Citation Nr: 1233545 Decision Date: 09/27/12 Archive Date: 10/09/12 DOCKET NO. 09-00 338A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from February 1983 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama. The Veteran appeared at a hearing before a local hearing officer at the RO in November 2011 and at a Travel Board hearing before the undersigned Veterans Law Judge at the RO in June 2012. Transcripts of the hearings are of record. At the time of his June 2012 hearing, the Veteran raised the issues of service connection for both ankles and his left knee as secondary to his pes planus. Based upon the below decision, the Board has now granted service connection for pes planus. As a result of the Veteran's testimony and the Board's grant of service connection for pes planus in the below decision, the issues of service connection for a bilateral ankle and left knee disorders have now been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Bilateral pes planus was noted at the time of examination for entry into active military duty. 2. Resolving reasonable doubt in favor of the Veteran, his preexisting bilateral pes planus was aggravated beyond the natural progress of the condition during military service. CONCLUSION OF LAW The Veteran's preexisting bilateral pes planus was permanently aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.306(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. See Grover v. West, 12 Vet. App. 109, 112 (1999). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet. The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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. § 3.303(d). 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. In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). The provisions of 38 U.S.C.A. § 1153 provide criteria for determining when a pre-existing disability has been aggravated. Under the statute: A preexisting 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. § 1153. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). VA's implementing regulation provides that: (a) General. A preexisting 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. (b) Wartime service; peacetime service after December 31, 1946. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. (1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. (2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability. 38 C.F.R. § 3.306(b). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran's service treatment records reveal that at the time of his September 1982 enlistment examination, he was noted to have asymptomatic pes planus and early asymptomatic bunions. In March 1983, the Veteran was seen with complaints of pain in both feet because of pes planus. Physical examination of both feet revealed decreased weight bearing and arch with moderate pronation. It was the examiner's assessment that the Veteran had pes planus. August 1988 X-rays of the Veteran's left foot, taken in conjunction with left ankle X-rays, revealed very marked pes planus configuration of the foot. At the time of a February 1989 examination, normal findings were reported for the feet. The Veteran checked the "no" box on his February 1989 report of medical history when asked if he had foot trouble. On his April 1990 report of medical history, the Veteran again checked the "no" box when asked if he had or had ever had foot trouble. At the time of a May 1990 service separation examination, normal findings were reported for the feet. In his December 2007 notice of disagreement, the Veteran indicated that he spent 24 years in the Army Reserves and 4 years on active duty. He stated that during that time, he spent a lot of time in the field where he was constantly on his feet. He also noted doing a lot of marching, physical training, and exercise. The Veteran indicated that he was often issued ill-fitting boots and was not provided with proper foot care. He stated that he could not help it that VA was unable to retrieve his service medical records. The Veteran noted that VA should take into consideration the fact that he entered the military with foot problems and that the constant wear and tear on his feet took its toll. In his January 2009 substantive appeal, the Veteran indicated that the Navy took him in with his foot problems and he spent seven years in service with foot problems. He noted receiving treatment while aboard the USS Buchanan. The Veteran stated that the approximate time frame for treatment was from 1985 through 1989. He noted that his first appointment was with a corpsman who made him see a doctor. The Veteran reported that his medical provider fitted him with inserts for his steel toe boots. He stated that the inserts were very hard to wear because they were not flexible. He noted that often the inserts were unbearable to wear because they forced him to have an arch when he did not actually have one. He indicated that his job required him to climb ladders and that this also caused a problem with his feet. The Veteran stated that his time in the military aggravated his preexisting flat foot problems. At his November 2011 hearing, the Veteran testified that he did not even know that he had flat feet prior to joining the military. He indicated that he played football, baseball, and that he joined the band when he was younger. The Veteran testified that he started having problems at boot camp. He indicated that he when he started having problems, he made an appointment and was told that he had flat feet. He stated that he was given a pair of inserts and told that there was nothing else that could be done. The Veteran testified that the reason that there were not a lot of sick call visits was that he had been told that nothing could be done. He noted that the physician who performed the last VA examination for other claimed disabilities stated that the flat feet were the cause of his other claimed disabilities. The Veteran indicated that he wore the same type of shoe/boot for the eight years he was in the Navy. He testified that it was his belief that his flatfoot condition was aggravated by his period of service. At the time of his June 2012 Travel Board hearing, the Veteran again testified that he did not know that he had flatfeet prior to going into service. He noted that as soon as he went to basic training he began to have problems with his feet. He reported that he wore standard issued boondockers while in the service. The Veteran stated that his job as a radioman required him to be on his feet a lot. He testified that he was a supervisor in addition to being the antenna officer, the Xerox repairman and the teletype repairman. The Veteran indicated that he walked on steel decks. He noted that he was sent to San Diego Naval Station Hospital where a pair of custom plastic orthotics were made for his feet. The orthotics were made of hard plastic. He stated that he suffered with this condition because he had been told to just deal with it. He noted that he had been subsequently fitted with orthotics and special shoes. The Veteran testified that he was receiving social security disability. He noted that when he came into the military he could walk normally and stated that he could not walk normally after his period of service. The Veteran indicated that he started having foot problems as soon as he entered service. He reported that he joined the military right out of high school. Based upon the above, it is clear that the Veteran had pes planus prior to his entrance into service. This is confirmed by the findings of asymptomatic pes planus at the time of his entrance examination. The question then becomes whether his preexisting pes planus was aggravated beyond its course of natural progression in service. The Board notes that he Veteran was seen with complaints of foot problems in March 1983. He has also testified as to having been prescribed orthotic inserts for his shoes while in service. Although the service treatment records do not demonstrate that the Veteran was given inserts for his shoes, the Board finds the Veteran's testimony credible. Moreover, the Board notes that the 1988 x-ray of the left foot revealed marked pes planus. Although the Board notes that the Veteran checked the "no" box when asked if he had foot problems on his service separation report of medical history and that normal findings for the feet were reported on his service separation examination, the Veteran has indicated and testified that he was told after being given the inserts that nothing else could be done with his feet and that he would have to deal with it. As such, he did not seek further treatment or feel it was necessary to report any further foot problems. While the negative findings are against the Veteran's claim, the Veteran's explanation as to why he reported these findings is plausible and credible. Moreover, the objective medical findings demonstrate treatment for pes planus in service along with an apparent increase in severity based upon the X-rays findings of marked pes planus in the left foot. The Board notes that for the Veteran to prevail in his claim it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). While the evidence does not overwhelmingly support the grant of service connection for bilateral pes planus, it cannot be stated that the preponderance of the evidence is against the claim. The Veteran clearly had pes planus prior to his entrance into service. The evidence demonstrates that his pes planus continues to the present day. The medical evidence as to whether the Veteran's pes planus was permanently aggravated by service, while not overwhelmingly in support of such a proposition, is at least in equipoise. In such a case, service connection for pes planus on the basis of aggravation is warranted. Duty to Assist and Notify 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. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 (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 with regard to this claim, further assistance is not required to substantiate that element of the claim. ORDER Service connection for bilateral pes planus is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs