Citation Nr: 22018646 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-32 765 DATE: March 30, 2022 ISSUES Entitlement to service connection for bilateral pes cavus with metatarsalgia, claimed as bilateral foot problems. Entitlement to service connection for lumbosacral strain, claimed as back condition. REMANDED Entitlement to service connection for bilateral pes cavus with metatarsalgia, claimed as bilateral foot problems is remanded. Entitlement to service connection for lumbosacral strain, claimed as back condition is remanded. REASONS FOR REMAND The Veteran had active service from June 2007 to September 2007 and from May 2011 to August 2011, and additional periods of service as a reservist in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021 the Veteran testified before the undersigned Veterans Law Judge in a video conference Board hearing. A transcript of the testimony offered at the hearing has been associated with the record. At such time, the undersigned held the record open for 90 days for the receipt of additional evidence. Subsequently, in November 2021, the Veteran's representative submitted additional evidence. 38 U.S.C. § 7105(e)(1). The Board notes that since the statement of the case (SOC) in May 2018, this additional evidence has been submitted by the Veteran. As his substantive appeal was filed after February 2, 2013, a waiver of Regional Office review is not required. Consequently, a remand for review of this additional evidence is not necessary. Notwithstanding, as will be discussed in further detail below, the claims for service connection must be remanded for further evidentiary development. 1. Entitlement to service connection for bilateral pes cavus with metatarsalgia, claimed as bilateral foot problems is remanded. The Veteran claims that although his bilateral pes cavus disability pre-existed service it was aggravated beyond its natural progression during service due to the rigors associated with his service, including road marches and runs. He also testified during the November 2021 Board hearing that he was issued inadequate equipment which improperly distributed weight on his body during service causing aggravation of his pre-existing foot disability. Where a pre-existing disease or injury is noted on an entrance examination, that 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 progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). 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 itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Here, the Veteran's service medical records indicate that his bilateral pes cavus existed prior to service. On his June 2007 enlistment examination there is a notation for pes cavus. The Veteran's service treatment records also reflect that he complained of bilateral foot pain multiple times during service, including in June 2011 and July 2011. Specifically, the Board notes that a July 27, 2011 STR note reflects that the Veteran reported that he had been experiencing pain in his feet for 6 weeks prior. At that time the examiner noted that the feet showed abnormalities with tenderness localized to the bilateral plana fascia, medial ball and dorsal aspect of both feet. The Veteran was afforded a VA examination in January 2018 at which time the examiner provided a negative nexus opinion, opining that the Veteran's bilateral foot disability was most likely congenital and was not aggravated beyond its natural progression by his active-duty service. During the November 2021 Board hearing the Veteran testified that he did not have issues with his feet prior to service. He testified that during service his feet began to hurt a lot and that this pain his continued to progress since his discharge. In this case, the Veteran's pes cavus was noted upon entry, and the Veteran's service treatment records together with the Veteran's lay statements include at least some evidence demonstrating that the pre-existing disability increased in severity during service. Therefore, the presumption of aggravation attaches. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (stating that the question of whether a pre-existing defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches"). Thus, the Board concedes a worsening while in service, and the relevant question that remains is whether there is clear and unmistakable evidence that the Veteran's pre-existing pes cavus was not permanently worsened beyond the natural progress of the disability. The Board notes that the January 2018 examiner opined that " it is not as least as likely as not pes cavus, plantar fasciitis or metatarsalgia was due and/or significantly and permanently aggravated beyond natural progression by active service in 2011." However, the standard in this case is not one of "at least as likely as not," but one of whether there is clear and unmistakable evidence that the Veteran's pre-existing pes cavus was not permanently worsened beyond the natural progress of the disability. Therefore, this matter is remanded for an addendum opinion. 2. Entitlement to service connection for lumbosacral strain, claimed as back condition is remanded. The Veteran is claiming service connection for his lumbar back disability and claims that this disability had its onset in and has continued since service. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran's June 2007 enlistment examination is silent for any complaints of back problems. The Veteran's service treatment records contain multiple complaints of back pain during his active-duty service. A July 21, 2011 treatment note reflects that the Veteran complained of upper back pain which radiated to his shoulder area. A July 27, 2011 treatment note reflects that the Veteran sought treatment for lower back pain which he reported that had been present for 9 weeks. A July 28, 2011 treatment note reflects the Veteran was treated for back pain, which he reported that he had experienced for years. The Veteran was afforded a VA examination in January 2018. At that time the examiner opined the Veteran's back disability pre-existed his period of active- duty service and there was no evidence of significant and permanent aggravation beyond its natural progression due to his active service in 2011. During the November 2021 Board hearing the Veteran testified that he did not have issues with his back prior to entering the military. He testified that he specifically recalled injuring his back in July 2011 during a training exercise where he hit his back on the turret of the vehicle that he was riding in. He testified that his back never stopped hurting since this incident. The Board finds that based on the November 2021 Bord hearing testimony an additional opinion should be requested. The Board notes at the time that the January 2018 VA examiner provided a negative nexus opinion, he did not have for consideration the Veteran's November 2021 testimony as to the July 2011 back injury during training. Furthermore, the Board notes that while the presumption of soundness attaches because there is no preexisting back condition noted upon the Veteran's entry into service, there is evidence in the claims file suggesting that a rebuttal of the presumption of soundness may be warranted. As such, a remand is necessary to provide a new VA examination and obtain an addendum medical opinion for the Veteran's claimed back disability. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. 2. Schedule the Veteran for the appropriate VA examination(s) to determine the nature and etiology of the Veteran's bilateral feet and back disabilities. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records as well as a copy of this REMAND, should be reviewed by the examiner, and the examiner should note that such review was undertaken. After reviewing the claims file and examining the Veteran, the examiner should opine to the following for the bilateral pes cavus: Is there clear and unmistakable evidence that the conceded worsening of the Veteran's pre-existing bilateral pes cavus disability was due to the natural progress of the disease. The examiner is asked to address and discuss the June 2011 and July 2011 treatment notes showing complaints of bilateral foot pain during service, as well as the Veteran's credible November 2021 Board hearing testimony that he did not have problems with his feet prior to service but has experienced continuous pain since discharge. Clear and unmistakable evidence means evidence that is undebatable or that cannot be mistaken or misunderstood. 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 progress of the disease. As it relates to the lumbosacral sprain disability, the examiner should opine on the following: a) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran's back disability, diagnosed during the appeal period, pre-existed service? b) If so, is there clear and unmistakable evidence that the pre-existing back disability was NOT aggravated by service beyond the natural progress of the disease? c) If there is not clear and unmistakable evidence both that the Veteran's back disability preexisted service and was NOT aggravated by service, then the Veteran must be considered to have been sound at entry without a diagnosis of a back disability. Based upon that premise, is it at least as likely as not that the Veteran's back disability had its onset during active service or is related to any in-service injury, event, or disease, including the July 2011 training incident where the Veteran reported that he hit his back on the turret of the vehicle that he was riding in. In offering these opinions, the examiner is asked to address and discuss the July 2011 service treatment notes showing treatment for back pain during active duty, as well as the Veteran's credible November 2011 Board hearing testimony that he has continued to have back pain since discharge. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 3. After completing the requested actions, readjudicate the claims in light of all pertinent evidence including the evidence added to the claims file since the SOC in May 2018. If the benefit sought remains denied, furnish to the Veteran and his representative with a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.