Citation Nr: 1320996 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 00-07 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1986 to March 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 1998 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing at the RO in New York, New York in September 2009. This transcript has been associated with the file. The Veteran was informed in May 2012 that the Veterans Law Judge who conducted his hearing was no longer employed at the Board and that he could have a new hearing before another Judge. He responded in June 2012 that he did not wish to have an additional hearing and the Board should proceed with his claim. The case was brought before the Board in June 2010 at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal. On return to the Board, it was determined that a medical expert opinion was needed from a health care professional in the Veterans Health Administration (VHA) of the Department of Veterans Affairs. The Board obtained the requested opinion in January 2012; an addendum from the same medical expert was received in April 2012. The Board determined that the expert opinion was necessary to address the complex medical questions raised by the appeal. 38 C.F.R. §20.901(a), (d). The Veteran was furnished a copy of the medical expert opinions received by the Board and was provided 60 days to submit a response. He responded in May 2012 indicating that he had no further argument or evidence to submit and would like to the Board to proceed immediately with adjudicating his appeal. Most recently in August 2012 the claim was again remanded to the AOJ for additional development, to include obtaining the Veteran's outstanding records from the Social Security Administration (SSA). These records have been obtained and associated with the claims file. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The issue of entitlement to a total disability rating based on individual unemployability (TDIU) was previously referred to the RO in the August 2012 Remand. However, this issue has not yet been adjudicated and is REFERRED to the RO for proper adjudication. FINDING OF FACT 1. Bilateral pes planus was noted on the Veteran's entrance examination. 2. The preponderance of the evidence fails to establish that the Veteran's preexisting bilateral pes planus worsened (increased in severity) during his active service. CONCLUSION OF LAW Bilateral pes planus pre-existed service was not aggravated by service. 38 U.S.C.A. §§ 1110, 1132, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements were met in this case by multiple letters sent to the Veteran. The Veteran was informed of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The Veteran was also advised how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the November 1998 rating decision, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, statement of the case, and supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Furthermore, the Veteran has not alleged that prejudice resulted from lack of proper VCAA notice, and therefore, the Board determines that none resulted. See Shinseki, supra. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's service treatment records, Social Security Administration (SSA) records, and identified VA treatment records are in the file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in most recently in November 2010 for his pes planus claim. A VHA opinion was solicited in January 2012, which was followed by an April 2012 addendum. The November 2010 opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The subsequent VHA opinion was obtained by an expert who reviewed the claims file in detail, to include the Veteran's lay history, and provided a detailed conclusion for the conclusions that were reached. The Board finds that the examination/opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A veteran is considered to be in sound health when examined, accepted, and enrolled for service - except as to defects, infirmities, or disorders noted at the time of his entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service, and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132 (West 2002). The implementing regulation expressly provides that the term 'noted' denotes '[o]nly such conditions as are recorded in examination reports,' and that '[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.' 38 C.F.R. § 3.304(b) (2012). The Veteran's medical examination report on entrance to service in October 1986 shows that he had first degree pes planus, asymptomatic. Accordingly, the presumption of soundness on induction as to pes planus does not apply. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b); see also Verdon v. Brown, 8 Vet. App. 529, 535 (1996) (noting that even though the veteran's bunions may have been asymptomatic at the time of induction, they were 'noted' on the induction medical examination and accompanying orthopedic examination report). There is a distinct difference in the statute that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that the condition was aggravated by service. Specifically, under these circumstances, the provisions of 38 U.S.C.A § 1153 (West 2002) and 38 C.F.R. § 3.306 (2012) apply, and the question becomes whether the pre-existing condition was aggravated during service. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. The appellant bears the burden of showing that his preexisting condition worsened in service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Once the veteran establishes worsening, the burden shifts to VA to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progression of the disease. Id. Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). In this case, as the Veteran's bilateral pes planus was noted on his October 1986 medical examination, there is a question as to whether the Veteran aggravated his pre-existing bilateral pes planus during service. Service treatment records reflect that the Veteran reported complaints regarding his feet during active duty. In August 1993, the Veteran was seen with complaints of right heel pain for three weeks. In October 1993, the Veteran was seen with complaints of a possible boil on the bottom of his right foot. Service treatment records, dated in December 1993 and January 1994, also reflect complaints of right heel pain after stepping on a rock. The December 1993 service treatment record reflects an assessment of '? bruised heel' and the Veteran was referred for further evaluation, completed in January 1994. A medical discharge examination report is, unfortunately, not of record. Following separation from service the Veteran was afforded multiple VA medical examinations. At his June 1998 VA examination the Veteran reported pain in his feet for many years and discomfort in standing and walking. There was no opinion as to whether this was related to service or his pes planus. At a June 2003 VA examination the Veteran reported using a straight cane at times and bilateral shoe inserts. The Veteran was diagnosed with bilateral pes planus. The examiner reviewed the service treatment records and opined it was at least as likely as not that the Veteran's bilateral pes planus was related to service. In November 2010 the Veteran was afforded a VA examination where he reported chronic pain in his bilateral feet with intermittent stiffness and swelling. He also had functional limitations to standing and walking. He was diagnosed with bilateral mild to moderate pes planus. The examiner opined there was no permanent increase of severity of this condition in service. While the examiner acknowledged the Veteran had subsequently developed bilateral osteoarthritis in his feet, he found no evidence of increase of pes planus while in service. A medical opinion was obtained in January 2012 regarding aggravation of the Veteran's bilateral pes planus during service. The physician noted the Veteran had pre-existing pes planus, first degree asymptomatic, at entrance to service. He also reviewed the Veteran's minor foot injuries during service, to include hurting his foot at the beach, complaining of a boil on his right foot, complaining of right heel pain and possible plantar fascitis. The physician indicated these complaints were not related to his pes planus. He opined it was less than likely that the Veteran's active duty service caused any subsequent increase in severity or progression of his pes planus. His rationale was that pes planus was generally a slowly progressive deformity which could be affected by job activities, sports activities, or subsequent injuries. However, in reviewing the evidence of record the physician found no evidence the Veteran's feet complaints in service had no bearing on the progression of his pes planus. In April 2012 the examiner provided an addendum opinion. He indicated he had reviewed the November 2010 VA examination and his opinion had not changed. He again stated the Veteran's bilateral pes planus was not aggravated in service. He took into account the Veteran's complaints of foot pain in service, but noted these instances had little bearing on the progression of pes planus. A preponderance of the competent probative evidence of record weighs against the Veteran's assertion that his pre-existing pes planus worsened during his active service. Specifically, two VA physicians have opined that it is less likely than not that the Veteran's pes planus increased in severity during service. The Board acknowledges that the June 2003 VA examiner related the Veteran's condition to service. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). In this case, the Board assigns less probative value to the June 2003 VA opinion. While the June 2003 VA examiner related the Veteran's condition to service, the examiner did not discuss the fact that the Veteran entered service with bilateral pes planus. Furthermore, as discussed above, the question at issue is whether bilateral pes planus worsened (was aggravated) during service, not whether direct service connection is warranted. See Jensen, supra; 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (2012). The Board finds credible the Veteran's report that currently experiences foot pain and bilateral pes planus. The Veteran also testified that he performed rigorous work in service including 60-70 parachute jumps and numerous marches, which worsened his feet. See September 2009 Board hearing transcript. The most credible evidence of record suggests that the Veteran entered service with bilateral pes planus which did not worsen throughout active duty. The Board observes the Veteran was treated in service with complaints of foot pain. However, the January and April 2012 opinions specifically stated that these complaints were not related to his pes planus and did not aggravate the condition. The Board acknowledges that the Veteran believes that his pes planus worsened in service. Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the issue of diagnosing aggravation of a pre-existing medical condition, this falls outside the realm of common knowledge of a lay person. The Veteran's assertion has been investigated by competent medical opinion, and found to be without merit. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for bilateral pes planus and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for bilateral pes planus is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs