FLATFOOT BILATERAL ACQUIRED

LAURA E. COLLINS · 2023 · Case ID: 23065076

MIXED

Summary

The Veteran, who served in the U.S. Marines from November 1988 to November 1992, appeals the denial of service connection for sleep apnea and the initial claims for bilateral pes planus and right shoulder disability. The Board granted service connection for aggravation of bilateral pes planus, finding that the Veteran's pre-existing condition worsened during service, and the presumption of aggravation was not rebutted by clear and unmistakable evidence. The Veteran's testimony and lay evidence, including statements from his wife, mother, dad, and brother, detailed significant foot pain and functional impairment during service, despite a pre-service notation of pes planus. The Board also granted service connection for a right ankle disability as secondary to the pes planus, relying on the Veteran's testimony of pain and functional impairment, and a VA examiner's opinion that the ankle pain was directly related to the pes planus deformity. For the right shoulder disability, the Board granted aggravation, finding that the Veteran's pre-service acromioclavicular joint separation and surgery worsened during service, and the presumption of aggravation was not rebutted. The Board found the initial VA examiner's opinion to be unprobative due to an incomplete factual premise, as it did not consider the Veteran's testimony and lay evidence detailing his in-service complaints and functional limitations. The claim for sleep apnea was remanded for a VA examination to determine if it was present but undiagnosed in service or related to an in-service smoke inhalation incident.

Rationale

Pre-existing bilateral pes planus noted on enlistment examination.; Veteran experienced significant foot pain and functional impairment during service.; Presumption of aggravation attaches as worsening during service is established.; No clear and unmistakable evidence to rebut presumption of aggravation.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

20-15 153A

Full Decision Text

Citation Nr: 23065076
Decision Date: 12/07/23 Archive Date: 12/07/23

DOCKET NO. 20-15 153A
DATE: December 7, 2023

ORDER

Entitlement to service-connected aggravation of bilateral pes planus is granted.

Entitlement to service connection for a right ankle disability as secondary to service-connected bilateral pes planus is granted.

Entitlement to service-connected aggravation of a right shoulder disability is granted.

REMANDED

Entitlement to service connection for sleep apnea is remanded.

REFERRED

The issue of entitlement to service connection for a left ankle disability was raised in an October 2018 claim and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication.

FINDINGS OF FACT

1. The Veteran's bilateral pes planus was noted on entry to service and the presumption of soundness does not attach to this disability. The pre-existing bilateral pes planus worsened during service. There is not clear and unmistakable evidence that the worsening was due to the natural progression of the disease. The presumption of aggravation attaches and is not rebutted.

2. The evidence of record establishes that the Veteran's right ankle disability was caused or aggravated by bilateral pes planus.

3. The Veteran's right shoulder disability was noted on entry to service and the presumption of soundness does not attach to this disability. The pre-existing right shoulder disability worsened during service. There is not clear and unmistakable evidence that the worsening was due to the natural progression of the disease. The presumption of aggravation attaches and is not rebutted.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service-connected aggravation for bilateral pes planus are met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306.

2. The criteria for entitlement to service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.310.

3. The criteria for entitlement to service-connected aggravation for a right shoulder disability have been met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from November 1988 to November 1992.

This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated January 2019 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed.

The Veteran testified at a February 2022 video hearing with the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file.

The issue of entitlement to service connection for a left ankle disability was raised in the Veteran's October 2018 claim but has not been adjudicated by the AOJ. Accordingly, it is REFERRED to the AOJ for adjudication in the first instance.

Neither the Veteran nor representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Service Connection

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303.

Establishing service connection generally requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §
preexisting such service, was aggravated therein. 38 C.F.R. § 3.303.

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, generally medical, establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998).

If the positive and negative evidence is in approximate balance, the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

1. Entitlement to service-connected aggravation of bilateral pes planus

The Veteran is seeking entitlement to service connection for bilateral pes planus. Following a thorough review of the Veteran's medical records, the Board finds that an award is warranted.

As an initial matter, the Board finds that the Veteran had a current disability during the appeal period. A December 2018 ankle conditions examination shows the Veteran has bilateral pes planus. See VA Examination dated December 2018.

