 1. Refer the claims folder to the VA examiner who authored the January 2021 opinion (if available) to obtain a clarification opinion as to the etiology of the Veteran's claimed low back disability. The claims folder must be provided to and reviewed by the examiner in conjunction with the addendum. The examiner must indicate that a review of the claims folder was made. In particular, the examiner is asked to provide an addendum rationale as to the medical and evidentiary basis forming the January 2021 opinion that the Veteran's lumbar spine condition "clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." In the January 2021 opinion, the examiner writes, "Temporary aggravation is plausible, but there is no evidence of permanent aggravation of the pre-existing lumbar spine. A thorough review of medical literature fails to support that the pre-existing condition was permanently aggravated by service." The Board is seeking clarification as to what lumbar spine condition is opined as "clearly and unmistakably" existing before service and what is the rationale behind this opinion. What medical evidence was relied upon and what is the rationale behind finding no in-service aggravation? The examiner should provide a complete rationale for any opinion provided. If the examiner cannot provide any requested opinion without resorting to speculation, they should expressly indicate this in their opinion and provide a supporting rationale as to why any opinion cannot be made without resorting to speculation. 2. Refer the claims folder to the VA examiner who authored the January 2021 opinion (if available) to obtain an opinion as to the etiology of the Veteran's hypertension. The claims folder must be provided to and reviewed by the examiner in conjunction with the addendum. The examiner must indicate that a review of the claims folder was made. The examiner must respond to the following question(s) and provide a full statement of the basis/es for the conclusion(s) reached: Is the Veteran's hypertension aggravated (permanently or temporarily) by his service-connected PTSD? The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should provide a complete rationale for any opinion provided. If the examiner cannot provide any requested opinion without resorting to speculation, they should expressly indicate this in their opinion and provide a supporting rationale as to why any opinion cannot be made without resorting to speculation. 3. Refer the claims folder to the VA examiner who authored the January 2021 opinion (if available) to obtain an opinion as to the etiology of the Veteran's claimed GERD. The claims folder must be provided to and reviewed by the examiner in conjunction with the addendum. The examiner must indicate that a review of the claims folder was made. The examiner must respond to the following question(s) and provide a full statement of the basis/es for the conclusion(s) reached: (a) The VA examiner must clarify if the Veteran currently has a diagnosis of GERD, or any other esophageal condition, or has had a diagnosis of GERD, or any other esophageal condition during the course of the present claim, i.e. since approximately March 2015. If the VA examiner finds that the Veteran does not have GERD or any other esophageal condition, and has not had GERD or another esophageal condition since approximately 2015, the VA examiner must explain the discrepancy with the April 2016 VA examination that found a diagnosis of GERD. (b) If, and only if, GERD and/or any other esophagal condition is diagnosed, the examiner is to state whether GERD, or any other esophageal condition, is at least as likely as not related to the Veteran's active service. (c) If, and only if, GERD and/or any other esophagal condition is diagnosed and the examiner answers question "(b)" in the negative, the examiner is to address whether GERD, or any other esophageal condition is at least likely as not proximately due to or the result of service-connected disability, to specifically include PTSD and duodenal ulcer (and including the effect of any medication taken for service-connected disability). The examiner should provide a complete rationale for any opinion provided. If the examiner cannot provide any requested opinion without resorting to speculation, they should expressly indicate this in their opinion and provide a supporting rationale as to why any opinion cannot be made without resorting to speculation. 4. Refer the claims folder to the VA examiner who authored the January 2021 opinion (if available) to obtain an opinion as to the etiology of the Veteran's claimed sleep apnea. The claims folder must be provided to and reviewed by the examiner in conjunction with the addendum. The examiner must indicate that a review of the claims folder was made. The examiner must respond to the following question(s) and provide a full statement of the basis/es for the conclusion(s) reached: (a) Is it at least as likely as not that the Veteran's sleep apnea is related to active service? (b) If the examiner answers question (a) in the negative, the examiner is asked to address whether it is at least as likely as not that the Veteran's sleep apnea is proximately due to, the result of, or aggravated (permanently or temporarily) by any service-connected disability, to specifically include PTSD and duodenal ulcer (and including the effect of any medication taken for any service-connected disability). The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should provide a complete rationale for any opinion provided. If the examiner cannot provide any requested opinion without resorting to speculation, they should expressly indicate this in their opinion and provide a supporting rationale as to why any opinion cannot be made without resorting to speculation. (Continued on the next page) 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.