Citation Nr: 22017183 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-59 530 DATE: March 24, 2022 ORDER Entitlement to service connection for bilateral pes planus is granted. REMANDED Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for disability of the left hip, including trochanteric bursitis, is remanded. FINDING OF FACT Pre-existing pes planus increased in service, and it is not shown by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1981 to November 1985. He served honorably in the United States Army. Unfortunately, the Veteran died in April 2018. At the time of his death, a Board hearing on the above service connection claims was pending. The Board thanks the Appellant for the Veteran's service to our country. The Appellant's request for substitution was granted by the regional office in July 2019, and she is the Appellant in these matters. A virtual hearing was thereafter scheduled at her request, and notice of the January 11, 2022, hearing was dated October 15, 2021, 88 days prior to the scheduled hearing date. Although properly notified of the time and place of the hearing, she failed to report for the hearing and did not present good cause for her failure to attend. Therefore, the hearing request is deemed withdrawn. Although the Board issued a death dismissal in July 2019, now that substitution has been granted and the hearing request has been deemed withdrawn, the Board can proceed to the merits of the claims. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Entitlement to service connection for bilateral pes planus is granted Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury or disease in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Several statutory presumptions operate in connection with the laws providing for service connection, including the presumption of soundness. Under the presumption of soundness, a Veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111, 1137. The law provides that a pre-existing disease or injury will be considered to have been aggravated by military 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 progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and after service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Further, temporary or intermittent flare-ups of a pre-existing 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, 1346-46 (Fed. Cir. 2002) ("[E]vidence of temporary flare-ups symptomatic of an underlying preexisting condition, alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C. § 1153 unless the underlying condition is worsened"); Maxson v. West, 12 Vet. App. 453, 458 (1999) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)), aff'd 230 F.3d 1330 (Fed. Cir. 2000). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. Id. If the claimant meets his or her burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. 8 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. Id. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that "bunions" were noted at induction examination where orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet."). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. The Veteran contended that service connection was warranted for his bilateral pes planus. After a review of the evidence, the Board finds that service connection is warranted for bilateral pes planus. In the present case, the Veteran's August 1981 service entrance examination report noted the feet were abnormal with the notation "1o PP [pes planus]". The Veteran's report of medical history at that time responded "No" to the question "Have you ever had or have you now foot trouble?" Thus, the presumption of soundness at service entry does not attach, and the burden is on the Appellant to show that there was an increase in disability during service to establish the presumption of aggravation. The Board finds that the Appellant has met this burden. The STRs include a May 1982 triage note identifying a swollen left foot after a "long run" and the Veteran reported a history of foot swelling in basic training. The foot swelling was identified as due to pes planus of the bilateral feet. March 11, 1985, physical profile for foot pain. The Veteran reported to the August 2012 VA examiner that he was told he had "falling arches" while in service and that his "Achilles tendons were always swelling up." He stated that he was given pads and creams for the conditions that did not help and that VA prescribed insoles for his shoes in 2010 that also did not help. He reported continued swelling and pain. The Board finds the Veteran's statements to be credible, and they are consistent with contemporaneous STRs. The Board finds that there was an increase in disability in service as the Veteran denied any foot problems at service entrance and reported, beginning in basic training, swelling and pain in the feet, including after long runs. The Board affords little probative weight to the August 2012 VA examiner's opinion that the Veteran's current pes planus was unrelated to service due to the lack of chronicity of complaints or care. The Board recognizes that pes planus may be a disability capable of lay observation. Falzone v. Brown, 8 Vet. App. 398 (1995). Also, the opinion did not address the question at issue in this appeal, that is, whether clear and unmistakable evidence exists that the worsening in service is due to the natural progress of the disease. There is no competent medical or lay evidence to suggest that the increase in the Veteran's pre-existing pes planus during his period of active service was due to the natural progress of the disease. In fact, the evidence is to the contrary as the STRs suggest that the physical requirements of service, including running, worsened the pes planus. The burden to show no aggravation of a pre-existing disease or disability during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003). In this case, there is not clear and unmistakable evidence that the increase in severity was due to the natural progression of the disease. While VA may endeavor to further develop medical evidence in this claim, to do so in this case would only serve the purpose of obtaining negative evidence. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant). Accordingly, the presumption of aggravation has not been rebutted and service connection based upon aggravation of a pre-existing disability is granted. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. REASONS FOR REMAND Entitlement to service connection for left knee effusion is remanded; Entitlement to service connection for trochanteric bursitis of the left hip is remanded. Pursuant to VA examinations dated August 2012, the late Veteran was diagnosed with left knee effusion and trochanteric bursitis of the left hip. For each disability, the Veteran described an in-service injury or event that he believed caused his disability and the examiner noted in-service medical treatment pertaining to his conditions. However, in each case the examiner opined that the Veteran's current disabilities were less likely than not associated with his service because there was no evidence of chronicity of complaints or care. The Board finds that this reasoning is not legally adequate because the VA examiner relied on a lack of treatment without explaining why contemporaneous documentation was expected and why its absence was medically significant. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). This is particularly important here because in the Veteran's December 2016 substantive appeal he indicated that a lack of treatment after service was due to his military training that he should "suck it up" and not get the care he needed as long as possible. For his left hip trochanteric bursitis, during the August 2012 VA examination, the examiner indicated that the Veteran was involved in a pedestrian/automobile accident in November 2010 and had left hip pain as a result; however, the Board finds that no treatment records from that accident have been associated with the claims file. Accordingly, for the above reasons, new medical opinions and additional development for the Appellant's claims is warranted. The matters are REMANDED for the following action: 1. Please associate with the claims file all outstanding VA and non-VA medical records pertaining to the Veteran's left knee effusion and trochanteric bursitis of the left hip disabilities. 2. Please contact the Appellant and request that she provide the necessary authorizations to enable VA to request and obtain treatment records related to a pedestrian/automobile accident involving the Veteran in November 2010. She can also submit these records herself. 3. After the action in paragraph 1 and 2 has been determined to be complete, please obtain a supplemental medical opinion to address the etiology of the Veteran's left knee effusion and trochanteric bursitis of the left hip. The claims file should be made available to and reviewed by the opinion provider. The opinion must address the following: a. As to left knee effusion, is it at least as likely as not (i.e., at least a 50 percent probability) that left knee effusion is related to the Veteran's active military service? The opinion provider is advised that lack of medical records cannot serve as the sole basis for a negative opinion. b. As to trochanteric bursitis of the left hip, is it at least as likely as not (i.e., at least a 50 percent probability) that trochanteric bursitis of the left hip is related to the Veteran's active military service? The opinion provider is advised that lack of medical records cannot serve as the sole basis for a negative opinion. In answering these questions, the opinion provider should only rely on silence in the medical records if it can be explained why the silence in the record can be taken as proof that the symptom did not occur or why the fact would have normally been recorded if present. Please articulate the reasons underpinning all conclusions, that is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion and (2) explain how that evidence justifies your opinion. The clinician should consider and discuss the relevant evidence as necessary. A complete explanation should be provided for all opinions given. If an opinion cannot be provided without resorting to speculation, such should be stated and an explanation as to why this is so given with a note as to what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fales, 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.