Citation Nr: 1125239 Decision Date: 07/05/11 Archive Date: 07/14/11 DOCKET NO. 08-01 615 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for pes planus (flat feet). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. McCarl, Law Clerk INTRODUCTION The appellant had verified active duty for training in the Army National Guard from June 1987 to September 1987. The appellant also had additional service in the Army National Guard through October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 RO rating decision that denied service connection for pes planus. FINDINGS OF FACT 1. Pes planus was not shown on examination prior to the start of the Veteran's period of active duty for training in the Army National Guard From June to September 1987, and service treatment records show no complaints or findings indicative of pes planus or foot problems during this time period. 2. Records show pes planus was first diagnosed in 1988, but not treated consistently until 2003. The Veteran has been treated for numerous problems with his feet and lower extremities since 2003. 3. No medical professional has ever linked the Veteran's current flat feet, or any other foot problem, to any aspect of the Veteran's period of service. 4. The weight of the evidence of record is against the Veteran's claim for service connection for pes planus. CONCLUSION OF LAW Pes planus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101(24), 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notice should inform the claimant about the information and evidence not of record that is necessary to substantiate the claim. It should also inform the claimant about the information and evidence that VA will seek to provide, and the information and evidence the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Here, the RO sent correspondence in May 2007 and two rating decisions in October 2007. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decision. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant. The case was last readjudicated in a January 2008 statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, or relevant evidence. The Board observes that VA did not provide the appellant with an examination in connection with his claim for service connection for pes planus. The Board finds, however, that an examination was not necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002). Specifically, under the law, an examination or opinion is necessary to make a decision on the claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the appellant's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The Board observes that, in this matter, the appellant's available service treatment records do not show treatment for or complaints of any foot-related injury or pain. Additionally, there is no indication in any of the medical records that the appellant's diagnosed pes planus may be associated with his period of active duty for training. As there is no evidence of any foot injury or pain in service and no indication that his pes planus is associated with his period of service, the facts of this case do not meet the criteria to warrant a VA examination. See id. The Board therefore finds that VA has satisfied both the notice and duty to assist provisions of the law. Analysis Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(24). To prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this instance, the appellant contends that he has pes planus that is related to service. The appellant specifically alleges that he developed pes planus (flat feet) during his active duty for training in 1987. The appellant had a verified period of active duty for training in the Army National Guard from June 1987 to September 1987. He also had additional service in the Army National Guard through October 1988. The report of the Veteran's January 1987 examination prior to entrance into service indicated that the feet and lower extremities were evaluated as normal. In an associated report of medical history, the Veteran checked "no" when asked whether or not he had a history of foot trouble. The appellant's service treatment records show no complaints, findings, or diagnoses of pes planus or for any foot problems during his brief period of active duty for training ending in September 1987. The first post-service evidence of record of any possible pes planus (or flat feet) is in May 1988, more than six months after the appellant's verified period of active duty for training in the Army National Guard. This single piece of evidence is the receipt showing the Veteran was billed $20.00 for an office visit with S. Seemuth, D.O. The diagnosis was "flat feet". The document contained no other information as to treatment, or etiology of the condition. Subsequent records do not show treatment for any problems involving the feet until 2003. In an August 2003 private treatment record, Dr. J. Enger, DPM, noted the appellant reported that his feet were tired and ached, and that he was interested in arch supports for his feet. The appellant also reported that he had just returned to work at a local factory, which required him to stand on cement all day. Dr. Enger objectively noted that the appellant had a significantly pronated gait. Dr. Enger's assessment reads as follows: Patient experiencing foot and leg fatigue due to a combination of having lost some weight and lost some muscle strength and lost some muscle mass while being treated for his brain cancer and the patient also experiences the foot and leg fatigue due to his long narrow excessively pronated foot structure and pes planus foot structure. The appellant continued to seek treatment for variously diagnosed lower extremity and foot problems (including pes planus) from Dr. Enger until February 2007. In a September 2003 record, Dr. Enger reports treating the Veteran for "B/L plantar fasciitis, B/L foot and leg fatigue, B/L tendonitis from disuse atrophy after healing from his cancerous brain tumor." Later that month, Dr. Enger treated the Veteran for a fractured left 5th toe, and fitted the Veteran with orthotics. Records show consistent treatment by Dr. Enger through 2005, then a gap until 2007, at which time the Veteran resumed treatment with Dr. Enger. In a February 2007 treatment record, Dr. Enger noted the appellant reported his work still required him to stand for long hours every day on hard cement surfaces in the factory. The objective findings again included pes planus and excessive pronated gait. Under "clinical history" it was noted that the Veteran had excessive pronation and posterior tibial tendinitis and posterior tibial tendon dysfunction B/L and plantar fasciitis/heel spur syndrome. The assessment included posterior tibial tendinitis and posterior tibial tendon dysfunction, and plantar fasciitis. Thorough review of all treatment records reveals that Dr. Enger never indicated or even hinted that the Veteran's pes planus (or any of his other foot problems) had a connection to his period of service. The Veteran did not submit a claim for service connection for pes planus until May 2007. The appellant provided numerous lay statements in support of his claim. In a June 2007 lay statement, the appellant's mother stated that after returning from active duty for training, the appellant complained about his feet. She reported that the appellant saw Dr. Seemuth, who diagnosed the appellant with flat feet. In a September 2007 lay statement, the appellant's high school physical education teacher reported that after appellant returned from active duty for training, he noticed the appellant's footprint was "completely flat" after coming out of the shower. The teacher stated he commented to the appellant that he should have his feet checked. In an October 2007 lay statement, the appellant's brother stated that after appellant returned from active duty for training, he had "lost his arches in his feet," and that he had no noticeable arch. In an October 2007 lay statement, the appellant's other brother stated that before the appellant had joined the Army National Guard, he did not have flat feet. He further reported that after returning from boot camp, the appellant had lost the arches in his feet. After reviewing all the evidence of record, and considering the Veteran's assertions and lay statements, the Board must conclude that the preponderance of the evidence is against the claim for service connection for pes planus. The factors weighing heaviest against the claim are the facts that there is no indication of injury to the feet or foot problems during service, and the fact that feet problems were not treated on a regular basis until 2003, and the fact that no medical professionals have related pes planus (or any other foot problem) to the Veteran's brief period of service. The factors favoring his claim are a diagnosis of pes planus in May 1988, and statements from friends and relatives indicating, essentially, that the Veteran's problems with flat feet had their onset in service. The Board gives great weight to the fact that service treatment records do not show any foot injuries, or other complaints or findings regarding the feet. While a solitary record shows that the Veteran was seen in May 1988 for pes planus, there is no indication on that record that the Veteran had a chronic problem in 1988, or that this problem had any connection with the Veteran's period of service. The Board cannot ignore the fact that the Veteran did not next seek treatment for foot problems until 2003. This long gap in time without treatment for the claimed condition is evidence against a finding that the Veteran had a continuous problem since service. Moreover, the Board finds it most significant that the private medical reports of record (from Dr. S and Dr. Enger) do not include any indication that the appellant's pes planus is related to his period of active duty for training in the Army National Guard. None of the private treatment records reflects the appellant's claimed medical history of pes planus during his period of service. More importantly Dr. Enger has indicated that the Veteran's multiple and varied foot problems stem from "experiencing foot and leg fatigue due to a combination of having lost some weight and lost some muscle strength and lost some muscle mass while being treated for his brain cancer and the patient also experiences the foot and leg fatigue due to his long narrow excessively pronated foot structure and pes planus foot structure." The fact that Dr. Enger, (the one who treated the Veteran's foot problems for many years), has not indicated a connection between pes planus and service also carries a great deal of weight. The Board notes that the appellant first claimed his pes planus was related to service in May 2007, nearly 20 years after his active duty for training and other service in the Army National Guard. The Board also notes that the claim for service connection for pes planus was submitted after the Veteran was treatment for a series of lower extremity and foot problems including a fractured toe, excessive pronation, posterior tibial tendinitis, posterior tibial tendon dysfunction, and plantar fasciitis/heel spur syndrome. The appellant has alleged in his own statements, and with evidence provided in the form of lay statements, that his current pes planus had its onset during his period of service, specifically during his active duty for training in the summer of 1987. As a layperson, however, the appellant is not competent to give a medical opinion on the diagnosis or etiology of a condition. See Bostain v. West, 11Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opinion on matters requiring medical knowledge"). The Board observes that the appellant is competent to report that he experienced foot problems or pain during service and/or that he has been diagnosed with a current bilateral foot disability (pes planus), but, as noted, he is not competent to provide a medical opinion regarding the etiology. Thus, the appellant's lay assertions, and the lay statements of his family members and high school physical education teacher, are not competent or sufficient. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The weight of the competent evidence demonstrates that the appellant's pes planus was not caused by any incident of service. This condition was neither incurred in nor aggravated by service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for pes planus must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for pes planus is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs