Citation Nr: 21053994 Decision Date: 08/31/21 Archive Date: 08/31/21 DOCKET NO. 18-00 777 DATE: August 31, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a breathing condition is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a bilateral foot disability, to include pes planus and plantar fasciitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1965 to June 1967, to include service in the waterways of the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in May 2015 and June 2015 of a Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Board notes that the Veteran's claims file reveals that there may be outstanding Social Security Administration (SSA) records that are relevant to the Veteran's claims. Specifically, during the April 2015 VA examination, the Veteran reported being in receipt of Social Security Disability (SSD) and in a January 2020 statement, the Veteran indicated he received SSD when he stopped working in 2004. These Social Security records may contain evidence that pertains to the Veteran's claims before the Board. As such, VA must make efforts at this time to obtain any outstanding records. 38 C.F.R. § 3.159(c)(2); see also Baker v. West, 11 Vet. App. 163, 169 (1998)(holding that VA's duty to assist includes obtaining Social Security Administration records); Golz v. Shinseki, 590 F.3d 1317, 1323 (2010)(clarifying that VA's duty to obtain Social Security records applies only to records relevant to a Veteran's present claim). On remand, these records should be associated with the Veteran's claims file. 1. Entitlement to service connection for a back disability is remanded. The Veteran was afforded a VA back examination in April 2015. After a review of the claims file and an examination of the Veteran, the examiner found no nexus between the Veteran's in-service treatment and his stopping work in 2004. The examiner stated that the Veteran had a motor vehicle accident in service but did not complain of back pain afterwards until he was 58 years old. Accordingly, the examiner found it "at least as likely as not" that the Veteran's lumbar spine chronic strain with degenerative changes was caused by his history of over 40 years doing physical labor. Unfortunately, this opinion is not adequate to adjudicate the claim. After obtaining any available Social Security Disability records, an opinion should be obtained regarding whether it is at least as likely as not that the Veteran's current back disability was caused by or is otherwise etiologically related to his period of active service, to include consideration of his reports of ongoing back pain since service. 2. Entitlement to service connection for a breathing condition is remanded. 3. Entitlement to service connection for hypertension is remanded. The Veteran asserts that he has a breathing condition and hypertension related to his period of active service. The Veteran is presumed to have been exposed to herbicide agents during his period of active service. See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23 (June 25, 2019). The Veteran's claimed disabilities are not among those the VA recognizes as associated with exposure to herbicide agents. However, the Board notes that the Veteran is not precluded from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, after obtaining any available Social Security Disability records, an opinion should be obtained regarding the nature and etiology of the Veteran's claimed breathing/respiratory disorder and hypertension. 4. Entitlement to service connection for a bilateral foot disability, to include pes planus and plantar fasciitis, is remanded. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Medical evidence of record contains diagnoses of pes planus and plantar fasciitis. Thus, while the Veteran specified that he was seeking service connection for a bilateral foot condition, the claim has been broadened to include all disabilities of the feet diagnosed during the appeal period. When a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but he may bring a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on the claimant, not VA, to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The Veteran's November 1963 report of medical examination at enlistment with the United States Navy Reserve notes bilateral pes planus, grade 3. He was found qualified to perform active duty at sea or foreign service. Because pes planus was "noted on the entrance examination," the presumption of soundness does not apply and the question for consideration, therefore, is whether the preexisting pes planus was aggravated during service. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). A temporary flare-up or recurrence of symptoms during service, of a preservice condition, does not establish an increase in disability as required for a finding of service aggravation. Rather, aggravation requires an increase in the level of the underlying condition. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Veteran has submitted lay statements asserting that his foot pain was incurred in service related to being issued the wrong size shoes and that the pain has continued ever since. The Veteran's private treatment records contain current diagnoses of bilateral pes planus and plantar fasciitis. Accordingly, the issue is whether the Veteran's pre-existing bilateral pes planus was clearly and unmistakably not aggravated beyond its natural progression by active service or whether the Veteran has another bilateral foot disability that is etiologically related to his period of active service. There is currently no medical opinion addressing the nature and etiology of the Veteran's claimed bilateral foot disabilities. After obtaining any available Social Security Disability records, a VA medical opinion should be obtained. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as any responses in the claims file. 2. After obtaining any available records from the Social Security Administration, obtain an opinion from a VA examiner regarding the nature and etiology of his claimed back disability. The complete claims file, to include a copy of this remand, should be available to and reviewed by the examiner. If an additional examination is deemed warranted, one should be arranged. All indicated tests should be performed. Thereafter, the examiner should respond to the following: Identify all back disabilities diagnosed during the appeal period (from June 2013), to include lumbar spine chronic strain with degenerative changes. With respect to each back disability diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was caused by or is otherwise etiologically related to the Veteran's period of active military service. The Veteran's lay contentions must be considered and weighed in making the determination. The examiner must provide a complete rationale for any opinion offered. 3. After obtaining any available records from the Social Security Administration, obtain an opinion from a VA examiner regarding the nature and etiology of the Veteran's claimed breathing condition. The complete claims file, to include a copy of this remand, should be available to and reviewed by the examiner. If an additional examination is deemed warranted, one should be arranged. All indicated tests should be performed. Thereafter, the examiner should respond to the following: Identify all respiratory/breathing disabilities diagnosed during the appeal period (from June 2013), to include respiratory failure, chronic obstructive pulmonary disease, and nodules on the lungs. With respect to each respiratory/breathing disability diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was caused by or is otherwise etiologically related to the Veteran's period of active military service, to include his presumed exposure to herbicide agents therein. The Veteran's lay contentions must be considered and weighed in making the determination. The examiner must provide a complete rationale for any opinion offered. The examiner is advised that a negative opinion based solely on the fact that the disorder is not on the list of diseases and conditions presumptively associated with exposure to herbicide agents is inadequate. 4. After obtaining any available records from the Social Security Administration, obtain an opinion from a VA examiner regarding the nature and etiology of his diagnosed hypertension. The complete claims file, to include a copy of this remand, should be available to and reviewed by the examiner. If an additional examination is deemed warranted, one should be arranged. All indicated tests should be performed. Thereafter, the examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension was caused by or is otherwise etiologically related to his period of active military service, to include his presumed exposure to herbicide agents therein. The Veteran's lay contentions must be considered and weighed in making the determination. The examiner must provide a complete rationale for any opinion offered. The examiner is advised that a negative opinion based solely on the fact that hypertension is not on the list of diseases and conditions presumptively associated with exposure to herbicide agents is inadequate. 5. After obtaining any available records from the Social Security Administration, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed bilateral foot disabilities. The complete claims file, to include a copy of this remand, should be available to and reviewed by the examiner. Thereafter, the examiner should respond to the following: Identify all bilateral foot disabilities diagnosed during the appeal period (from June 2013), to include pes planus and plantar fasciitis. Was the increase in severity of bilateral pes planus reported by the Veteran clearly and unmistakably (undebatably) due to the natural progress of the disease? Opine if any additionally diagnosed bilateral foot disorder was at least as likely as not (50 percent or greater probability) incurred in or caused by an in-service injury, event, or illness, to include the Veteran's reports of ill-fitting shoes. The Veteran's lay contentions must be considered and weighed in making the determination. The examiner must provide a complete rationale for any opinion offered. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.