Citation Nr: 21042140 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-39 889 DATE: July 12, 2021 ORDER Service connection for pes planus is granted. Service connection for hammertoes is granted. REMANDED Entitlement to service connection for hallux valgus is remanded. FINDINGS OF FACT 1. The Veteran's current hammertoes were incurred in 1991, which was during an active duty period since he was granted Veteran status for his service-connected spinal stenosis, spondylolisthesis, and degenerative disc disease during that same period. 2. The Veteran's current pes planus was noted on clinical examination for entrance into active military service, and was aggravated during the Veteran's active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus are met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for hammer toes are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from February 1987 to June 1987, with subsequent service in the Army National Guard and the United States Army Reserves, which included periods of active duty for training (ACDUTRA) and inactive duty for training (IDT). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran appeared before the undersigned Veterans Law Judge at a videoconference hearing seated in Montgomery, Alabama. A transcript of the hearing has been associated with the electronic claims file. This matter was last remanded in a June 2020 Board decision. At that time, the Veteran had a claim for service connection for a back disability. That claim was granted in a December 2020 rating decision, therefore that claim is no longer before the Board. Service connection for pes planus is granted. The Veteran contends that his pes planus was "noted" on his entrance examination. Additionally, he stated that he had hammertoes/Morton toes due to training and exercise while wearing military boots during his active duty service. See VA 21-4138 Statement in Support of Claim received 8/28/2017 at page 1; see also Hearing Transcript received 1/26/2018 at page 18. After active duty service, the Veteran states that he had surgery on his feet and toes to alleviate pain due to wearing shoes and walking. Transcript, at 21. Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a) (2020). To establish entitlement to service-connected compensation benefits, 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). "Active military, naval, and air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. With respect to aggravation of a noted condition, a pre-existing 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 progression of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. See Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002) (explaining that aggravation of a preexisting condition requires a "worsening of the enduring disability and not merely a temporary flare-up of symptoms associated with the condition causing the disability"). Certain evidentiary presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases that manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service-are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. The advantages of these evidentiary presumptions do not extend to those whose service connection claim is based on ACDUTRA or INACDUTRA periods. Smith v. Shinseki, 24 Vet. App. 40, 44-45 (2010); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period). Once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, veteran status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA. Hill v. McDonald, 28 Vet. App. 243, 251-52 (2016). In this case, the Veteran has been granted service connection for a right inguinal hernia based on his inactive duty for training from February 1987 to June 1987, with a surgery date of January 4, 1989, and as such, has achieved Veteran status for that period. See DPRIS Response received 1/08/2018 at page 23. The Board also finds that since the Veteran was granted service connection for degenerative joint disease with spinal stenosis and spondylolisthesis for an unspecified period of service in 1991, it would also be considered active duty for consideration of the Veteran's claim of service connection for a foot disability. See Rating Decision Narrative received 12/15/2020. The Board must consider all the evidence of record and make appropriate competence, credibility, and weight determinations. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A veteran is competent to report symptoms and experiences observable by his or her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The Board finds that service connection for bilateral pes planus is warranted on the basis of aggravation of a pre-existing, noted condition. In the November 2020 Disability and Benefits Questionnaire (DBQ), the Veteran was diagnosed with pes planus with an onset date of August 1985; hammer toes as of 1991; and hallux valgus as of 2012. See C&P Exam received 11/30/2020 at page 2. At the VA examination, the Veteran consistent with his lay statements, told the VA examiner that his pain began during basic training while wearing boots and progressively worsened since that time. Id. at 3. The November 2020 VA examiner opined that the Veteran's pes planus, which 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. See C&P Exam received 11/30/2020 at page 5. The November 2020 VA examiner based the opinion on his finding that there were no foot complaints during active service. The Board gives the opinion low to no probative weight since it is based on an inaccurate factual premise, e.g. that there was no foot complaints during service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (stating that a medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely."). The Board's review of the Veteran's service treatment record shows that the Veteran's pes planus was noted as asymptomatic on his enlistment examination in August 1985 and again in his entrance examination into the National Guard in July 1989. See STR-Medical received 4/08/2005 at pages 15 and 28; 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). As stated above, the Veteran's active duty dates are February 1987 to June 1987, January 4, 1989 and 1991. The Veteran had complaints of blisters in June 1989, redressing of calluses also in June 1989, and foot surgery for hammertoes in August 1991. Id. at page 19; see also C&P Exam received 11/30/2020 at page 9. The Veteran also submitted a buddy statement wherein his buddy attested to the Veteran being placed on profile for his foot condition due to his inability to wear boots or shoes. See Buddy /Lay Statement received 1/26/2018. Though the buddy statement reflected dates from 1994-2000, the Board finds that this evidence is probative as to the decline of the Veteran's foot condition during the applicable period. Specifically, post-1989 wherein his pes planus was asymptomatic and pre-1994, after which the Veteran was only able to wear soft athletic shoes. At the hearing, the Veteran testified that he had pain and discomfort wearing boots, walking, and marching during his service. See Hearing Transcript received 1/26/2018 at page 18. The Board finds that the evidence shows that the Veteran's pes planus was aggravated during his active duty service and that the VA has not met its burden of showing by clear and unmistakable evidence that the Veteran's pes planus was not aggravated beyond its normal progression by his active duty service. Accordingly, service connection for pes planus is granted. 2. Service connection for hammertoes is granted. In a January 2018 letter, the Veteran's treating podiatrist, Dr. V, stated that the Veteran's hammertoe deformity was closely link to his pes planus or flat feet, and that the Veteran's military related duties such as long standing, marching, heavy lifting and shoe gear all contribute to his foot conditions. See Medical Treatment Record received 1/26/2018. Given that the November 2020 VA examiner found that the date of onset of the Veteran's hammer toes was 1991with surgery in August of 1991, which was during his active duty, the Board finds that the evidence is at least in equipoise that service connection on a direct basis for hammertoes is warranted. REASONS FOR REMAND The Board finds that a remand for service connection for hallux valgus is warranted given that the Veteran is now connected for foot disabilities that may be related to his hallux valgus. As such, the Board will direct that an addendum opinion be given on whether the Veteran's now service-connected disabilities caused or aggravated his hallux valgus. 38 C.F.R. § 3.310. This matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's claimed condition of hallux valgus is at least as likely as not 1) proximately due OR 2) aggravated beyond its natural progression by his service-connected foot disabilities or any other service-connected disability. (Continued on the next page) A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.