Citation Nr: 1313974	
Decision Date: 04/26/13    Archive Date: 05/03/13

DOCKET NO.  07-39 508	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for pes planus.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel


INTRODUCTION

The Veteran served on active duty from November 1989 to August 1993.

This matter is on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  Jurisdiction over the appeal is currently with the RO in Denver, Colorado.  

The Veteran testified before the undersigned Veterans Law Judge in April 2010.  A transcript of the hearing is of record.

An appeal on the issues of entitlement to service connection for shin splints and for a bilateral ankle disorder was also perfected by the Veteran.  However, in a September 2012 decision, he was granted service connection for the diagnosed disabilities that he claimed as bilateral ankle disabilities and shin splints.  That represents a full grant of the benefits sought on appeal, and those issues are no longer before the Board.  Shoen v. Brown, 6 Vet. App. 456 (1994).


FINDING OF FACT

Pes planus was not shown in service or for many years thereafter, and is not currently shown.  


CONCLUSION OF LAW

Pes planus was not incurred in or aggravated by service, is not related to service, and is not currently shown.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice requirements apply to all five elements of a service-connection claim, including 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.  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Neither the Veteran nor his representative has alleged prejudice with respect to notice, and none is found by the Board.  Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The duty to notify was satisfied by a letter sent to the Veteran in October 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date.  

Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).  

VA also has a duty to assist a veteran in the development of a claim.  That duty includes assisting him in the procurement of service medical records and other pertinent records, and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the Veteran's service medical records and VA outpatient treatment records.  The Veteran submitted treatment records from a private facility and his own statements in support of his claim.  

A VA examination with respect to the issue on appeal was obtained in March 2011.  38 C.F.R. § 3.159(c)(4) (2012).  When VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board finds that the VA examination obtained in this case is adequate because it is predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4) (2012).  

The Veteran was also afforded a hearing before the undersigned Veterans Law Judge in April 2010.  The Veteran was specifically asked about the nature and etiology of his pes planus, and he was advised that the record would be held open in order for him to submit additional evidence.  

Therefore, the Board finds that no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Generally, 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 between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995).

Where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has that condition, service connection can be granted for that chronic disability.  The evidence must be medical unless it relates to a condition where lay observation is competent.  38 C.F.R. § 3.303(b) (2012).

If chronicity is not applicable, service connection may still be established if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology.  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 v. Gober, 10 Vet. App. 488 (1997).  

However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be chronic under 38 C.F.R. § 3.309(a).  Pes planus is not considered a chronic disease under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability.  38 C.F.R. § 3.303(a) (2012).  

Service connection may only be granted for a current disability.  When a claimed condition is not shown, there may be no grant of service connection.  Congress specifically limits entitlement for service-connected disability to cases where the disease or injury has resulted in a disability.  38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).

VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

The service medical records do not show complaints of, treatment for, or any diagnosis related to pes planus while in service.  While there were complaints of ankle and calf pain on occasion, those were symptoms that are related to other disabilities, which are already service-connected.  Significantly, the Veteran's physical examination for Army Airborne School in September 1991 did not document any complaints of or observed symptoms related to pes planus, and there was no treatment since that time to suggest that it was subsequently shown.  Therefore, the Board finds that pes planus was not shown during active duty.

The post-service treatment records do not indicate that pes planus is currently diagnosed or present.  Specifically, the Board places significant persuasive weight on the opinions of a VA examiner who evaluated the Veteran's symptoms in March 2011.  At that time, the Veteran stated that he had previously used canes to ambulate, but was able to stand for eight hours at a time.  Upon examination, the Veteran exhibited a slightly stiff gait, but had good foot clearance with no imbalance.  After specifically examining the Veteran's feet in both weight bearing and non-weight bearing positions, the examiner diagnosed a bilateral calcaneal and genu varus.  Notably, the examiner specifically noted that pes planus was not currently observed, nor was there a diagnosis of pes planus in the Veteran's treatment records.  The Veteran admitted that he has never been told by a physician that he had pes planus.

The Board finds that the examination was adequate for evaluation purposes.  Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination.  There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that the examiner misstated any relevant fact.

In view of that evidence, the Board concludes that pes planus is not clinically shown.  Moreover, the mere assertion of symptoms alone cannot be compensable without an in-service disease or injury to which any asserted symptoms can be connected by competent evidence.  Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001).

The Board has also considered the statements made by the Veteran relating his hearing loss to his active service.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

However, the Veteran is not competent to provide testimony regarding the etiology of pes planus.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's pes planus are found to lack competency.  To the extent that the Veteran claims to have pes planus, and to the extent that pes planus is identifiable by observable symptomatology, the Board finds that any such contention is outweighed by the objective medical findings of the March 2011 examiner who found that the Veteran did not have pes planus.

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection.  Therefore, the claim is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for pes planus is denied.



______________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs