Citation Nr: A25107343 Decision Date: 12/11/25 Archive Date: 12/11/25 DOCKET NO. 230123-315761 DATE: December 11, 2025 REMANDED Entitlement to service connection for right heel benign neoplasm is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to March 1970. This claim comes before the Board of Veterans' Appeals (Board) from a May 2022 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) under the modernized appeals system known as the Appeals Modernization Act (AMA). In May 2022, the Veteran submitted a VA Form 0996 Request for Higher Level Review (HLR). The HLR decision was rendered in a January 2023 rating decision. The January 2023 rating decision did not find a duty to assist error. In January 2023, the Veteran submitted a VA Form 10182, Notice of Disagreement, and requested the hearing docket at the Board, specifically requesting a video hearing before a Veterans Law Judge (VLJ). The Veteran testified at a hearing before the undersigned VLJ in June 2024. A transcript of the hearing has been associated with the claims file. Under the rules of the AMA, the Board may only consider the evidence of record at the time of the May 2022 rating decision on appeal, as well as any evidence submitted by the Veteran within 90 days following the hearing. 38 C.F.R. § 20.302(a)(3). In October 2024, the Board denied the appeal. The Veteran appealed the denial to the Court of Appeals of Veterans Claims (Court). In July 2025, VA and the Veteran filed a joint motion for remand (JMR), which was granted by the Court, requesting further development and readjudication of the issue. The matter now returns to the Board for further consideration. Entitlement to service connection for right heel benign neoplasm is remanded. The Veteran contends that his current right heel disability began during boot camp. Specifically, at the June 2024 Board hearing, the Veteran testified that prior to service, if he kicked his heel, it would hurt, but otherwise it was not painful. He maintained that the current condition actually began while he was in boot camp in 1969; that he kept going to sick call throughout boot camp; that marching made the pain unbearable, and; he was ultimately put on medical hold. The Veteran also testified to being offered surgery while in boot camp, but that there was the possibility of a permanent limp, which is why he refused the surgery. The Veteran's representative also asserted the Veteran was kicked in the ankle by a drill instructor during boot camp. The Veteran was ultimately medically discharged because of the heel disability. Presumption of Soundness A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111, 38 C.F.R. § 3.304(b). The term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry and the burden then falls on the government to rebut the presumption of soundness. The standard for rebutting the presumption of soundness under 38 U.S.C. § 1111 requires that VA shows by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression 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 on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting 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, 306-7 (1993). Evidence In this case, the Veteran's report of medical history on April 18, 1968, notes that he saw a foot specialist, but with no additional information and specifics as to the circumstances. However, his military medical enlistment examination on April 18, 1968, does not note the Veteran's right heel benign neoplasm. Accordingly, the Board finds the Veteran's right heel benign neoplasm was not noted at entry and the presumption of soundness attaches. The question, therefore, is whether there is clear and unmistakable evidence that the veteran's disability was both pre-existing and not aggravated by service. See Wagner v. Principi, supra. The Veteran's service treatment records (STRs) document that he was discharged by a Medical Board in January 1970. As part of the history of the Veteran's circumstances, the Medical Board Report noted a mass on the medial aspect of his right heel since he was a child, admittedly for 10 to 12 years; the mass never gave rise to any complaints until he was enlisted and began wearing boots; that on April 10, 1969, the Veteran first complained of discomfort over this mass with apparently marked tenderness on palpation; that he was initially treated with sneakers for 2 days and then returned to his dispensary for boot padding; at that time, x-rays revealed some form of "bone tumor"; he was seen again on May 30, 1969 for persistent complaint of mass about the right heel causing discomfort and that it became increasingly uncomfortable as they day wore on, and; that he was referred to the Orthopedic Clinic, Naval Hospital, Camp Pendleton, California on October 1, 1969 for evaluation of his complaints. See VBMS, document labeled STR- Medical, receipt date 3/26/2015, pages 39-41 of 61. During the Veteran's military service, his STRs document right ankle pain; a normal x-ray of the right ankle, and; an orthopedic note that the Veteran refused operation. See VBMS, document labeled STR- Medical, receipt date 3/26/2015, pages 3, 26, 45 of 61. There is a single documentation of the Veteran's complaint of a painful tumor, right heel on April 10, 1969. See VBMS, document labeled STR- Medical, receipt date 3/26/2015, page 51 of 61. There is also a January 14, 1970, statement from the Veteran, explaining that he was kicked in the ankle before leaving boot camp by a drill instructor, because he could not sit his heels down like everyone else. See VBMS, document labeled STR- Medical, receipt date 9/19/2023, page 22 of 37. There is a letter from a podiatrist, H.D.D., D.S.C., on April 2, 1968, where he explained the Veteran was a patient of his on March 26, 1968 (prior to service entry); the chief complaint was a knot under the right ankle; the Veteran states he first noticed this at the age of 10, and; it is sensitive to pressure and becoming more sensitive through the years. H.D.D. also explained x-rays were taken, which revealed no bony pathology; his opinion is this is a fibrous or neurofiberous tumor, and; have recommended excision of the tumor at the patient's earliest convenience. Based on these facts, the Board finds that there is clear and unmistakable evidence that the Veteran's right heel benign neoplasm disability preexisted service. The question now becomes whether the preexisting disability was not aggravated during service beyond its natural progression. This is the subject of the July 2025 JMR. In January and February 2022, VA obtained opinions on this matter. Neither used the correct legal standard. They used the "as likely as not" standard rather than the "clear and unmistakable" standard. Therefore, additional opinion is required. The matter is REMANDED for the following action: Obtain an addendum medical opinion as to the nature and etiology of the Veteran's right heel benign neoplasm. If an examination of the Veteran is deemed necessary to provide the requested opinion, one must be scheduled. The examiner is requested to review the Veteran's claims file, including a copy of this remand. The examiner is requested to opine to the following: (a.) Whether the Veteran's preexisting right heel benign neoplasm was clearly and unmistakably not aggravated by military service? An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Smith, 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.