Citation Nr: 21039954 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-63 877 DATE: July 1, 2021 REMANDED Entitlement to service connection for shin splints is remanded. Entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2007 to September 2007 and from August 2009 to September 2010, with additional periods of active duty for training (ACDUTRA) from 2011 to 2013. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the medical evidence associated with the record appears to be incomplete. The most recent VA treatment records associated with the record are from March 2016. Any additional VA treatment records should be obtained on remand. 1. Entitlement to service connection for shin splints is remanded. As an initial matter, the Board notes that there is a question as to whether the Veteran has a shin splint disability. A June 2012 VA treatment record included a notation for shin splints. An August 2013 VA knee examiner noted no shin splints during examination. An April 2014 VA knee examiner included a diagnosis of resolved shin splints, but noted that the Veteran currently has occasional shin pain. He opined that there was not sufficient material medical information to establish a nexus between the Veteran's current leg pain and his service. To the extent that the Veteran does not have a diagnosable disability, VA must still consider whether he has functional impairment for which service connection may be granted. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (indicating that the term "disability" refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). Additionally, the Board finds that the April 2014 VA knee examiner failed to consider the Veteran's statements, and the statement submitted by Sergeant J.R.R., addressing complaints of shin pain during service and post-service. Accordingly, a remand to obtain a medical opinion addressing these deficiencies is necessary. 2. Entitlement to service connection for bilateral pes planus is remanded. Because bilateral pes planus was noted at entry, the presumption of soundness is not applicable for this specific disability. Therefore, the remaining issue is whether the disability was aggravated by service. A preexisting disability will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows 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. Temporary or intermittent flare-ups of a preexisting injury or disease during service are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 405 (1996) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)). The September 2016 VA foot examiner stated that there was no evidence of sufficient documentation that the Veteran was evaluated for recurrent foot pain during active military service and that the submitted medical evidence referred to lack of findings compatible with chronic pain in the bilateral feet. The examiner thus opined it is less likely that the Veteran's pes planus was aggravated beyond its natural progression during active duty. The Board finds this opinion inadequate as it relies on the absence of treatment records without consideration of the Veteran's competent reports. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records (STRs) to provide a negative opinion). Accordingly, this issue must be remanded to obtain a new medical examination. The matters are REMANDED for the following action: 1. Obtain copies of the Veteran's VA treatment records from March 2016 to the present. 2. Ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for the disabilities on appeal since his discharge from service (records of which are not already associated with the claim file or established to be unavailable), and to provide all releases necessary for VA to obtain the complete clinical records of all such treatment or evaluation. He should also be requested to specifically identify when the disabilities on appeal were first diagnosed and the diagnosing physician and/or facility. With his cooperation (by providing releases), the agency of original jurisdiction (AOJ) should obtain for the record complete clinical records of all such evaluations and treatment. If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 3. After the above development in #1-2 are completed, arrange for a VA medical examination (or telehealth interview) to determine the nature and likely cause of the Veteran's shin splints The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, and interview and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify whether the Veteran has a diagnosis of bilateral shin splints during the appeal period (from January 2014). If the Veteran does not have a diagnosed disability, please note the functional impairment caused by his shin pain. (b) For each disability diagnosed, or if no disability is diagnosed, for the pain with functional impairment of the shin, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. 4. After the above development in #1-2 are completed, arrange for a VA examination (or telehealth interview) to determine the nature and likely cause of the Veteran's bilateral pes planus. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, and interview and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: Was there an increase in the Veteran's bilateral pes planus during service? If the evidence (to include the Veteran's own reports and statements submitted in support of his claim) reflects such an increase, the examiner should specifically find whether there is clear and unmistakable evidence that any increase was due to the natural progress of the disorder. The Board notes here that the absence of an in-service complaint or diagnosis is not fatal to the claim. See generally Dalton, 21 Vet. App. at 39-40 (holding that an examination must address the Veteran's competent and credible lay evidence); see also Buchanan v. Nicolson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease). 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. T. MATTA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.