Citation Nr: 0903739 Decision Date: 02/03/09 Archive Date: 02/12/09 DOCKET NO. 03-08 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from May 1986 to July 1986. He served in the National Guard from May 1986 to May 1987 and had service with the Naval Reserves from May 1987 to May 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in pertinent part, denied entitlement to service connection for the above condition. The claims for entitlement to service connection for left knee, left ankle, and left foot disabilities are addressed in a separate decision of the Board. FINDING OF FACT 1. Pre-existing pes planus was not clearly and unmistakably not aggravated in service. 2. Current pes planus is related to pes planus that was aggravated in service. CONCLUSION OF LAW Pes planus was incurred in active service. 38 U.S.C.A. § 1111, 1131, 1137 (West 2002); 38 C.F.R. § 3.303, 3.306 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). This provision is applicable to veterans with peacetime service. 38 U.S.C.A. § 1137. The veteran contends that his pre-existing bilateral pes planus was aggravated as a result of active service. Service treatment records are unavailable for the period of the veteran's active service. It follows that his enlistment examination report is not of record. Therefore, there is no record that any defects such as pes planus were noted at the time of his enlistment and the presumption of soundness is for application. The veteran has consistently stated that his bilateral pes planus pre-existed service. In addition, in support of his claim, he submitted a May 2006 letter from his private physician noting that his bilateral foot problem, flat feet, was probably congenital and probably aggravated as a result of active duty service. The record also contains an April 2006 letter from a podiatrist diagnosing hereditary tight Achilles tendons and progressive degenerative changes of the feet. The doctor opined that military maneuvers such as hiking, running, and jumping would have aggravated the pre-existing foot condition. Records from the veteran's period of reserve service document pes planus as early as December 1987. Since service, his disability has regularly been found to be severe. While the opinions are unanimous in concluding that the veteran's disability pre-existed service, they indicate that there may have been aggravation in service. The evidence is therefore not clear and unmistakable that the pre-existing disability was not aggravated in service. The presumption of soundness is therefore not rebutted. Where the presumption is not rebutted, the claim becomes one for ordinary service connection instead of one for compensation based on aggravation. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Service connection requires competent evidence showing: (1) the existence of a present 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The veteran has provided competent statements to the effect that he had symptoms of pes planus in service. The record documents a severe disability shortly after service, and the private podiatrist and physician have provided medical opinions linking current pes planus to service. Accordingly, the criteria for the grant of service connection are satisfied and appeal is granted. ORDER Service connection for bilateral pes planus is granted. _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs