Citation Nr: 1126392 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 09-15 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from November 2002 to February 2008. This appeal to the Board of Veterans' Appeals (Board) is from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which, in pertinent part, denied service connection for a left ankle disability, low back disability, left knee disability, and bilateral pes planus. As support for his claim, the Veteran testified at a hearing at the RO in October 2009, before the undersigned Veterans Law Judge (VLJ) of the Board, also commonly referred to as a Travel Board hearing. A transcript of the hearing is associated with the claims file. In December 2009, the Board denied the claim for service connection for a left ankle disability, but granted the claim for service connection for a low back disability. Also, the Board remanded the claims for service connection for a left knee disorder and bilateral pes planus to the RO, via the Appeals Management Center (AMC), for additional development and consideration. In a January 2011 rating decision, on remand, the AMC granted the claim for service connection for the left knee disorder. The Veteran has not since appealed either the initial rating or effective date assigned for this disability, so the left knee claim is no longer at issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and the effective date). See, 38 C.F.R. § 20.200 (2010). But, the claim for bilateral pes planus remains on appeal before the Board. That is, the AMC issued a supplemental statement of the case (SSOC) in January 2011 continuing to deny the claim and returned the file to the Board for further appellate review. As such, the Board is now deciding the claim for service connection for bilateral pes planus. FINDINGS OF FACT 1. The pes planus disability was noted on entrance examination; thereby the disability existed prior to service. 2. There is no competent and credible evidence that his bilateral pes planus increased in severity during service beyond the natural progression of the disease. 3. There is also no evidence that the bilateral pes planus has been chronically aggravated by his service-connected low back and left knee disabilities. CONCLUSION OF LAW The Veteran's bilateral pes planus was not aggravated by active service, nor any service-connected disability. 38 U.S.C.A. §§ 1111, 1113, 1153, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has clarified that VCAA notice errors are not presumptively prejudicial, rather, should be determined based on the facts of each individual case. Moreover, as the pleading party, the Veteran, not VA, has this burden of proof for showing there is a VCAA notice error in timing or content and, furthermore, that it is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in May 2008, so prior to initially adjudicating his claim in July 2008. And on remand by the Board in December 2009, the RO sent corrective notice in April 2010 that informed the Veteran specifically with regards to establishing his claim based on aggravation and secondary theories of service connection. Altogether, these letters informed him of the evidence required to substantiate his claim and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. Note also that the May 2008, and the more recent April 2010 letters complied with Dingess by discussing the downstream disability rating and effective date elements of his claim. And of equal or even greater significance, since providing that additional Dingess notice, the RO has readjudicated his claim in the January 2011 SSOC - including considering the additional evidence received in response to that additional notice. See again, Mayfield IV and Prickett, supra. So the timing defect in the provision of that additional notice has been rectified. It follows that a prejudicial error analysis by way of Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) is simply not warranted here. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). He submitted personal statements and testified at a personal hearing before the Board in October 2009. As well, the RO and AMC obtained his VA examination in June 2008, and a VA examination and medical opinion in April 2010 on the determinative aggravation issues raised by his claim, satisfying the principles of McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). And importantly, the Board primarily remanded this claim in December 2009, for the AMC to obtain this type of medical opinion for his claim, as has been provided by the April 2010 VA examiner. The Board also remanded this case in December 2009 so the AMC could obtain any outstanding VA treatment records, but requests by the AMC to the Veteran to identify any such treatment by the VA yielded no response from him. The duty to assist him in developing his claim is not a "one-way street." If he wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds the AMC made sufficient attempts to obtain these VA treatment records. See Chest v. Peake, 283 Fed. Appx. 814 (C.A. Fed. 2008). The Board is therefore satisfied there was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). That is to say, the Board is satisfied the RO/AMC made reasonable efforts to obtain any identified medical and other records. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained and that is obtainable. The Board is therefore satisfied that VA has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A. II. Analysis-Entitlement to Service Connection for Bilateral Pes Planus The Veteran contends that his preexisting flat feet were permanently worsened by his period of military service, due to the dropping of his arches after having to wear non-orthotic, military-issued boots. See May 2009 substantive appeal (VA Form 9). Although not raised by the Veteran, the Board has also considered the possibility that his service-connected disabilities, especially his low back and left knee disabilities, chronically worsened/aggravated his flat feet condition. When determining whether service connection is warranted, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Thus, the Board will address the claim on both direct (aggravation theory) and secondary bases. After carefully reviewing the evidence, however, the Board finds no basis to grant this claim for service connection. As discussed below, there is no competent and credible evidence that establishes a permanent worsening of his pre-existing bilateral pes planus due to service beyond its natural progression. And there is no basis for potential secondary service connection in the alternative. There is no competent and credible evidence, let alone contention, that his service-connected low back and left knee disabilities chronically aggravated his pes planus. Service connection is granted if it is shown the Veteran has disability resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. Stated somewhat differently, to establish entitlement to service connection, there must be: (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, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). In this case, the Veteran's July 2002 entrance examination denoted that the Veteran then had mild pes planus in his feet. Therefore, this condition was noted at entry and the presumption of soundness does not apply. See 38 U.S.C.A. §§ 1111, 1137. That is, the notation on the Veteran's service records that he had mild pes planus prior to service clearly and unmistakably proves that the Veteran had flat feet prior to service. Moreover, the Veteran does not dispute that he had pre-existing bilateral pes planus. See generally October 2009 personal hearing transcript. Rather, his essential contention is that it was permanently worsened by his period of active duty. See id. But, since his bilateral pes planus was noted at entrance into service, he has the burden - not VA, to show a permanent (not temporary or intermittent flare-up) worsening of the disability during service beyond natural progression. In other words, he may only bring a claim for aggravation of this pre-existing bilateral pes planus. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see also VAOPGCPREC 3-2003 (July 16, 2003); 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.A. § 1153; 38 C.F.R. § 3.306(a). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). And in this regard, the April 2010 VA examination report provides competent medical evidence specifically discounting the notion that the Veteran's pre-existing pes planus was permanently worsened during service beyond the natural progression of the disease. In particular, the examiner stated, "...the actual structure of the feet themselves have remained unchanged over the years and there is no evidence of a worsening or a permanent aggravation, nor of even a natural progression of those feet and pes planus. Therefore, I do not find any permanent aggravation of the feet and of the pre-existing bilateral pes planus." The Board finds that the April 2010 VA medical opinion is highly probative, and entitled to great evidentiary weight. The VA examiner reviewed the claims folder, including the STRs and the Veteran's entire medical history, interviewed the Veteran and physically examined him before rendering a medical opinion. The examiner based this opinion upon review of the claims folder,. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board's review of the other medical evidence of record, especially the STRs, also appears to support the medical opinion that the pes planus was not permanently worsened beyond the natural progression of the disease. His STRs and post-service medical records are unremarkable for evidence of additional disability due to aggravation of this pre-existing bilateral pes planus during or as a consequence of his military service. There is simply no medical evidence supporting the notion that his pre-existing bilateral pes planus was permanently or chronically worsened during or by his service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The Board also places limited probative value on the Veteran's lay statements in support of his claim. The Veteran is certainly competent to report on the pain caused by his pes planus and perceived increase in symptomatology in service, since within the realm of lay observation and experience. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Falzone v. Brown, 8 Vet. App. 398, 402 (1995), 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). Nonetheless, the Board finds that the April 2010 VA examiner's assessment constitutes competent medical evidence that clearly and unmistakably shows that it did not increase in severity in service. While the Veteran may sincerely believe that his military service chronically aggravated his pes planus, assessing the increase in severity of a pre-existing bilateral pes planus condition is of a complex medical nature that in turn requires medical expertise. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, his competency to make this claim must be distinguished from the weight and credibility of his lay testimony, which are factual determinations going to the ultimate probative value of this evidence. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Since the Veteran is not competent to make determinations regarding whether there was permanent aggravation of this acknowledged pre-existing condition during or as a result of his military service, there is no need to discuss the credibility of his statements in this specific regard. It is worth pointing out that independent medical evidence is needed to support the notion that the pre-existing pes planus increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). And, here, for the reasons and bases discussed, this required supporting medical evidence is not present. Rather, and in any event, there is a highly probative medical opinion of record to establish that the Veteran's disability did not increase in severity during service. So the only remaining question is whether he also experiences bilateral pes planus on a secondary basis to any other service-connected disabilities. Establishing entitlement to service connection on this secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) and (b) (2010); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). But, the April 2010 VA examiner found that his bilateral pes planus have remained unchanged over the years, without evidence of worsening, so necessarily precluding the notion that another service-connected disability in turn chronically aggravated his bilateral pes planus. And importantly, there is simply no contention by the Veteran concerning the possibility that his pes planus was caused or aggravated by another service-connected disability-rather, he has contended the reverse notion, that his bilateral pes planus caused problems in his low back, knees and ankles. See personal hearing transcript, at 2 and 12. The Board finds no basis to further consider the possibility of secondary service connection. Accordingly, the Board finds that the preponderance of the evidence reveals that pes planus pre-existed service and did not permanently increase in pathological severity or disability beyond the natural progression of the disease. So there is no reasonable doubt to resolve in the Veteran's favor, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim for service connection for bilateral pes planus is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs