Citation Nr: 1312984 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 07-18 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for disease of the right ear, to include otitis media and Eustachian tube dysfunction. 2. 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 K. Hudson, Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from December 21, 1983, to January 16, 1984. Subsequently, he joined the Marine Corps Reserve, and had an extended period of active duty for training (ACDUTRA) from December 1987 to June 1988. He was on active duty for the period from January 2003 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of March 2006. He appeared at an RO Decision Review Officer (DRO) hearing in April 2009. In February 2011, the Board remanded the issue of service connection for bilateral pes planus for additional development. At the same time, the Board, in pertinent part, denied service connection for otitis media. The Veteran appealed that issue to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR), to the Court, the parties (the Veteran and the VA Secretary) requested that the Board decision be vacated and remanded; a November 2011 Court order granted the joint motion. In response, in August 2012, the Board remanded that issue, recharacterized to explicitly include Eustachian tube dysfunction. In addition, the issue of entitlement to service connection for pes planus was remanded at that time. Both issues have now been returned to the Board for appellate consideration. The Board has limited the issue concerning ear disease to the right ear because, while the stated issue has been nonspecific, the Veteran's claim and testimony have referred only to the right ear, as have the narrative statements in the adjudications of the claim throughout the appeal period. Although the Veteran has been noted to have an atrophied left tympanic membrane, no active left ear disease has been shown or claimed. On a VA examination in January 2010, the examiner stated that the Veteran had had a left ear tube inserted in May 2004. However, a left ear tube was not present at that time, and there is no support for the examiner's notation, including in the treatment records referenced as the source of the information by the examiner, the Veteran's subsequent statements and testimony, the service treatment records, or in any other evidence of record. Thus, the Board finds the examiner's statement concerning an ear tube inserted in the left ear in May 2004 does not raise a claim for service connection. In the absence of a claim from the Veteran, or other evidence in support of a claim for ear disease concerning the left ear, the Board finds that the issue as adjudicated as been limited to the right ear, and therefore the appeal is limited to the right ear. FINDINGS OF FACT 1. Right ear disease, diagnosed as Eustachian tube dysfunction and otitis media, preexisted service, but increased in severity during service beyond the natural progress of the preexisting condition, ultimately necessitating myringotomy and tube placement during service. 2. Bilateral pes planus was shown on a May 1987 entrance examination, and did not increase in severity during active service or ACDUTRA. CONCLUSIONS OF LAW 1. Pre-existing right ear disease, diagnosed as Eustachian tube dysfunction and otitis media, status post myringotomy and tube placement, was aggravated during active wartime service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). 2. Pre-existing bilateral pes planus was not aggravated by active service or ACDUTRA. 38 U.S.C.A. §§ 101(22), (24), 106(d), 1110, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) Compliance Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In letters dated in August 2003, December 2004, and August 2012, the RO advised the claimant of the information necessary to substantiate the claim for service connection, and of his and VA's respective obligations for obtaining specified different types of evidence. He was told that the evidence must demonstrate a relationship between her current disability and an injury, disease or event in military service. He was advised of various types of lay, medical, and employment evidence that could substantiate his service connection claims. In a letter dated in March 2006, he was provided with information regarding ratings and effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the March 2006 and August 2012 correspondence was not sent until after the initial adjudication of the claims, it was followed by readjudication in an April 2007 statement of the case and a November 2012 supplemental statement of the case, respectively. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The VCAA notice requirements have been satisfied. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159. Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). In this case, VA obtained the Veteran's service treatment records and all of the identified and available post-service private and VA treatment records. Pursuant to the Board remand in February 2011, the Veteran was afforded a VA examination with an opinion as to whether the Veteran's pre-existing pes planus was aggravated by active duty in March 2011. In response to the Board remand in August 2012, the Veteran was also afforded a VA examination concerning his ear disease claim in September 2012. Although there were deficiencies in these examinations, as discussed in detail below in the analysis of the claims, the examinations, together with the remainder of the evidence of record, provide a sufficient basis for a decision as to the issues on appeal. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (remand terms must be complied with, unless an explanation is provided as why the terms will not be fulfilled). In this regard, any additional delay in adjudication at the Board level would not benefit the Veteran and would unnecessarily delay and burden agency resources. Sondel v. West, 13 Vet. App. 213 (1999). In addition, the Veteran was provided with VCAA notice in August 2012, and asked to identify any private treatment records; he did not respond to this request. Outstanding VA treatments were obtained as well. Thus, there has been substantial compliance with the prior remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the Veteran is entitled to substantial compliance with the Board's remand directives). Accordingly, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the Veteran 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. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis The Veteran has three periods of verified service. The first was active duty from December 21, 1983, to January 16, 1984, in the Marine Corps. According to a record dated January 9, 1984, the Veteran was noted to be having problems adjusting to the Marine Corps, and an administrative separation was recommended. The Veteran himself indicates that his early separation was because of a dispute about his enlistment contract. Later, the Veteran joined the Marine Corps Reserve, and his second period of service was from December 15, 1987, to June 8, 1988. This was identified as active duty for training (ACDUTRA) on the DD Form 214. The Veteran was called onto active duty in support of Operation Enduring Freedom in January 2003. That period of service extended from January 14, 2003, to August 13, 2004. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA). 38 U.S.C.A. §§ 101(22), 106(d), 1110, 1131; 38 C.F.R. § 3.6(c), 3.303. To establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran is presumed to be in sound condition when entering into military service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto, and that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). The presumption of soundness does not apply, however, in cases where an entrance examination was not performed prior to the period of service on which the claim was based. Smith v. Shinseki, 24 Vet. App. 40 (2010); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Here, there is no record of an entrance examination for the period of active duty from January 2003 to August 2004; although this has previously been assumed to be missing, there is no indication in the claims file that he was provided an entrance examination at the time he entered onto active duty in January 2003. The Veteran did not enlist in the military at that time; instead, he was activated from the Reserves onto active duty, and he had undergone periodic medical examinations in the course of his service the Reserves. Also, he was not deployed overseas; indeed, it appears that he did not even have to leave his home area except for medical treatment. In such situations, an entrance examination is not always performed. In this case, the Veteran has not stated that an entrance examination was performed, nor is there any other indication, such as a gap in the records during an appropriate time period, that such an examination was conducted. There is a notation in December 2002 that the health record had been reviewed, and he was seen for treatment in January 2003. No reference was made at that time or later to an entrance examination. The period of his active duty was extended considerably beyond the initial anticipation, due to health concerns not at issue in this decision. The presumption of soundness does not apply for the period of service from January 2003 to August 2004. The benefit of the doubt standard applies. The claimant must show that there is an approximate balance of positive and negative evidence to prevail as to this matter. Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Aggravation of a pre-existing disability by service is presumed where there is an increase in disability during service, unless there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). 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 Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). A. Right Ear Disease At the outset, the Board notes that service connection is already in effect for hearing loss of the right ear; this issue is limited to ear disease, including Eustachian tube dysfunction and otitis media. Service treatment records prior to the Veteran's period of active duty beginning in January 2003 do not show any complaints or abnormal findings pertaining to the ears, and the analysis concerning this issue is limited to the Veteran's period of active duty from January 2003 to August 2004. The first matter that must be addressed is whether a chronic ear disease pre-existed service, based on a preponderance of the evidence, as discussed above. See Crowe; Smith, supra. The Veteran entered onto active duty on January 14, 2003, and was first seen with complaints concerning his right ear on January 23, 2003. At that time, he complained of a right ear ache, and he said it had been "plugged" for the "last week." On examination, the left tympanic membrane and canal were normal. The right tympanic membrane had a bullous formation, bright red, dull to light reflex, diagnosed as bullous myringitis, right. He was also found to have sinusitis. On January 29, 2003, he was seen for follow-up. He complained that his right ear pain was worse since using ear drop medication, and he stated that he could not hear out of the right ear. At this time, a more detailed history was obtained. He reported an injury to the right ear several years earlier, and said he had off and on hearing problems. He said he had seen a private doctor 5-6 weeks ago, at which time the ear had been okay, but it was thought he had Eustachian tube dysfunction. After examination of the ear, the assessment was otitis media with questionable perforated tympanic membrane/hearing loss. The next day, he was evaluated by a private otolaryngologist, M. Nenow, M.D. The Veteran reported trauma to the right ear on two occasions when he was younger, including a blow to the ear when kick-boxing at the age of 16, as well as a freak accident with a Q-tip 8 years ago. The hearing loss apparently resolved on each of those occasions but resumed "last week" when he also had an upper respiratory infection. This time, he had right serous otitis media, and atrophic TMs bilaterally. There is some conflict in the evidence regarding whether the onset of this ear disease was shortly before or after his entrance onto active duty. The Veteran himself recollects that his symptoms began in February 2003, but the evidence demonstrates that they were shown much closer to his actual entrance into service. On a VA examination for ear diseases in January 2010, the examiner reported the history of the Veteran's right ear problems beginning 5-6 weeks earlier which was noted in January 2003, as well as the history of right ear injury from a Q-tip 8 years earlier with on/off hearing problems. The examiner noted that Dr. Nenow's records showed a history of a right ear ventilation tube placed in June 2003 and bilateral tubes placed around May 2004. (As noted in the INTRODUCTION above, this latter statement of bilateral tubes placed in about May 2004 is in error.) On examination, the right ear drum showed a retained, patent and functional ventilation tube in good position in the right ear drum. The examiner stated that right otitis media was less likely as not caused by or a result of in-service illness. The examiner's rationale was that it was the specific chronology of the Veteran's ear disease as documented in the medical record, combined with his expertise and experience as related to the pathogenesis and clinical course of chronic ear disease. Another VA examination of the ears was obtained in September 2012. That examiner noted that the Veteran had had a few bouts of ear infections while in service. Prior to entering service he had ear pain that was likely due to untreated Eustachian tube dysfunction. On examination, he had serous discharge and active suppuration. Tympanic membranes were normal. There was a tube in the right ear. The examiner stated that the Veteran had Eustachian tube dysfunction which was longstanding and prior to entry into service. It was less likely as not caused by multiple infections. The examiner's rationale was that "Eustachian tube dysfunction is not something you can get while in service." It was due to anatomy or allergies that lead to ear disease. Neither of these examinations provides a satisfactory rationale for the conclusion that the Veteran's right ear disease pre-existed service. Nevertheless, they are the only medical opinions which directly address the question of pre-existence. Moreover, the Veteran provided a history in January 2003 of off and on problems for several years, and that he had been seen by a physician for his ear trouble 3 to 4 weeks prior to service, with Eustachian tube dysfunction suspected at that time. The Veteran has not, in fact, expressly denied having ear problems prior to service, but states that he did not have ear problems which were "100 percent noticeable" prior to service. Based on these factors, the Board finds that the weight of the evidence establishes that the Veteran's right ear disease pre-existed service. Concerning the question of service aggravation, neither of the VA opinions addressed this matter. However, the Board finds that the evidence currently of record is not sufficient to rebut the presumption of aggravation, and a decision can be reached without an additional examination. In this regard, there is ample evidence that the Veteran's ear disease increased in severity during service, and there is no evidence that it was due to natural progress. Evidence of an increase in severity includes, first, when seen in January 2003 by Dr. Nenow, options for treatment included "if nothing else works, myringotomy, probably without tube placement." This suggests that the normal course of the disease would not be expected to include tube placement. When seen in February 2003, the assessment was Eustachian tube dysfunction, improving, and atrophic TMs bilaterally. The doctor observed that this represented the baseline for him, and no specific treatment would be recommended for it unless he continued having other problems. Dr. Nenow wrote that "the Eustachian tube function will probably completely normalize on its own." If he continued to have problems ventilating in the right ear in 2 months time, myringotomy with or without tube placement may be an option. Again, this indicates that the normal progress of the disease would be for the Eustachian tube function to normalize. Instead, when seen for follow-up in May 2003, the Veteran still had the same symptoms, and his right ear was worse. The diagnosis was chronic serous omitis media on the right, and conductive hearing loss. He underwent myringotomy of the right ear, with placement of pressure equalization tube, in June 2003. Since then, this tube has remained in place. Nevertheless, he has continued to experience problems on occasion, such as in December 2003, when he reported that the right ear had been plugging up and popping, and he had a small amount of drainage. After his discharge from service, he was seen again by Dr. Nenow in October 2004, at which time he was reportedly doing well, with just a small amount of yellow on Q-tip. The tube was in place, and functioning. Again, the diagnosis was chronic otitis media on the right, status post myringotomy. VA treatment records show that in July 2011, the Veteran was seen in an audiology clinic. He reported some pain, discharge, decreased hearing, and significant fullness/pressure in the right ear for 3-4 weeks. He said he had begun having problems after water leaked around an earplug while swimming. He had a history of chronic ear problems, primarily in the right ear, for which he has had tubes in the past. He first sought treatment from his civilian doctor 3 weeks ago, before coming to the VA, and was on his second round of oral antibiotics with little improvement. Otoscopy showed a very red canal and eardrum in the right ear. The right ear canal has yellowish debris that appeared to be lying against the eardrum, which also has a wet appearance. There was diminished hearing in the right ear. He was referred for an ENT consult. The ENT evaluation, in August 2011, noted that the Veteran had had a right ear T-tube for years. Recent otorrhea of the right ear was now resolved. He was to be treated with Ciprodex for 3 weeks. In September 2011, he was seen for follow-up. He had a long term T-tube in the right ear, which was now "open," with subjective improved hearing. In October 2011, the Veteran was seen by audiology for a hearing re-test following treatment of his right ear. Current results showed a significant improvement in hearing thresholds with resolution of a large portion of the conductive component in the right ear, compared with the July 2011 results. The VA examination of the ears in September 2012 disclosed serous discharge and active suppuration. The right tube was still in place, and the diagnosis was Eustachian tube dysfunction. Thus, the Veteran's right ear ventilation tube has remained in place since service, but he has continued to experience occasional exacerbations of otitis media and Eustachian tube dysfunction, including on the most recent VA examination. While the symptoms in service may have started out as an exacerbation, the condition remained active for the next 5 months, and advanced to the point where he needed a myringotomy with tube placement, an outcome initially thought to be unlikely. Thus, the Board finds that the evidence establishes that the right ear disability increased in severity in service, and the presumption of aggravation applies. Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). In this case, neither VA examiner provided an opinion as to whether the pre-existing ear disease was aggravated in service. Despite the specific request for such a determination in the August 2012 Board remand, as well as in the August 2012 examination request sent to the examiner, the RO accepted the deficient examination report, and continued to deny the claim, without addressing the question of aggravation. Where there is an increase in severity of a pre-existing disease during service, VA must establish, by clear and unmistakable evidence, that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231 (2012). The burden is not met by finding "that the record contains insufficient evidence of aggravation." Id., at 235. Here, VA has not presented any evidence that the increase in service was due to natural progress, let alone clear and unmistakable evidence. As a final consideration, a tube was inserted during service to ameliorate the Veteran's right ear condition. 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. 38 C.F.R. § 3.306(b)(1). However, in this case, the otitis media and Eustachian tube dysfunction increased in severity during service, before the tubes were inserted. Therefore, in this case, the condition was otherwise aggravated by service prior to the surgical treatment. In sum, while Eustachian tube dysfunction of the right ear existed prior to service, it increased in severity in service, necessitating the placement of ventilation tubes. There is evidence indicating that the increase in severity was beyond what the treating physician initially anticipated, and there is no evidence that the increase in severity reflected natural progress. Therefore, VA has not rebutted the presumption of aggravation, and service connection for Eustachian tube dysfunction and otitis media of the right ear, status post myringotomy with tube placement, is warranted. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). B. Pes Planus At his DRO hearing in April 2009, the Veteran testified that pes planus had been noted on his entrance examination in 1983. He said that it was during the next period of service (from December 1987 to June 1988) that he began experiencing continuous problems, resulting from ill-fitting boots. He also said that the VA in Marion had told him that his flat feet had gotten worse, and he had been provided with orthotics. No service treatment records pertaining to the first period of service from December 1983 to January 1984 are of record. On his examination for enlistment in the Marine Corps Reserve, performed in May 1987, he was observed to have moderate bilateral pes planus, asymptomatic. During that period of service, service treatment records do not show any treatment for pes planus, although he was treated for a significant period of time for tinea pedis. The separation examination in May 1988 did not contain any pertinent complaints or abnormal findings. A periodic examination in June 2001 did not reveal any complaints or abnormal findings pertaining to the feet. During the Veteran's period of active duty from January 2003 to August 2004, he was treated for foot problems. In May 2003, it was noted that the Veteran had been having some difficulty with foot arches. He was referred to an ankle and foot clinic, which found bilateral hammertoes. In July 2003, he underwent surgery for left foot 5th hammertoe. In September 2003, his feet were evaluated for pending surgery for hammertoe of the right foot. In addition to the post-surgical residuals of a left foot hammertoe, and a hammertoe of the 5th toe of the right foot, he was also noted to have flattening of the medial arches bilaterally with weightbearing stance, and the assessment included pes planus, bilateral. He underwent surgery to correct the right foot hammertoe in October 2003. In December 2003, when seen for follow-up, it was noted that he was now able to wear military boots. At a January 2005 VA general medical examination, there were no complaints or findings regarding pes planus. A December 2008 VA examination noted the presence of bilateral pes planus, with good alignment of the Achilles tendon before and after weight-bearing. The Veteran had hammertoes of the firth digit of both feet, status post surgical correction, for which service connection is in effect. He had pain in the metatarsophalangeal (MTP) joint on his left foot. It was noted that he had undergone a non-service-connected surgery with arthroplasty of this joint. VA treatment records from Marion were obtained, and show that in February 2009, the Veteran was referred to a podiatry clinic for bilateral pes planus. The podiatry consult, in March 2009, noted that his orthotics were old. Otherwise, the findings related to post-surgical hammertoe residuals, as well as pain in the 2nd and 3rd metatarsal heads, stated to be secondary to reading meters on his job. VA treatment records dated in January and March 2010 note that the Veteran was followed by a private podiatrist. He was provided with new orthotics by VA in March 2011. There was no indication in any of these that the Veteran's pes planus had worsened. On a VA examination in March 2011, the Veteran was noted to have unusual shoe wear pattern. Concerning pes planus, the examiner reported that it was less likely than not that the Veteran's pes planus was aggravated by service. The examiner noted that the Veteran said that he had pes planus and bad foot pain during boot camp in 1984, which there was no reason to doubt, but that in retrospect the problem was due to too small and narrow boots which later caused hammertoes of the 5th digit of each foot, which resolved with surgery, orthotic inserts, and wider shoes. On examination, he had mild pes planus, slightly worse on the left. He was able to walk on his heels and toes and his gait was normal. There was no misalignment, palpable tenderness or rigidity. The X-rays were unchanged. In light of these findings (e.g., minimal degree of pes planus), it was less likely than not that the Veteran's pes planus was permanently aggravated by his military service. In this case, pes planus was noted on the Veteran's entrance examination in 1987, and the Veteran does not dispute that pes planus pre-existed service. In evaluating whether there was an increase in severity of pes planus during service, as noted above, during the period of ACUDTRA which extended to June 1988, service treatment records do not show any treatment for pes planus, although he was treated for a significant period of time for tinea pedis. The Board finds these records more probative than the Veteran's recollections years later. The separation examination in May 1988 did not contain any pertinent complaints or abnormal findings. A periodic examination in June 2001 did not reveal any complaints or abnormal findings pertaining to the feet. Service treatment records show that the Veteran complained of trouble with his arches in May 2003, but the evaluation resulted in the diagnosis of bilateral hammertoes, which were subsequently surgically corrected (and for which service connection is in effect). The Veteran stated that he believed pes planus was aggravated by ill-fitting boots, but the examiner attributed the ill-fitting boots to the onset of hammertoes. Moreover, a temporary flare-up or recurrence of symptoms during service, of a preservice condition, does not establish an increase in disability as required for a finding of service aggravation; such requires an increase in the level of the underlying condition. Davis v. Principi, 276 F.3d 1341 (Fed.Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In this case, the symptoms were attributed to another condition, hammertoes. In addition, although the examiner did not state whether the pes planus was "clearly and unmistakably" aggravated by service, there is no evidence that the pes planus increased in severity during service. The examiner said that X-rays were unchanged, and findings were essentially normal except for mild pes planus. In contrast, the pes planus in 1987 was estimated to be moderate at that time. Thus, in the context of the findings, the examiner's conclusion that it was less likely than not that the Veteran's pes planus was permanently aggravated by his military service was, in actual fact, a finding that the condition did not increase in severity during service. In this regard, the absence of any increase in severity during service was the sole rationale for the examiner's conclusion. 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 language of 38 U.S.C.A. § 1153 reflects that the presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service, and the determination of whether a preexisting disability was aggravated by service is a question of fact. Doran v. Brown, 6 Vet. App. 283, 286 (1994). Moreover, it is the Board which is ultimately responsible for determining the credibility and probative weight of the evidence, and not the examiner. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). For the reasons discussed above, the weight of the evidence establishes that the Veteran's pre-existing pes planus did not increase in severity during service. Therefore, the presumption of aggravation does not apply, and the Board finds that preponderance of the evidence establishes that the pre-existing pes planus was not aggravated by service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for right ear disease, diagnosed as Eustachian tube dysfunction and otitis media, status post myringotomy and tube placement, is granted. Service connection for bilateral pes planus is denied. ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs