Citation Nr: 1306509 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 09-41 973A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to service connection for bilateral pes planus (flat feet). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from June 1967 until September 1976. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2007 rating decisions in which the RO, inter alia, denied service connection for bilateral pes planus. In April 2008, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in September 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2009. In October 2012, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In connection with his hearing, the Veteran submitted additional evidence and argument in support of his claim on appeal. This evidence was accompanied by a signed waiver of initial RO consideration. See 38 C.F.R. §§ 20.800, 20.1304 (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals that some of the documents in the Virtual VA paperless claims file, i.e., VA treatment records dated from September 2010 to May 2012, are relevant to the issue on appeal and are not duplicative of the evidence in the paper claims file. However, such evidence was considered by the RO in its preparation of the July 2012 supplemental statement of the case (SSOC). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. As pes planus was noted at service entrance, the disability it is deemed to have pre-existed service. 3. There is no persuasive evidence that pre-existing pes planus underwent an increase in severity during service, or that even suggests that the disability was permanently worsened beyond natural progression during or as a result of service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus are not met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1) . The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 have been revised, in part. See 73 Fed. Reg. 23,353 -23, 356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a June 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for bilateral pes planus, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. That letter also informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). The June 2006 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The April 2007 rating decision reflects the initial adjudication of the claim after issuance of the June 2006 letter. Therefore, the June 2006 letter meets the VCAA's content and timing requirements. . The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of in- and post-service treatment records. Also of record and considered in connection with the appeal is the transcript of the October 2012 Board hearing, along with various statements by the Veteran, and by his sister and representative, on his behalf. The Board finds that no additional RO action to further develop the record in connection with the claim, prior to appellate consideration, is required. The Board acknowledges that the Veteran had not undergone a VA examination, nor has the RO otherwise obtained a medical opinion in connection with this claim for service connection. However, as discussed in more detail below, given the facts of this case, no such examination or opinion is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through notice of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Every person employed in the active military, naval, or air service 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. After a full review of the record, including the medical evidence and statements made by the Veteran and on his behalf, and considering such evidence in light of the above-noted legal authority, the Board finds that service connection for bilateral pes planus is not warranted. The Veteran's service treatment records (STRs) include the May 1967 enlistment examination report which notes that the Veteran had mild, bilateral pes planus-although the Veteran denied having any foot trouble at that time). A July 5, 1967 record reflects the Veteran's complaint of trouble with his left knee and report that he had flat feet. A July 6, 1967 X-ray report revealed no evidence of bone or joint abnormality of the feet. There are no follow-up records regarding any foot problems during service. In the report of September 1976 separation examination, the examiner noted that the Veteran had severe athlete's foot; at that time, the Veteran again denied having foot trouble. The record does not document any complaints, findings or treatment for bilateral pes planus for decades following the September 1976 separation from service. On VA examination in April 1977, the Veteran only complained of leg pain or aches and occasional skin rash. He reported a history of possible diabetes; a rash of the feet, groin, neck, chest and back; and residual injury of the left knee. On examination of the musculoskeletal system, the examiner did not note any abnormalities of the lower extremities involving the feet (the examiner had also examined the feet in regards to the skin rash claim). VA medical records include records of treatment for various medical disorders from 1992 to the present. In a January 3, 2008 record, the medical provider noted that the Veteran complained of pain in his flat feet and requested a podiatry consult. The examiner noted that although the Veteran had worn orthotics, he had never been seen at the VA medical center for flat feet. During a January 31, 2008 VA podiatry consultation, the Veteran complained of increasing foot pain. He reported that he had tried over-the-counter inserts with no relief, and that their use made the pain worse. He also reported that custom-made shoes he obtained at a fair had not helped. The Veteran reported experiencing pain in his feet his whole life, which was worse during military training and that it was worse for the past several years. The examiner assessed bilateral pes planus. Subsequent VA medical records include records of occasional treatment for pes planus. As for pertinent lay evidence, in a September 2006 statement, the Veteran reported that he has had flat feet since birth. He indicated that, although he pointed out his feet upon entering the Army he had been told that he would be fine and that his flat feet had not been entered on his records. In an undated letter, the Veteran's sister N.H., reported that the Veteran's flat feet had been bad since he was a child and that he could not keep up with others in physical activities. She reported that his foot arches would touch the ground, that all his brothers also had flat feet, and that in the past his mother was too poor to afford supportive shoes. During his October 2012 Board hearing, the Veteran reported that he had been issued regular boots in the Army, without orthotics, and that he experienced pain while performing his duties. He claimed that his flat feet had worsened during service, but also reported that he did not seek treatment during that time. He also reported receiving his first orthotics at a 1984 fair and that he has continued to buy orthotics since then. Initially, the Board notes that, as mild, bilateral pes planus was noted at service entry, the presumption of soundness is not for application and the Veteran's pes planus is deemed to have pre-existed his service. This finding is consistent with the Veteran's and his sister's assertions that the Veteran has suffered from flat feet all of his life. Having disclosed the presence of a pre-existing disability, the Board must determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Aggravation is presumed under 38 U.S.C.A. § 1153 where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. However, 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. 38 C.F.R. § 3.306(b). The underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. See Hunt v. Derwinski, 1 Vet. App. 292 (1991). In this case, the Veteran is not entitled to a presumption of aggravation because there is no credible evidence that his pre-existing pes planus underwent any increase in severity during service. As indicated, the Veteran only made one report of having bilateral pes planus in service, in 1967 (in conjunction with a complaint of knee pain). There is no indication that he then had any complaint specific to pes planus, and the Veteran had since denied that he sought treatment for foot pain during service. He subsequently had an X-ray of his feet, which did not reveal any bone or joint abnormality. On service separation examination in 1976, there was not even a medical finding of bilateral pes planus, although the examiner noted that he had a foot rash, and, in the report of medical history completed by the Veteran in conjunction with that examination, the Veteran denied that he had any foot problems. . The Board is aware that, in connection with the current claim (for example, during the October 2012 hearing), the Veteran has reported that he experienced symptoms of pes planus-notably, pain-during service. As a layperson, the Veteran is certainly competent to report his own symptoms, or other matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Here, however, such current assertions are not consistent with the contemporaneous evidence noted above, and thus, do not appear to be credible. The documented lay and medical evidence during service are considered more reliable than the unsupported assertions of events now several decades past, made in connection with a claim for monetary benefits from the government. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). However, even if the Board was to accept, as credible, the Veteran's current assertions that he experienced foot pain during service, this, alone, would not support a finding that the disability underwent an increase in severity during (or even, as a result of) service. As noted, the underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. See Hunt, supra. In this case, as noted, the Veteran did not seek treatment for foot pain during service, or, indeed, for many years after service, nor did he seek compensation from VA for any alleged in-service aggravation of his pes planus for many years after service. Following service discharge, the Veteran underwent VA examination in April 1977 in connection with his foot rash; however, the report of that examination reflects no complaints or finding pertinent to pes planus. The Veteran has cited the fact that that he now uses orthotics as indicative of worsening of his pes planus. Even if so, however, the fact remains that, by the Veteran's own admission, he did not begin using orthotics until 1984, approximately 8 years after his service discharge. Hence, even if the use of orthotics is deemed suggestive of worsening (as opposed to merely representing a form of treatment not previously available to the Veteran, as comments made by him and sister suggest), there is no competent indication whatsoever, that any such worsening occurred during, or is attributable to the Veteran's military service. The Board also finds it noteworthy that, after service, the Veteran filed numerous additional claims with VA over the years, but did not file a claim for service connection for bilateral pes planus until 2006, decades following his discharge from service. Furthermore, the record also includes no medical comment or opinion even suggesting that the Veteran's pre-existing pes planus was permanently worsened-much less, permanently worsened beyond natural progression-during or as a result of his military service. The current record includes no such comment or opinion, and, despite being given many opportunities to do so, neither the Veteran nor his representative has presented or even identified any such comment or opinion. Moreover, on these facts, VA is not required to arrange for the Veteran to undergo examination or to otherwise obtain a medical opinion in this regard. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service-or, as appropriate, service-connected disability-but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this appeal, the claim does not meet the requirements to obtain a VA medical opinion. Aside from the Veteran's own current assertions-which, as indicated above, are either inconsistent with contemporaneous documentation during service or completely unsupported by any competent medical evidence or opinion-there there is no evidence whatsoever to support a finding that pre-existing pes planus underwent an increase in severity during service, or that the disability was permanently worsened beyond natural progression during or as a result of service. As the current record does not reflect even a prima facie claim for service connection for the claimed disability, VA has no obligation to obtain any medical opinion commenting upon the etiology of the claimed disability. See 38 U.S.C.A. § 5103A(d) (West 2002); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003). See also Duenas v. Principi, 18 Vet. App. (2004) (per curium). As a final point, the Board emphasizes that the Veteran cannot establish the required elements of his claim on the basis of lay assertions, alone. As indicated above, the Board has considered and discussed the Veteran's and his sister's assertions concerning the nature and longevity of his pes planus, as well as the Veteran's assertions of the symptoms he experienced during service, and his perception that the disability had and has worsened; these are matters about which these individuals are competent to assert. However, to the extent that assertions by the Veteran and/or his representative are being advanced to actually establish aggravation-i.e., permanent worsening beyond natural progression-such attempt must fail. This matter is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without appropriate training and experience, neither is competent to render a persuasive opinion on the medical matter upon which these claims turn. Hence, the lay assertions in this regard have no probative value. See, e.g., Bostain v. West, 11 Vet. 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 opining on matters requiring medical knowledge'). For all of the foregoing reasons, claim for service connection for bilateral pes planus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as no competent, credible, and probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App, 49, 53-56 (1990). ORDER Service connection for bilateral pes planus (flat feet) is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs