Citation Nr: 1302020 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 10-13 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for pes planus. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from July 1978 to August 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in San Diego, California. The Veteran relocated during the pendency of the appeal and original jurisdiction now resides with the VA RO in Milwaukee, Wisconsin. In July 2011 the Board remanded the claims for additional development, which has been completed. In July 2011 the Board recharacterized the issue of service connection for pes planus as service connection for a bilateral foot disability, to include pes planus and callouses, in order to encompass all of the Veteran's complaints. In an August 2011 rating decision service connection was granted for right and left foot callouses only. The issue of service connection for pes planus remains on appeal. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. 2. CONCLUSIONS OF LAW REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). A June 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and VA medical treatment records have been obtained. In November 2012 a formal finding of unavailability was made as to private medical records for Logan Heights Medical Clinic and Plasma Center after requests for medical records were made and no responses were received. The VAMC in San Diego reported that there were no outpatient treatment records for the Veteran from January 1983 to 1984. The Veteran did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Board has reviewed the Veteran's "Virtual VA" file. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in November 2008 and July 2011; the Veteran has not argued, and the record does not reflect, that these examinations as to the issue of service connection for hypertension were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners reviewed the record, evaluated the Veteran and provided an opinion with supporting rationale as to whether the Veteran's hypertension was related to service. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Pes Planus The June 1978 entry examination did not note pes planus, or flat feet. Similarly the June 1978 medical history did not contain any reports of pes planus or a history of pes planu or a history of foot pain. The Veteran entered service in July ---. 1978. On August 1, 1978 at a recruit screening physical examination the Veteran was noted to have flat feet. When no pre-existing injury or disease is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's injury or disease both (1) pre-existed service and (2) was not aggravated by service. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). Here no pre-existing disease was noted upon entry to active service. Therefore the burden is on the government to show by clear and unmistakable evidence that flat feet pre existed service. However, there is no evidence whatsoever, let alone clear and unmistakable evidence, that his flat feet existed prior to service. The July 2011 VA examiner's conclusion that "it is clearly stated on this Veteran's active service entrance exam on August 1, 1978 that he had flat feet." is wrong. At the time of the August 1978 examination the Veteran had already entered service. The VA examiner's conclusions, based on an inaccurate reading of the record and application of the law does not provide clear and unmistakable evidence that the Veteran's flat feet existed prior to service. As such the presumption of soundness has not been rebutted, the Veteran is presumed sound upon entry, and the claim is one for incurrence. Service treatment records reveal that the Veteran was found to have flat feet in August 1978. In November 1979, and twice in February 1980 he was treated for foot pain. In November 1980 he was treated for foot pain and noted to have bilateral flat feet. The July 2011 VA examiner concluded that pes planus was not caused by or a result of active service based on the conclusion that the Veteran's bilateral pes planus pre-existed service, which is inaccurate, therefore the opinion is of no probative value. In sum, the Veteran is presumed sound upon entry, which presumption has not been overcome by clear and unmistakable evidence. Flat feet manifested during service as evidenced by the record first noting flat feet in service. There is no evidence to the contrary. The Veteran has been treated for flat feet since servie. He is currently diagnosed with flat feet. Service connection for flat feet is warranted. Hypertension The Veteran denied a history of hypertension prior to active service. During service the Veteran was noted to have elevated blood pressure on some occasions. On August 1, 1978 his blood pressure was 118/66. A September 1979 medical questionnaire checked the box "yes" for high blood pressure although no blood pressure readings were taken or provided. On November 1980 his blood pressure was 122/80. On February 1981 his blood pressure was 150/76, however at the time the Veteran was being treated for having been involved in a fight earlier in the day and having a head trauma. On July 1981 his blood pressure was 120/80. In August 1981, a few days prior to exiting service, his blood pressure was 132/70. The July 2011 VA examiner found that at no time during active service was there any record of the Veteran being treated for hypertension. The examiner opined that the Veteran's hypertension is less likley as not caused by or a result of his active military service. The examiner stated that there is minimal evidence that the Veteran had hypertension while in service as only one blood pressure reading revealed systolic hypertension and this was after the Veteran had been involved in a fight and sustained head trauma. Although there was on notation on a Septmber 1979 questionnaire checked yes for high blood pressure although this was unsubstantiated by any blood pressure checks during active service. In short there was hypertension, or sustained elevated high blood pressure of 140/90 -dictionary, was not noted in service. Hypertension did not manifest during service. Hypertension has not been related to any injury or disease in service. There competent evidence of record is against a finding that hyis related to service. ORDER ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs