Citation Nr: 1318470 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 07-22 114 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from March 1956 to April 1958. This matter initially comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision of the RO. In December 2008, the Board remanded the case to RO in order to afford the Veteran the opportunity to present testimony at a personal hearing before a Veterans Law Judge. The Veteran, however, did not appear for his hearing. Therefore, his request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). The Board remanded the case to the RO for further development in September 2011. FINDINGS OF FACT 1. The pre-existing pes planus is not shown by clear and unmistakable evidence not to have been aggravated by active service and is shown as likely as not to have caused the development of currently demonstrated degenerative changes. 2. None of the other current foot conditions including Charcot joint, peripheral vascular disease leg/foot, peripheral neuropathy, onychomycosis and gout is shown to have had its clinical onset until many years after service or otherwise to be due to an event or incident of the Veteran's period of active service. CONCLUSIONS OF LAW 1. To the extent that the presumption of soundness is not rebutted by clear and unmistakable evidence, the Veteran's disability manifested by pes planus is due to disease or injury that was incurred in active service; his disability manifested by degenerative changes is proximately due to or the result of the now service-connected pes planus. 38 U.S.C.A. §§ 1111, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.304, 3.306, 3.310 (2012). 2. The Veteran's bilateral foot disability manifested by Charcot joint, peripheral vascular disease of the leg and foot, peripheral neuropathy, onychomycosis or gout is not due to disease or injury that was incurred in or aggravated by active service; nor may any be presumed to have incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in July 2005, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was provided information regarding the assignment of disability ratings and effective dates in April 2006. The appeal was most recently readjudicated in the June 2012 Supplemental Statement of the Case. The Board notes that the Veteran's service treatment records have been deemed to be missing. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). ANALYSIS Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for some chronic diseases, including arthritis, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Significantly, the Board notes that the Veteran's service treatment records are not available for review and are assumed to be "fire-related." As such, the presumption of soundness is not for application in this case. In considering the effect of section 1111 on claims of service-connected disability, VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153). The cited statute provides that aggravation 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. In this regard, L.D. reported in November 2006 statement that he was stationed with the Veteran for a period of 18 months during service. He stated that he did not know how the Veteran got accepted into the Army given the shape his feet. He reported that the Veteran's feet worsened during the course of service. In July 2007, L. S. related that she had known the Veteran since 1957 and always was aware that he had foot problems and flat feet while in service. In an October 2007 examination, the Veteran reported having a foot disability that existed long before he entered service. In an October 2011 VA examination, the Veteran again provided a history of foot pain and flat feet prior to entry into service. In this regard, the Veteran was examined by VA in October 2011. The VA examiner stated that the Veteran provided a history of foot pain and flat feet prior to his entry into service. The examiner found that it was plausible to assume the Veteran had pes planus at entry into service. He added that, given the fact that the Veteran was not barred from service for medical reasons, it was plausible that he might have had flexible pes planus that was mild, non-rigid pes planus. The examiner stated that, while the Veteran might have had temporary exacerbations of his flat foot condition during service manifested by occasions of pain, such did not mean there was necessarily permanent aggravation of his condition. The Veteran was noted to have continued in service for two years and then to have gone on to work until 2002 often in jobs requiring standing. This included his 10 years working as a welder, which might have aggravated the bilateral foot condition. The VA examiner stated that it had been 53 intervening years since the Veteran left service. He opined that there was no objective evidence that the Veteran's pes planus was clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event or illness. To the extent that the Veteran now asserts that his bilateral foot disability was aggravated by service and presents lay statements from L.D and L.S to support his claim, the Board acknowledges that this evidence does serve to establish that the Veteran did experience increased foot manifestations while on active duty. The Veteran and the other observers in this regard are competent to observe his symptomatology consisting of foot pain and discomfort during and after service. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As this information represents the only evidence pertaining to the claimed foot disability during service, it carries significant probative weight. First, in viewing the evidence as a whole, the Board finds that the Veteran likely did enter his period of military service with pes planus. Next, as indicated, the lay assertions are found to be credible for the purpose of showing that the Veteran's bilateral pes planus underwent chronic worsening that as likely as not was the product of a process of aggravation that began with the strenuous nature of his duties during service. To the extent that the evidence is not clear and unmistakable in showing that the pre-existing pes planus was not aggravated by service, the presumption of soundness in this case is not rebutted. Accordingly, on this record, the current pes planus is found to be due to disease or injury that was incurred in active. The Board also acknowledges that the Veteran has been diagnosed with foot disabilities other than pes planus. In the October 2011 VA examination, the Veteran was diagnosed with Charcot joint (foot), peripheral vascular disease leg/foot, peripheral neuropathy, onychomycosis and gout. The VA examiner stated the Veteran had several conditions impacting his feet that had been diagnosed after the Veteran's service. He related that Charcot foot was progressive destruction of the bone and was seen now in patients with diabetes mellitus and added that, given the Veteran's comorbid diagnoses of diabetes mellitus, peripheral vascular disease and peripheral neuropathy all of which had their onset after the service, it was less likely than not that any of these conditions were related to any illness, injury or event occurring during the Veteran's service. The examiner further found that onychomycosis was less likely as not related to any illness, injury or event occurring during service as there are no records from service or history from the Veteran of a problem with toenail fungus during service. The examiner also noted the osteoarthritis of the feet was first documented in the record in 2003. He added that the osteoarthritis might represent early manifestations of the Veteran's Charcot joint disorder or might be from wear and tear possibly worsened by years of pes planus. The examiner stated it was impossible to know with any degree of certainty which scenario was more accurate or, if what occurred is, rather, a combination of the scenarios. Accordingly, to the extent that any changes are not clearly due to the identified Charcot joint or other these other foot conditions, the current degenerative changes are found as likely as not to be due to the now service-connected pes planus. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102 (2011). ORDER Service connection for bilateral pes planus with related degenerative changes is granted. Service connection for other foot disability including that due to Charcot joint, peripheral vascular disease of the leg and foot, peripheral neuropathy, onychomycosis and gout is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs