Citation Nr: 22019746 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 17-60 975 DATE: April 2, 2022 ORDER Service connection for a bilateral foot condition (to include pes planus, dropfoot deformity, and acquired posterior tibial tendon dysfunction) is granted. REMANDED Service connection for a right leg condition is remanded. Service connection for a left leg condition is remanded. Service connection for a bilateral hip condition is remanded. Service connection for a bilateral toe condition is remanded. Service connection for a bilateral ankle condition is remanded. Service connection for a back condition is remanded. FINDING OF FACT Affording the Veteran the benefit of doubt, the evidence of record is approximately balanced for and against ("nearly equal") finding that her currently diagnosed bilateral foot condition was aggravated (worsened beyond its natural progression) by her military service. CONCLUSION OF LAW The criteria are met for service connection for a bilateral foot condition. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1985 to April 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In August 2021, the Veteran testified at a Board hearing before the undersigned; a transcript of which has been associated with the record. The Board notes the claim for service connection for a left foot condition was not originally included in the statement of case (SOC) nor certified to the Board, however, the Board finds this claim was clearly listed in the Veteran's February 2016 notice of disagreement (NOD). The Board also finds adjudication of this issue is appropriate because it is closely related to the Veteran's right foot condition claim and grant of service connection herein, results in no prejudice to the Veteran. 1. Service connection for a bilateral foot condition is granted. Legal Criteria Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be awarded when a pre-service medical condition is aggravated by military service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). A preexisting medical condition will be presumed to have been aggravated by service, where there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If there is an increase in severity, then "clear and unmistakable evidence" is required to rebut the presumption of aggravation. However, if (based on all the relevant evidence) the medical condition did not increase in severity during service, then aggravation is not established. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). When no pre-existing condition was "noted" upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence both that (a) the condition pre-existed service and (b) the pre-existing condition was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1132 (presumption of sound condition upon entrance to service). "[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." Wagner, 370 F.3d at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In this context, for a pre-existing condition to have been "noted" means that it must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see 38 U.S.C. § 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of the condition. Id. at 240. However, the disease need not be symptomatic at the time of the entrance examination, 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 the orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet."). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Factual Background The Veteran asserts that her bilateral foot condition was aggravated by her military service. The Veteran's November 1984 enlistment examination notes asymptomatic bilateral flat feet. The Veteran attended a June 2015 VA examination in which the examiner diagnosed bilateral pes planus. The Veteran reported she received profile and chit for the feet condition in May 1985, wore sneakers during basic training and the pain in her feet caused her to change the way she walks which also causes pain in her hips and back. She reported that her toes point downward and caused them to scrape the ground. She also reported that it was her belief that her back and hip and thigh conditions are secondary to her foot conditions. The June 2015 VA examiner stated they were unable to render an opinion because of the lack of service treatment records available to review. In an August 2021 Board hearing, the Veteran testified that she injured her feet during bootcamp and was treated for "blisters and stuff" all over her feet and the tops of her toes were scraped off. She testified that the skin was all scraped off and that she was not required to wear shoes for the rest of boot camp. She testified she was not given a diagnosis at that time. The Veteran further testified that she was in continuous pain since service and delayed seeking treatment because she did not have medical insurance coverage or leave from her then job. She testified that her feet burned all the time and they hurt, were always read and her toes were on top of each other. The Veteran stated she had surgery on her feet in 1994 and in 1996 or 1997. The Veteran also testified that it was her belief that her bilateral leg conditions are related to her feet. The Veteran stated that she does not go up and down stairs. In a December 2021 private medical opinion, the Veteran's treating physician opined that the Veteran's multiple foot and ankle deformities "likely worsened" from her time in the military. The physician diagnosed the Veteran with dropfoot deformity and acquired posterior tibial tendon dysfunction (adult acquired flatfoot deformity) The physician reasoned the Veteran denied congenital pes planovalgus deformity, medical literature well documents that the Veteran's condition responds well to conservative treatment, though progressive, the condition can progress to end stage arthritis of the hindfoot and ankle joints when left untreated, the Veteran's document pes planovalgus deformities but the condition went untreated during service, and the use of orthoses or ankle bracing would have been an adequate treatment considering the Veteran's deformity is flexible to brace and alleviate the symptoms and progression. The physician stated the Veteran's foot and ankle conditions are service related and were aggravated throughout service. The physician stated the Veteran's posterior tibial tendon dysfunction was most likely caused by or the result of the Veteran's military service. Analysis The Veteran has a current diagnosis for a bilateral foot condition and therefore meets the first element of service connection. As for the presumption of soundness, the Veteran's November 1984 enlistment examination includes a notation of pes planus with no symptoms, adequately rebutting the presumption and establishing that she had a pre-existing medical condition. However, there was an increase in the severity of the condition during service as evidenced by the Veteran's competent and credible statements and the notation on the entrance examination that the Veteran's condition was symptom free upon enlistment and then progressed soon after starting bootcamp and throughout service. In other words, the more probative evidence of record does NOT show by clear and unmistakable evidence that there has been NO increase in the severity of the preexisting condition OR that any increase was the result of natural progression. The Veteran was treated in service for the condition received treatment and special allowances regarding shoes she wore during service. Therefore, there is not clear and unmistakable evidence that there was no increase in severity or that the increase in severity was due to the natural progression of the disease. Therefore, the presumption of aggravation has not been rebutted. The Board also finds the December 2021 private medical opinion is highly probative evidence that the Veteran's condition was worsened beyond its natural progression by her military service. The examiner's opinion provides an adequate rationale for the opinion rendered, specifically with regard to the fact that the condition worsened, in part, because the Veteran did not receive appropriate treatment in service. In addition, the Board finds that the Veteran's statements regarding the continuous nature of her objectively observable symptoms associated with her bilateral foot condition are competent, credible, and highly probative evidence of a causal link between service and her current diagnosis. No probative weight can be afforded the June 2015 VA examination because the examiner did not render a causal link (nexus) opinion. Accordingly, based on the above, service connection for a bilateral foot condition is warranted. REASONS FOR REMAND 1. Service connection for a right leg condition is remanded. In light of the grant of service connection for bilateral foot conditions above, the Board finds a remand is necessary because there is sufficient evidence within the claims file that the Veteran's right leg condition may be caused or aggravated by her now service-connected bilateral foot condition and the Veteran has not been afforded a VA examination. Additionally, the Veteran testified that not all of her service medical records are within the claims file; therefore, additional efforts should be taken to obtain these records. Accordingly, remand is required. 2. Service connection for a left leg condition is remanded. 3. Service connection for a bilateral hip condition is remanded. 4. Service connection for a bilateral toe condition is remanded. 5. Service connection for a bilateral ankle condition is remanded. 6. Service connection for a back condition is remanded. The above issues are being remanded for the same reasons and will therefore be addressed together. The issues above were denied in a January 2016 rating decision and appealed in a February 2016 notice of disagreement. While an SOC was issued for two of the issues appealed, the remaining issues were listed on a separate paper (noting the Veteran circled the issues and referenced the attachment in her formal NOD) which may explain why they were not originally included. An SOC has not yet been issued for any of these issues. Thus, remand pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), is necessary. The matters are REMANDED for the following action: 1. [TO THE AOJ: The Board notes that the claim for service connection for a right leg condition is remanded for a VA examination and that it may be both useful and helpful to the AOJ and Veteran to defer issuance of the SOC until after this further development is completed.] 2. To the extent they are available, obtain the Veteran's service treatment records for association with the claims file. If records are unable to be located or have been destroyed or are not available, this must be documented and associated with the claims file. Additionally, the Veteran must be informed of this and given the opportunity to provide copies of any records in his possession. 3. The AOJ should obtain copies of updated VA treatment records (excluding duplicates). 4. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any right or left leg disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all leg disabilities present during the appeal period (from December 2014). (b.) For each leg disability diagnosed, was that the disability was either 1) caused or 2) aggravated by the Veteran's service-connected bilateral foot disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (c.) For each leg disability diagnosed, was that the disability was either incurred in or otherwise related to the Veteran's active-duty service? Please explain why. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 5. The AOJ should send the Veteran and his representative an SOC that addresses service connection for left leg, left and right hip, back, left and right ankle, and any toe condition. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration as appropriate. [CONTINUED ON NEXT PAGE] 6. [The Board notes that if the AOJ determines that further development is required, that development should be conducted before the issuance of the SOC.] VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.