Citation Nr: 24005481 Decision Date: 02/02/24 Archive Date: 02/02/24 DOCKET NO. 09-08 209 DATE: February 2, 2024 ORDER Entitlement to service connection for bilateral pes planus is granted. FINDING OF FACT It is at least as likely as not that the Veteran's bilateral pes planus is aggravated beyond its natural progression by wheelchair use necessitated by his service-connected left tibial fracture residuals and associated left lower extremity disabilities. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus-as secondary to service-connected left tibial fracture residuals and associated medical compartment muscle weakness, left ankle pain and achilles strain, limited left knee motion, and shortening of the left lower extremity-are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1988 to April 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, January 2023, and November 2023, the Board remanded the claim for additional development, and it now returns for further appellate review. The Veteran's former counsel withdrew representation in November 2023 and he remains unrepresented at the time of this decision. The Veteran maintains that he has bilateral pes planus attributable to his active duty service, including as due to or aggravated by his service-connected left lower extremity disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection on a secondary basis is awarded when a disability is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection is also granted for disabilities resulting from aggravation of a non-service-connected disability by a service-connected disability. 38 C.F.R. § 3.310(b). The record shows multiple diagnoses for bilateral pes planus from VA and private providers, prior to and during the period on appeal. See November 2019 VA examination, June 2019 private provider opinion. A current disability is established. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A close review of the Veteran's service treatment records (STRs) reflects no mention of foot pain or other foot complaints during service. However, his STRs show he suffered a severe left leg fracture and surgery to the left ankle in August 1989. The Veteran did not report foot pain or other symptoms at his April 1992 medical examination at separation from active duty. The Veteran has since been awarded service connection for left tibial fracture residuals and associated medical compartment muscle weakness, left ankle pain and achilles strain, limited left knee motion, and shortening of the left lower extremity. See November 2023 rating code sheet. The post-service medical record is largely absent foot complaints, despite his continued treatment for service-connected left lower extremity symptoms. Pes planus did not appear on record until September 2007, when his treating VA orthopedist ordered custom foot orthotics with "flatfoot" as a provisional diagnosis for the Veteran's previously reported bilateral foot pain. See April 2007, July 2007, September 2007 VA treatment records. A June 2009 VA aid and attendance examination noted that, by that time, he required the use of a walker for ambulation and required the use of a wheelchair for prolonged mobility. He was assessed as having muscle weakness and a high risk of falls with use of a walker. The examiner noted numbness at the bottom of his left foot, associated with his service-connected disabilities. The Veteran reported a subsequent bilateral pes planus diagnosis, treated with shoe orthotics and braces to alleviate pain. See also June 2010, April 2012 personal statements. He further asserted that his providers attributed his pes planus to service-connected left lower extremity disabilities. The Veteran is competent to report what he has experienced, including symptom onset, severity, and what providers have told him in the course of treatment. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran was again diagnosed with left foot pes planus at a July 2016 VA ankle examination, without further findings. This claim was appealed to the Board shortly thereafter and remanded in June 2019, in order to obtain a VA foot examination. The resulting November 2019 VA examination diagnosed bilateral pes planus with reduced arch height, objective evidence of marked pronation, inward bowing of the Achilles' tendon, pain accentuated on use, and calluses characteristic of the disability, all manifesting bilaterally. The Veteran reported using arch supports for treatment but remaining symptomatic despite use. He reported sharp, needle-like pain and numbness with weight bearing, sometimes causing his left ankle to roll outward. As a result, he reported using VA-issued braces, a walker, and a wheelchair to assist his mobility. The Board pauses here to find that the Veteran's lay statements regarding his symptoms and resulting functional limitations are credible, as his assertions are consistent throughout the evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (citations omitted). A concurrent VA medical opinion indicated the claimed condition not due to or aggravated by the Veteran's service-connected left lower extremity disabilities, while also stating it is "at least as likely as not aggravated" by those disabilities. An April 2020 addendum opinion unequivocally stated the claimed condition was not related to service, as there was no evidence of altered gait or ankle weakness, pes planus symptoms limited to the left lower extremity, or apparent use of his orthotic shoe inserts as, while "the veteran (sic) has severe symptoms associated with his pes planus," he had appeared to previous examinations wearing flip flops. In June 2020, the Veteran filed a November 2019 VA Foot Disability Benefits Questionnaire (DBQ) completed by private providers Dr. K.S and J.M., nurse practitioner (NP). The DBQ concluded that the Veteran had mild bilateral pes planus, manifesting with decreased arch height, and marked, if mild, pronation bilaterally. Dr. K.S. did not report characteristic calluses but noted that the Veteran reported bilateral arch pain and foot numbness with weight bearing. Dr. K.S. and J.M. followed this evaluation with an April 2020 written opinion in which he attested to reviewing the entire claims file in this matter. Dr. K.S. opined that the Veteran's foot pain is secondary to his service-connected left lower extremity disabilities. Dr. K.S. noted that the Veteran's foot symptoms began as radicular in nature and were, at that time, clearly related to the left leg fracture. Since then, as his service-connected disabilities have necessitated the use of a wheelchair, the Veteran has developed plantar fasciitis and pes planus. Dr. K.S. stated that patients in non-weight bearing practices are at higher risk for "foot and arch pain." As such, Dr. K.S. and J.M. concluded that the Veteran's pes planus is directly related to the use of his wheelchair and therefore secondarily attributable to service. In January 2023, the Board found the November 2019 and April 2020 VA opinions internally contradictory and contradictory to the medical record as