Citation Nr: 24032004 Decision Date: 10/18/24 Archive Date: 10/18/24 DOCKET NO. 20-20 591 DATE: October 18, 2024 ORDER Service connection for a left foot disability, classified as bilateral pes planus and plantar fasciitis, is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to a compensable initial rating for right ear hearing loss is remanded. Entitlement to an initial rating greater than 10 percent for left knee patellofemoral pain syndrome with shin splints is remanded. Entitlement to an initial rating greater than 10 percent for right knee patellofemoral pain syndrome with shin splints is remanded. FINDING OF FACT The Veteran's current left foot disability is etiologically related to his service, including an in-service onset of bilateral pes planus. CONCLUSION OF LAW The criteria for service connection for a left foot disability, classified as bilateral pes planus and plantar fasciitis, have been met. 38?U.S.C. §§?1110, 1116, 5107; 38?C.F.R. §§?3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 2008 to April 2009, with additional reserve service. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was previously represented by private counsel. In May 2018, counsel withdrew as the Veteran's representative. This withdrawal was accepted by VA in November 2019, and the Veteran did not subsequently identify a new representative. Thus, he proceeds in this appeal pro se. In February 2021, the Veteran submitted a request for Higher-Level Review of the left foot denial. That same month, he was informed by VA that the matter had been withdrawn under the current legacy appeal stream; however, he was informed in May 2021 that the prior letter had been sent in error and the request for Higher-Level Review could not be accepted, as the matter remained under the legacy system at that time. Thus, the appeal will be addressed herein. Upon the evidence of record, the left foot appeal has been expanded to include all relevant foot disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection As set forth above, the Veteran is pursuing service connection for a left foot disability. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran was diagnosed with bilateral flatfoot and bilateral plantar fasciitis during a March 2017 VA examination. Contemporaneous VA treatment records contain intermittent reports of related symptoms, including chronic left foot pain. On this basis, a current disability is found, and the first element of service connection is met. As to the second element, the Veteran's service treatment records (STRs) show possible bilateral pes planus in August 2008 and November 2008, with a confirmed diagnosis in March 2009. On this basis, an in-service incurrence is found, and the second element of service connection is met. Turning to the final element, the March 2017 VA examiner opined that it was as likely as not that the Veteran's current left foot disability was incurred in service. By way of rationale, the examiner noted that the Veteran developed pes planus during service. This condition is a risk factor for developing plantar fasciitis: "This provides a nexus between [the Veteran's] diagnosis of pes planus, plantar fasciitis, and his service." The above opinion is probative evidence in favor of the claim. Compellingly, the examiner offered a definitive opinion with a supporting rationale that directly contemplates the Veteran's current disabilities; those noted in his STRs; and the known link between the two. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). There is no evidence that the examiner misstated a relevant fact in providing their opinion; rather, the examination report reflects that the examiner conducted an in-person evaluation of the Veteran; reviewed the claims file and documented the Veteran's relevant testimony; and supported their opinion with broad medical knowledge. Notably, there are no competent opinions which tend to contradict the examiner's conclusions in this instance. Thus, the probative evidence weighs in favor of a nexus between the Veteran's current left foot disability and his military service, such that the third and final element of service connection is met. In sum, the persuasive evidence of record is in favor of the Veteran's claim; the evidence is in approximate balance; and the benefit of the doubt rule is applicable. The appeal seeking service connection for a left foot disability, classified as bilateral pes planus and plantar fasciitis, is granted. Briefly, the Board acknowledges that the Veteran initially filed for service connection for both chronic left foot pain and residuals of multiple distal phalanx fractures. See November 2016 claim. The prevailing June 2017 rating decision denied service connection for left distal phalanx fracture, finding that the condition preexisted and was not aggravated by service. The Board's independent review of the claims file does not correspond with these findings. Rather, the Veteran's March 2008 entrance examination is silent for a preexisting left foot condition; the earliest mention of pes planus is found in an August 2008 STR, during the Veteran's active duty. Thus, the Board's decision to expand the claim and analyze it on a direct basis is proper and yields a positive outcome in this case. See also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals. Specifically, the Veteran most recently underwent VA audiological and knee examinations in March 2017. Given the passage of time and likely worsening of these disabilities, the Board instructs that new examinations be obtained. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see, e.g., August 2020 private back examination (discussing the impact of the Veteran's service-connected back disability on his knees). The matters are REMANDED for the following action: Schedule the Veteran for examinations to assess the current severity of his service-connected right ear and bilateral knee disabilities. The claims folder must be provided to the examiners in conjunction with the examinations. All necessary tests and studies should be conducted. The examiners should offer an assessment of all pertinent symptomatology and findings, to be reported in detail in accordance with Diagnostic Codes 6100 (hearing loss) and 5260 (knees). [CONTINUED ON NEXT PAGE] The knee examiner is advised to contemplate the Veteran's disabilities under the old and amended musculoskeletal regulations, and the provisions of Mitchell, Sharp, and DeLuca. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.