The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's bilateral pes planus preexisted his military service from November 22, 1988 to November 21, 1992. The Veteran's February 1988 enlistment examination reveals a notation of pes planus. In a January 2019 Notice of Disagreement (NOD), the Veteran wrote that he was born with pes planus.

The appellant established "Veteran" status based on his period of active duty service. The Veteran's appeal is based on the period of active duty from November 22, 1988 to November 21, 1992.

In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held if 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. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to 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. Id.; see also 38 C.F.R. § 3.306(b).

In a January 2019 NOD, the Veteran wrote, "I experienced great pain during my boot camp training, School of Infantry and Camp Geiger...and continuing assignment. I took the routinely provided medicine...Immediately after discharging I sought treatment...and was prescribed insole/inserts for support."

In an April 2020 statement, the Veteran's wife wrote that the Veteran often complained of foot pain while in service. She wrote:

[He] would often talk about how his flat feet...were literally killing him. He talked about only being given...Motrin to deal with his pain. As a former Navy Corpsman, I often saw Marines and understood how they were treated. He believed he as well as other Marines were frowned upon if they visited sickbay too often. I personally examined [him] while stationed on the U.S.S. Canopus, so I can attest to his constant feet...pain...I have seen him suffer greatly with pain.

In an April 2020 statement, the Veteran's mom wrote, "Often he called home complaining about how bad his feet hurt. He said he wanted to get
complained of foot pain while in service. She wrote:

In an April 2020 statement, the Veteran's mom wrote, "Often he called home complaining about how bad his feet hurt. He said he wanted to get out because the long marches and all the physical activities were very painful for his feet...Later throughout his tour, he often complained of feet pain."

In an April 2020 Form 9, the Veteran wrote that during service he experienced extreme pain due to flat feet. He wrote, "After 25-mile force marches, I was in severe pain, but did not go to medical due to being criticized for being weak. All activities proved to be painful due to flat feet. I considered exiting the military." He wrote that he obtained treatment shortly after leaving service. He received inserts in 1994. He wrote that his severe pronation was clearly exacerbated by the rigorous demands of his military service. He wrote that the rigorous impact of boot camp, running, obstacle courses, and force marches aggravated his flat feet.

In a March 2021 medical treatment record, the Veteran had bilateral foot pain and a long-standing problem with pronation of the feet. He received injections and used inserts.

In a February 2022 hearing, the Veteran testified that within six to nine months after entering service, he experienced a lot of pain in his feet. He had called his mom and brother telling them he wanted to leave service due to the pain. After marches and drills, he would walk on the side of his shoe and not let his feet touch the ground because they were so painful. He was given Motrin for treatment. He stated that the pain was so unbearable that he walked on the side of his feet without letting them touch the ground. He pronated his feet so much that his ankles felt like they were rolling in. He received injections for his feet every six to nine months. He also got massages. His feet knotted and cramped up daily. He did not experience any pain in his feet prior to service. He used to play sports and perform manual labor on the farm with no pain. He believed that his bilateral pes planus worsened in service because he did not have pain prior to entering service, but experienced excruciating, ongoing pain that began while he was in service.

In a statement received in March 2022, the Veteran's dad wrote:

As time progressed in his training, I recall him calling me in tears talking about his feet. He wanted to get out of the military because he was in so much pain. He told me it was extremely painful for him to walk, run, apply pressure, and even put on the boots required for him to wear in the Marines...Over the years since getting out of the Marine Corps I have watched him change shoes often two or more times in a day all because of the pain he continues to experience in his feet.

In a March 2022 statement, the Veteran's brother wrote:

He walked gingerly and seemed to be in much pain upon returning home. He complained about his feet...quite often. He often stated then, as he does now, both his feet seemed to be swelling and in extreme pain when sitting and walking. He often advised his feet were extremely tender to the touch and tried a myriad of shoes and arch supports to ease the pain and discomfort. Over the years since being honorably discharged, his complaints about his feet have been ongoing.