a whole, remanding this claim for additional medical comment. See January 2023 Board remand; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board additionally found the November 2019 DBQ and April 2020 private opinion inconsistent with the RO's November 2019 examination, which found more, and more severe, manifestations of the claimed condition. Additionally, the April 2020 private opinion heavily cited foot pain, particularly plantar fasciitis, as due to non-weight bearing, but did not discuss how pes planus and pronation were the direct result of the Veteran's wheelchair use. As such, this matter was again remanded. The resultant April 2023 VA examination found no pes planus diagnosis. The examiner found the Veteran's bilateral foot arches clearly present with thick calluses reflecting walking, rather than pes planus or non-weight bearing practices. The concurrent medical opinion indicated that, absent a current disability and any in-service foot complaints, it was less likely than not that the claimed condition was related to service. The RO obtained a September 2023 addendum opinion indicating that the Veteran arrived at the examination in a wheelchair, but when presented with the finding that he has arches and calluses apparently from walking, he proceeded to explain that he often walks barefoot, particularly in the summertime, and for long distances. He demonstrated normal ambulation and gait at that time, before returning to his wheelchair and leaving the interview. Notably, the Veteran filed a November 2023 personal statement unequivocally denying that he made any such reports to the VA examiner or that he engages in the reported walks. In November 2023, the Board found this opinion inadequate for rating purposes, as it relied almost exclusively on one examiner's findings that the Veteran could walk in finding the Veteran without any current diagnosis. Nieves-Rodriguez, 22 Vet. App. at 304. The matter was again remanded to obtain adequate medical opinions as to whether the claimed condition is attributable to active duty service, including the August 1989 car accident, or attributable to or aggravated by the Veteran's service-connected left lower extremity disabilities. See November 2023 Board remand. The RO accordingly obtained December 2023 VA medical opinions finding no direct link between service and his claimed condition, as the Veteran had not asserted, and the record did not reflect, in service symptom onset or any direct relationship with the car accident that caused his left lower extremity disabilities. The examiner likewise found no relationship between those service-connected disabilities and his claimed condition. However, the examiner's rationale for that finding did not directly address any of the service-connected disabilities, their symptoms, or their effect on the Veteran. Rather, the examiner stated that pes planus essentially means fallen foot arches, which are directly related to excessive weight bearing on the feet. The examiner found "no evidence of worsening condition" to indicate symptom aggravation. As such, the examiner concluded that wheelchair use would not cause or aggravate the Veteran's claimed condition and thus, his claimed condition was not attributable to his service-connected disabilities. Regrettably, this examination is also not adequate for rating purposes as it did not discuss any of the specific effects or symptoms related to the Veteran's service-connected disabilities, or any of the evidence of record favorable to the Veteran's claim. For instance, the examiner did not cite or address Dr. K.S.'s assertions that foot pain develops notably in non-weight bearing patients. The examiner also found no evidence of a worsening condition, which is contrary to the objective medical evidence of record, the Veteran's lay statements, and prior RO findings. Although VA medical examiners are not required to comment on every piece of favorable evidence, they must consider relevant evidence. Miller v. Wilkie, 32 Vet. App. 249, 258 (2020). As such and insomuch as it relates to secondary service connection, this medical examination is also inadequate. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that conclusory, contradictory, or incomplete analysis is inadequate). The Board has accordingly been presented conflicting medical opinions regarding attribution of the claimed condition to the Veteran's service connected disabilities. However, none of these opinions are supported by an adequate rationale. In particular, none of the VA opinions account for the favorable evidence in this matter as none of them address both Dr. K.S.'s favorable private opinion and the November 2019 VA examination's medical evidence of record establishing a current disability. As the VA medical opinion rationales are inadequate, the opinions cannot be afforded any probative weight. Moreover, in light of the multiple prior remands to correct this same deficiency, the Board determines that further remand would be futile, and will decide the claim on the current record, applying the doctrine of reasonable doubt. 38 C.F.R. § 3.102. The Board is cognizant that Dr. K.S.'s favorable April 2020 medical opinion addresses the claimed condition in terms of foot pain, rather than fallen arches or pronation, and that it does so with repeated references to plantar fasciitis, a separate condition that is not on appeal. An etiological opinion must be viewed in its entire context, however, and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). The Board is also cognizant that, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Here, Dr. K.S. and provider J.M. concluded, after a complete review of the record and with references to the evidence therein, that the Veteran's claimed condition has been aggravated by the non-weight bearing practices necessitated by his service-connected left lower extremity disabilities. Although the providers did not unambiguously specify a causal relationship between the claimed condition and the Veteran's service connected disabilities, this medical finding directly addresses the claim on appeal. In service connection claims, a Veteran is entitled to the benefit of the doubt when the evidence of record is in an approximate balance, rather than in "exact" equipoise, so that a claimant's application may be denied only when the evidence "persuasively favors" a finding against the claim. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In light of this guidance, the Board finds that the Veteran has duly established a current disability and a showing that his service-connected left lower extremity disabilities have aggravated his condition. Entitlement to service connection for bilateral pes planus-as secondary to the Veteran's service-connected left tibial fracture residuals and associated medical compartment muscle weakness, left ankle pain and achilles strain, limited left knee motion, and shortening of the left lower extremity-is accordingly hereby GRANTED. Lynch, supra. J.P. Norman Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.