Citation Nr: 1309118 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 09-10 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral pes planus. ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to November 1985, and from April 1987 to August 2007. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision by the St. Louis, Missouri Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO in pertinent part denied service connection for bilateral pes planus. In May 2012, the Board remanded the pes planus service connection claim to the RO via the VA Appeals Management Center (AMC). The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's physical claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran had bilateral pes planus when he was examined for entrance into his second period of active service. 2. The Veteran's bilateral pes planus increased in disability during his service. CONCLUSIONS OF LAW 1. The Veteran's bilateral pes planus existed before he entered his second period of active service. 38 U.S.C.A. §§ 1111, 1137, 5107 (West 2002); 38 C.F.R. § 3.304(b) (2012). 2. The Veteran's bilateral pes planus was aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 2002); 38 C.F.R. § 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In this case, the Board is granting herein the benefit sought on appeal, service connection for bilateral pes planus. Therefore, it is not necessary to discuss VA's duties to notify or assist the Veteran in substantiating that claim. In July 2007, the Veteran filed a claim for service connection for several disabilities, including fallen arches and left foot and ankle joint pain. In a February 2008 rating decision, the RO granted service connection for left foot degenerative joint disease, and denied service connection for bilateral pes planus, claimed as fallen arches. The Veteran essentially contends that he has bilateral pes planus that began during service or was aggravated during service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by service 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. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The Veteran had a medical examination in November 1986 for entrance into his second period of active duty. On the examination report, the examiner checked abnormal for the condition of the Veteran's feet, and wrote that the Veteran had mild pes planus with no symptoms. The Veteran's pes planus was noted in a service entrance examination. Thus, that disorder existed before his second period of active duty. For the Veteran's bilateral pes planus to be considered to have been aggravated in service, there must have been an increase in disability during service. On the November 1986 service entrance examination, the examiner reported that the Veteran had no symptoms from his pes planus. In a November 1986 medical history, the Veteran checked no for any history of foot trouble. In outpatient treatment in May 1993, the Veteran reported having had a bad twist of his right ankle. Right ankle x-rays showed soft tissue swelling and effusion, with no evidence of fracture. The Veteran sought treatment in August 1999 after he fell off of a roof. He reported that he fell fifteen feet and that he landed on his feet, hip, and right elbow. The examiner noted tenderness over both heels, worse in the right. X-rays showed no evidence of fracture of the right ankle or left foot. The examiner's assessment included bilateral heel and ankle contusion. The Veteran was seen in April 2006 following an inversion injury of his left ankle. He stated that he was first treated at a civilian hospital, where x-rays showed a nondisplaced fracture of the left fifth metatarsal. X-rays taken at a service facility did not show fracture. A service clinician observed moderate edema and ecchymosis inferior to the lateral malleolus and tenderness to palpation. The clinician's assessment was left foot and ankle sprain. In orthopedic treatment at a service facility in January 2007, the Veteran related the history of left foot and ankle injury in 2006. He reported having foot and ankle pain and stiffness that was worst in the morning. The treating clinician found swelling in left ankle and tenderness in the Veteran's left foot, and observed that the Veteran had bilateral pes planus. The clinician referred the Veteran to podiatry for custom orthotics, and prescribed medication for pain. On podiatry consultation later in January 2007, the clinician found evidence of left foot pain, and fitted the Veteran for custom molded orthotics. The Veteran had a VA medical examination in August 2007, just before his separation from service. He reported having been told in service that he had fallen arches, and having received custom shoe insert orthotics. He stated that after prolonged walking or standing he had stiffness in both feet and pain in his left foot. He indicated that wearing the orthotics helped some. The examiner found evidence of slight tenderness over the left foot first and second metatarsals, and no evidence of tenderness in the right foot. The left and right feet appeared unremarkable on x-rays. After service, in January 2008, the Veteran sought private treatment for pain in his left ankle and left midfoot. Left ankle MRI showed chronic sprain. In March 2008, the Veteran underwent arthroscopic surgery on the left ankle. On follow-up in May 2008, the Veteran had pain in his left forefoot. Treatment notes from October 2008 reflect continuation of that pain. On VA examination in October 2010, left and right foot x-rays were compared to August 2007 x-rays. The reviewing radiologist found a decrease in the plantar arch in each foot. In May 2012, the Board remanded the pes planus issue for the Veteran to receive a VA examination with review of the file and an opinion as to whether the Veteran's pes planus underwent a permanent increase during service. An examination was scheduled for July 2012, and the Veteran failed to report for the examination. As the Veteran did not report for the examination, the Board must consider the claim based on the available evidence. The Veteran's service medical records indicate that when he entered active duty in 1987 he had bilateral pes planus with no symptoms. Around the time of separation from service, in 2007, his bilateral pes planus was symptomatic, to the extent that a service clinician treated it with medication and orthotics. The medical evidence supports a finding that there was an increase in bilateral pes planus disability during service. There has not been a specific finding, and there is not clear and unmistakable evidence, that the increase in disability is due to the natural progress of the disease. The Board therefore presumes that the Veteran's bilateral pes planus was aggravated in service, and that the aggravation of that disability is service connected. ORDER Entitlement to service connection for bilateral pes planus is granted. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs