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Court Wins

Board Denial of Service Connection for Pes Planus Failed to Consider Theory of Aggravation

April Donahower

April 21, 2019

Updated: November 20, 2023

Court Win - Service Connection PTSD

Summary of the Case

The Veteran served honorably in the United States Army from 2000 to 2005.  Several years prior to joining the Army, he fractured his right heel.  However, this injury healed and no related issues were identified when he entered service.  Instead, the Army noted on the Veteran’s entrance examination that he had asymptomatic pes planus (i.e. flat feet).  When the Veteran transitioned out of the Army in 2005, he reported that he had developed foot problems during his deployment to Iraq.  He filed a claim for service connection for residuals of a right foot injury that same year, which VA granted in early 2006.  In July 2006, the Veteran sought care from a VA podiatrist for foot pain.  The podiatrist evaluated his gait and said that he lifted his heel too early, had notable pronation, and did not have much of an arch.  The podiatrist further stated that the Veteran had flat feet, severe pronation in both feet, painful feet, plantar fasciitis, and metatarsalgia.  During a follow up in December 2006, the same podiatrist elaborated on his previous notes from July.  He stated the Veteran’s biggest problems seemed to be related to his significantly flat feet and reiterated that he did not believe the Veteran’s old heel injury was the cause of the foot problems and pain he was having.

In June 2007, the Veteran filed a claim for a bilateral foot condition and later attended a VA examination.  The examiner stated that there was an indication that his bilateral plantar fasciitis and metatarsalgia were worsened by service, explaining that excessive training, faculty running shoes, and running on unyielding surfaces would have contributed to his conditions.  However, the examiner only provided an opinion as to service connection for the Veteran’s right foot.  In its decision, VA treated his claim as an increased rating claim for service connection for the left foot.  VA denied both and the Veteran continued to appeal to the Board of Veterans’ Appeals, specifically characterizing the appeal as “left plantar fasciitis and metatarsalgia.”

Board Denies Service Connection for Left Foot Condition, CCK Appeals

The Board’s July 2017 decision was fifth in a series of related decisions, all dealing with the Veteran’s left foot condition.  In its decision, the Board focused exclusively on the condition specifically highlighted by the Veteran in his appeal (i.e. plantar fasciitis and metatarsalgia).  CCK appealed this denial to the Court of Appeals for Veterans Claims (CAVC) in order to address whether the Board should have also discussed the possibility that the Veteran’s military service aggravated his pre-existing pes planus.  CCK argued that the Board failed to consider service connection for the Veteran’s left foot condition based on the theory of aggravation.  CCK further argued that the Board failed to comply with the duty to assist when it relied on a 2017 VA medical opinion that was inadequate.  Specifically, the medical opinion only spoke to causation and not aggravation.

The Court agreed with CCK’s arguments and remanded the Veteran’s case back to the Board for it to address the reasonably raised theory of service connection based on the evidence indicating that his pes planus was aggravated in service.

To read the Court’s full decision, click here.

About the Author

Bio photo of April Donahower

April joined Chisholm Chisholm & Kilpatrick in August of 2016 as an Associate Attorney. She currently serves as the Appellate Supervisor in our Veterans Law practice. April’s practice focuses on representing disabled veterans before the Court of Appeals for Veterans Claims.

See more about April