In a March 2022 statement, the Veteran's wife wrote:

We met in 1989, on the U.S.S. Canopus AS-34 in the medical department. I was working as a medical assistant and [he] came to medical complaining about his feet...During the examination, he shared how his feet...have been bothering him since he entered the military.

Since we married in 1990, I have watched him suffer tremendously with foot pain due to his flat feet. From 1990 to present, he has suffered with the following extreme pains: bilateral foot pain...In order to maintain a normal life, he depends on Naproxen, Meloxicam, Flexoril, Ibuprofen, and other medications and creams.

In a March 2022 correspondence, the Veteran wrote that prior to entering service, he was not experiencing any pain in his feet related to pes planus. Shortly after boot camp and the School of Infantry, he began experiencing extreme foot pain that was
about his feet...During the examination, he shared how his feet...have been bothering him since he entered the military.

In a March 2022 correspondence, the Veteran wrote that prior to entering service, he was not experiencing any pain in his feet related to pes planus. Shortly after boot camp and the School of Infantry, he began experiencing extreme foot pain that was so excruciating he could barely walk. He wrote that after a 25-mile force march, he had to walk on the side of his feet and not put them flat on the ground. He was provided Motrin and was told to "suck it up." Prior to service, he was athletic and never had pain in his feet. He believed that his bilateral pes planus was exacerbated by service. Orthotics and injections only provided temporary relief.

As the evidence of record shows that there was an increase in the severity of bilateral pes planus during service the presumption of aggravation attaches. Again, in order to rebut the presumption of aggravation, there must be 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. 38 C.F.R. § 3.306.

Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009).

Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996).

In this case, the Veteran's testimony and lay evidence of record make it clear that the Veteran's military service caused a permanent worsening of his bilateral pes planus. Here, the Veteran did not experience foot pain prior to service; however, within six to nine months of being in service, he began experiencing extreme foot pain that was so excruciating he could barely walk, causing him to consider leaving the military. He even called his mom and brother telling them he wanted to leave service due to the bilateral foot pain he was experiencing.

In this case, 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 and service connection for bilateral pes planus based upon aggravation of a pre-existing disability is granted. 38 U.S.C. § 1153; 38 C.F.R. § 3.306.

2. Entitlement to service connection for a right ankle disability as secondary to service-connected bilateral pes planus

The Veteran claims entitlement to service connection for a right ankle disability as secondary to his now service-connected bilateral pes planus. Following a thorough review of the Veteran's medical records, the Board finds that he is entitled to an award of service connection. Secondary service connection is the only theory of service connection raised by the Veteran and his representative; no other theory is raised by the record. As a result, the Board will limit its analysis to the theory advanced by the Veteran and his representative. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008).

In a January 2019 NOD, the Veteran wrote that he received injections for ankle pain. He wrote that his right ankle condition stemmed from his
The Veteran claims entitlement to service connection for a right ankle disability as secondary to his now service-connected bilateral pes planus. Following a thorough review of the Veteran's medical records, the Board finds that he is entitled to an award of service connection. Secondary service connection is the only theory of service connection raised by the Veteran and his representative; no other theory is raised by the record. As a result, the Board will limit its analysis to the theory advanced by the Veteran and his representative. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008).

In a January 2019 NOD, the Veteran wrote that he received injections for ankle pain. He wrote that his right ankle condition stemmed from his flat feet, causing severe ankle pain.

In an April 2020 Form 9, the Veteran wrote that he received shots for his ankle pain for years. He believed that his right ankle disability was secondary to his bilateral pes planus.

In a February 2022 hearing, the Veteran testified that his right ankle condition was due to his flat feet. He received injections for treatment. Because of how he pronated his feet from his bilateral pes planus, his ankle almost touched the ground.

In a March 2022 statement, the Veteran's wife wrote, "From 1990 to present, he has suffered with the following extreme pains...bilateral ankle pain...he has had numerous injections in his ankles...Regularly, he receives injections into his...ankles. In order to maintain a normal life, he depends on Naproxen, Meloxicam, Flexoril, Ibuprofen, and other medications and creams."

In a statement received in March 2022, the Veteran's dad wrote, "Over the years since getting out of the Marine Corps I have watched him change shoes often two or more times in a day all because of the pain he continues to experience in his...ankles."

In a March 2022 correspondence, the Veteran wrote that his ankle disability was secondary to his bilateral pes planus due to over pronation. He had consistent ankle pain. He received injections and pain medication to control the pain. He also wore an ankle support. The pain began shortly after entering service.

The first and most fundamental requirement for any service-connection claim is the existence of a current disability. 38 U.S.C. § 1110; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Pain without a diagnosis can constitute a current disability if the pain results in functional impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Federal Circuit limited its holding in Saunders, stating "we do not hold that a Veteran could demonstrate service connection simply by asserting subjective pain - to establish a disability, the Veteran's pain must amount to a functional impairment. To establish the presence of a disability, a Veteran will need to show that his pain reaches the level of a functional impairment of earning capacity." Id. at 1367. Accordingly, subjective pain alone is not enough to establish a current disability, and consideration should be given to the impact, or lack thereof, from the reported pain, focusing on evidence of functional limitation.

In his February 2022 hearing, the Veteran testified that he had right ankle pain that resulted in functional impairment/disability. He testified that he had difficulty walking due to his ankle pain because of how he pronated his feet. See Hearing Transcript dated February 2022. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability.

Regarding the second element, the Veteran is now service-connected for bilateral pes planus, among other disabilities. Accordingly, the Board finds that the Veteran has satisfied the second element, evidence of a service-connected disability.

Finally, with respect to the third requirement, a causal relationship between the service-connected disability and the current disability, the Board finds that the evidence establishes that the Veteran's right ankle disability is due to his service-connected bilateral pes planus.

The Veteran underwent a VA examination in December 2018 for ankle conditions. In the examination, the examiner wrote, "Veteran has symptomatic severe pes planus, right greater than the left. It is the pes planus deformity, pronounced pronation, that is causing the medial ankle pain." The VA examiner then provided a negative nexus opinion for the theory of direct service connection. While he did not provide a nexus opinion for the theory of secondary service connection, in his rationale, the examiner wrote, in relevant part, "Veteran developed pes planus...and his current ankle pain is directly related to his pes planus (flat feet
evidence establishes that the Veteran's right ankle disability is due to his service-connected bilateral pes planus.

The Board finds the opinion of the December 2018 VA examiner provides clear and well-reasoned explanations with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board places great probative value on this nexus opinion.

Additionally, a February 2022 medical treatment record provided, "Discussed the etiology of the patient's symptoms and that he has a flat deformity. He has such a severe deformity that he has started to develop the lateral ankle impingement due to overpronation of feet."

The only competent evidence of record addressing whether the Veteran's bilateral pes planus caused his current right ankle disability weighs in favor of the claim. Therefore, service connection for a right ankle disability is granted.

3. Entitlement to service connection for a right shoulder disability

The Veteran is also seeking entitlement to service connection for a right shoulder disability. Following a thorough review of the Veteran's medical records, the Board finds that an award is warranted.

The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert, 26 Vet. App. at 48, 55. In this case, there is a question as to whether the Veteran's right shoulder disability preexisted his military service from November 22, 1988 to November 21, 1992. The Veteran's February 1988 enlistment examination reveals a notation that the Veteran fell in 1986 and separated his right acromioclavicular joint. The notation reads, "Operated on with repair of the acromioclavicular separation. Does not hurt or interfere with any activity. He engages in sports without any difficulty. Attempting to enlist in the Marines. Examination shows no tenderness and full painless motion in the shoulder. He can take good resistance in abduction and forward flexion without pain in the shoulder." An X-ray of the right shoulder showed that the joint was normal. The February 1988 enlistment examination revealed a notation of a surgical scar of the right shoulder from a fractured right shoulder in July 1986.

In a January 2019 NOD, the Veteran wrote that his right shoulder condition occurred prior to service. In an April 2020 statement, the Veteran's mom wrote that he had had right shoulder surgery prior to entering service. In a February 2022 hearing, the Veteran testified that he had a right shoulder condition prior to service. Initially, he was told that he could not enter service because there was a pin in his shoulder, however, he was given a waiver so that he could enter service. In a March 2022 statement, the Veteran's wife wrote that since 1990 the Veteran suffered from extreme shoulder pain. In a March 2022 correspondence, the Veteran wrote that he had surgery on his right shoulder prior to entering service.

The appellant established "Veteran" status based on his period of active duty service. The Veteran's appeal is based on the period of active duty from November 22, 1988 to November 21, 1992.

In Wagner, the Federal Circuit held if 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. 370 F.3d at 1096, In that case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to 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. Id.; see also 38 C.F.R. § 3.306(b).

A November 1988 STR provided,
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. 370 F.3d at 1096, In that case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to 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. Id.; see also 38 C.F.R. § 3.306(b).

A November 1988 STR provided, "The Veteran presents himself to medical boards complains of right shoulder problems for three years. States has had surgery and has a pin in shoulder now." The STR also noted an A.C. separation repair. The Veteran's November 1992 separation examination showed scars on the Veteran's right shoulder.

The Board acknowledges a December 2018 opinion in which the examiner determined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner reasoned:

Review of the available electronic record shows that the Veteran had no complaints of right shoulder pain or injury while on [active duty]. He underwent a surgical correction of an a/c joint dislocation and possible fracture (conflicting data in STR), either of which can [be] anticipated to cause arthritis in the [a]ffected joint over time. Based on the data available, it is this examiner's opinion that the current right shoulder condition(s) were not as likely as not aggravated beyond its natural course following an A/C dislocation with surgical repair.

However, the Board finds the opinion of the December 2018 VA examiner was based on an incomplete factual premise because, at the time of the examination, the examiner did not have the opportunity to review the hearing testimony which was provided in February 2022 and the lay evidence from the Veteran provided in January 2019, April 2020, and March 2022. Furthermore, while the December 2018 examiner wrote that the Veteran had no complaints of right shoulder pain or injury while on active duty, both the Veteran and his wife, who worked as a medical assistant in service, reported that he did not seek medical treatment in service because it was frowned upon in the Marines. Thus, the Board finds that the opinion of the December 2018 VA examiner, through no fault of their own, was based on an incomplete factual premise. A medical opinion based on an inaccurate or incomplete factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the opinion of the December 2018 VA examiner is not probative.

In a January 2019 NOD, the Veteran wrote that the training as an Infantry was instrumental in making his shoulder problems worse. He had been taking medication and receiving injections since discharging from service.

In an April 2020 Form 9, the Veteran wrote that his right shoulder disability was exacerbated his service, to include duties such as running obstacle courses, carrying backpacks, forces marches, and self-defense tactics.

In a February 2022 hearing, the Veteran testified that performing pullups and all the physical activity in service bothered his shoulder. He had surgery in 1987. His shoulder constantly hurt in service. He took medication, received massages, and saw a chiropractor for his shoulder. He also noticed that his shoulder got weaker in service and had more limited range of motion. He stated that the pain in the shoulder and the limitation of motion began after he performed repetitive exercises in physical training and boot camp. The pushups, bending, thrusting, and running with a backpack all aggravated his shoulder.

In a March 2022 correspondence, the Veteran wrote that the wear and tear of service to include pull-ups, push-ups, obstacle courses, self-defense training, and carrying 85 pounds or more in a backpack for years impacted his shoulder. He experienced pain shortly after boot camp. He had limited range in the right shoulder and used medication daily with a tense unit, ice, and chiropractic care for treatment. He was given Motrin and told to suck it up and deal with the pain.

As the evidence of record shows that there was an increase in the severity of a right shoulder disability during service, the presumption of aggravation attaches. To rebut the presumption of aggravation, there must be 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. 38 C.F.R. § 3.306.

Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R
He experienced pain shortly after boot camp. He had limited range in the right shoulder and used medication daily with a tense unit, ice, and chiropractic care for treatment. He was given Motrin and told to suck it up and deal with the pain.

Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt, 1 Vet. App. at 297. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis, 276 F.3d at 1345. Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green, 1 Vet. App. at 323. If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon, 8 Vet. App. at 529.

In this case, the Veteran's testimony and lay evidence of record make it clear that the Veteran's military service caused a permanent worsening of his right shoulder disability. Here, the Veteran's right shoulder disability was fully healed and asymptomatic after his pre-service surgery. Following that surgery, he got the range of motion back in his right shoulder and experienced no pain. An X-ray of the right shoulder taken during his enlistment examination showed that the joint was normal. However, right shoulder pain and limited range of motion came back after daily heavy use of the joint in physical training and in his duties as an Infantryman in service. The December 2018 VA examination report showed the Veteran still had pain of the acromioclavicular joint, painful motion, pain with non-weight-bearing, and limited overhead activity as residuals of the arthroscopic shoulder surgery. In his February 2022 hearing, the Veteran testified that he had right shoulder pain that resulted in functional impairment/disability. He testified that he had pain, limitation of motion, and weakness in his right shoulder. See Hearing Transcript dated February 2022.

In this case, 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 and service connection for a right shoulder disability based upon aggravation of a pre-existing disability is granted. 38 U.S.C. § 1153; 38 C.F.R. § 3.306.

REASONS FOR REMAND

Entitlement to service connection for sleep apnea is remanded.

The Veteran also claims entitlement to service connection for sleep apnea.

In his January 2019 NOD and April 2020 Form 9, the Veteran wrote that he had been on a CPAP machine for his sleep apnea for years.

In his February 2022 hearing, the Veteran testified that he was diagnosed with sleep apnea about 15 plus years ago. He used a CPAP for treatment. He reported that he was on the USS Canopus AS34 while in service. During one specific training, a smoke grenade was placed near him, and he had a hard time breathing because of the smoke inhalation. He was not given treatment for the inhalation; however, it took a day and a half for him to recover and be able to breathe normally again. He stated that he had had sleep apnea problems ever since. He believed that incident triggered his sleep apnea. He did not seek medical treatment for the smoke inhalation because it was frowned upon in the Marine Corps.

In a March 2022 statement, the Veteran's wife wrote that the Veteran suffered from sleep apnea. She wrote, "[He] has been using a CPAP machine for years. He told me about his experience in which he suffered smoke inhalation while in the military."

In a March 2022 correspondence, the Veteran wrote that on his enlistment examination, he did not have asthma
treatment for the inhalation; however, it took a day and a half for him to recover and be able to breathe normally again. He stated that he had had sleep apnea problems ever since. He believed that incident triggered his sleep apnea. He did not seek medical treatment for the smoke inhalation because it was frowned upon in the Marine Corps.

In a March 2022 correspondence, the Veteran wrote that on his enlistment examination, he did not have asthma; however, on his separation examination, the examiner noted that he did have asthma. He wrote that he began experiencing lung problems while in service. While conducting training in service, a smoke grenade was set off next to him and he was unable to breathe. He suffered from smoke inhalation but was refused treatment. He believed this triggered his sleep apnea. His symptoms included interrupted breathing, gasping for air during sleep, awakening with dry mouth, morning headache, fatigue, insomnia, excessive daytime sleepiness, falling asleep while driving, and irritability. He had been on a CPAP machine for years.

The Veteran has not undergone a VA examination regarding this claim. In this case, the Veteran has a diagnosis of sleep apnea sufficient to meet the first element of McLendon. Furthermore, the Veteran has reported an in-service incident of smoke inhalation, which he believed triggered his sleep apnea. The medical evidence of record, the Veteran's hearing testimony, and the lay statement of record also indicate a potential link between his disability and service. The Board finds that the low threshold is met here and VA's duty to provide a VA examination is triggered. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). There is an indication that the Veteran experienced sleep apnea during the appeal period that may be related to his military service. Thus, remand is required.

Accordingly, the matter is REMANDED for the following action:

1. Schedule the Veteran for a VA examination for his sleep apnea. The examiner must review the claims file. The examiner is requested to provide an opinion as to the following questions:

(a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that sleep apnea was present but undiagnosed in service? Why or why not?

Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that sleep apnea is related to smoke grenade inhalation in service? Why or why not?

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Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's and his wife's statements regarding the onset of his symptoms, to include his in-service report of smoke inhalation.

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K.M.

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.

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