Citation Nr: 1322397 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 05-03 528A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant; Appellant's friend ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active service from April 1967 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. A video conference hearing was held before the undersigned Veterans Law Judge in February 2009. A transcript of that proceeding is associated with the claims file. The appeal was previously remanded by the Board in March 2009, September 2010, and April 2012. In the April 2012 decision, the Board granted service connection for a low back disability, and that claim is no longer on appeal. The Board noted that the Veteran alleged multiple symptoms of the feet and were diagnosed as abnormalities (e.g., synovitis and degenerative joint disease of the toe) other than those specific to pes planus. The Board granted separate service connection for bilateral foot disabilities other than pes planus and for bilateral ankle disabilities. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Therefore, the remaining claim on appeal is for service connection for bilateral pes planus. A review of the Virtual VA paperless claims processing system contains additional VA outpatient treatment records that have been considered. FINDING OF FACT The evidence is at least in relative equipoise as to whether bilateral pes planus began during active duty service. CONCLUSION OF LAW With resolution of the doubt in favor of the Veteran, the criteria for the establishment of service connection for bilateral pes planus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim 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 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal As the Board is granting service connection, the claim is substantiated, and there are no further notice and assistance requirements. Wensch v. Principi, 15 Vet App 362, 367-68 (2001). The Veteran served as a U.S. Army vehicle mechanic and supply specialist. He also participated in training as a field wireman. He contends that he developed bilateral pes planus as a residual of injury incurred in a fall from a telephone pole in training in 1969 with an aggravation in another fall while mowing grass in Germany in 1970. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. b38 U.S.C.A. § 1110 (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, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, pes planus is not among those disorders recognized as a chronic disease. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board may weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson is not competent to diagnose a form of cancer). As reflected in Fed.R.Evid. 701, lay witness testimony is permissible in the form of opinions or inferences when (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed.R.Evid 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). In several written statements and in the February 2009 Board hearing, the Veteran reported that he was initially assigned to training as a field wireman. After several weeks of classroom work, training in the field included climbing telephone poles. He reported that after climbing a pole 40 to 50 feet, a foot gaff slipped and he "stuttered" to the ground while still wearing a belt, a maneuver termed "burning the pole," and landed on his right foot first, then on the left foot. The gaffs on each foot did not penetrate the soil causing an awkward landing. He reported that he was initially sent to the mental health clinic for evaluation after the accident because he refused to go back up the pole. He further reported that he was treated for various back/lower extremity symptoms at the battalion aid station several days later but was not hospitalized and prescribed only analgesic medication and bed rest. See Hearing Trans., p. 5-6. The Veteran also reported that he injured his right foot in a lawn mowing accident in 1970 when the blade struck his foot and tore away his boot. He reported that he received treatment at an aid station with heat, ice, and analgesic medication. See Hearing Trans., p. 31-32. The Veteran reported that he experienced foot pain since the injuries and was treated by a private physician immediately after service, but he acknowledged that the physician was deceased and that his efforts to obtain medical information was not successful. See Hearing Trans., p. 21-22. Notably, the Veteran has never reported that he observed the collapse of his arches during service. Service personnel records showed that the Veteran was assigned to training as a field wireman from June 24, 1967 to September 1, 1967. He then received training as a vehicle mechanic and successfully performed those duties in Germany from December 1967 to December 1971. In an April 1967 enlistment physical examination, the Veteran denied any foot trouble, and the examiner noted no foot or lower extremity abnormalities. Service treatment records contain only one entry between May and October 1967. The undated entry showed that the Veteran was interviewed in the mental health clinic after having "difficulties" climbing poles in the wiremen's course. The examining technician noted that it was doubtful that the Veteran would "be able to overcome his legitimate fears to be successful" in that particular phase of training and recommended transfer to another course. The clinical outpatient records appear to be complete because they have sequential entries and do not show any treatment for foot or ankle compression injuries or scrapes on the legs or arms. An October 1967 treatment note reflects complaints of back pain, right-sided pain, and paravertebral spasms but there was no mention of a previous traumatic injury. The Veteran again complained of low back pain radiating to both ankles in September 1969. Contemporaneous treatment records show that the low back pain was related to heavy lifting and that he reported no prior trauma. In May 1970, treatment records confirm that the Veteran injured his great right toe while mowing the lawn. X-rays showed no fracture, and a clinician provided a toe bandage and medication for pain. In a November 1971 discharge physical examination, a military physician noted a review of the Veteran's service medical record folder (DD Form 722) and noted "no serious illnesses." On examination, the physician noted no abnormalities of the feet or lower extremities. In an RO hearing in May 2005, the Veteran reported that he was not present for any examination in November 1971. The report shows that he did not sign a space acknowledging "no significant change in my helth (sic) since entering the service." Nevertheless, the examination report contains details such as blood pressure and the results of a chest X-ray, urinalysis, and a digital rectal examination. In the February 2009 Board hearing, the Veteran reported that his service treatment records contained a note that "other records were lost." See Hearing Trans., p 18-19. The Board is unable to locate a note to that effect in the file, and the records appear to be complete with chronologic entries at all duty stations throughout his service. Private and VA outpatient treatment records in 1974, 1975, 1985, 1987, and 1993-94 show treatment for low back pain with several references to post-service work and home accidents. The records are silent for any reference to specific injuries in service. Other than one notation in June 1975 regarding tingling in the toes and feet after a lifting accident and one notation in September 1993 regarding weak extension of the right hallux, the records are silent for chronic foot pain or observation of flat feet. VA treatment records in August 2002 show that the Veteran twisted his right ankle in October 2001. VA treatment records dated in October 2002 show complaints of chronic right ankle pain since tripping over the carpet molding in October 2001. The pertinent diagnoses were chronic right foot and ankle pain with normal X-rays. The Veteran was prescribed medication for pain and shoe inserts. A February 2003 VA note reflects a flare-up of gout in the right foot. VA records dated in March 2003 show continued complaints of right foot and ankle pain, with the first post-service notation regarding the history of falling from a pole in 1967 and progressively worsening pain. The pertinent assessment was degenerative joint disease, possible secondary to old trauma. The Veteran presented testimony at the RO before a Decision Review Officer in May 2005. He again asserted that his low back, feet, and ankle pain were all due to falling from a pole in-service and landing flat-footed. He testified that he was first sent to a psychiatrist and then to an aid station. The Veteran also stated that he was treated immediately after service by a private physician through a fee-basis program. He testified that he saw the physician for approximately two to three years on a regular basis but that the physician was deceased and that he was unable to obtain the related treatment records. A July 2005 VA podiatry note reflects a diagnosis right chronic sinus tarsi syndrome and anterior ankle degenerative joint disease. A VA podiatrist noted that the Veteran should continue to use his heel lifts due to suspected old calcaneal fracture. The podiatrist subsequently moved to private practice. Private MRI reports from the former VA podiatrist beginning in 2005 reflect right ankle calcaneal deformity, minor osteoarthritic changes involving the first metatarsal phalangeal and the first interphalangeal joints of the right foot. A July 2005 private x-ray report shows a clinical history of falling from a height of 30 feet during active duty, but there is no x-ray evidence of a fracture or deformity of the feet. This was confirmed by a March 2006 x-ray report, although a "suggestion of healed right calcaneal fracture" with possible talar-ankle joint impingement was noted. In May 2006, the former VA podiatrist submitted a letter on behalf of the Veteran's conditions. She stated that his osteoarthritic changes were "directly related to two accidents incurred while on active duty." The first incident, she stated, consisted of falling 30 to 40 feet above ground while climbing a pole. The subsequent injury occurred when the Veteran slipped into a ditch while moving grass. She noted that, at the time of his first injury, he sustained compressive trauma to both calcanei, and that it was miraculous that the Veteran survived the fall. She stated that this type of injury/trauma was well-documented in scientific literature and attached specific reference for review. She observed that the Veteran was not immediately treated by anyone familiar with his injuries and that he was allowed to ambulate without any further monitoring. She stated that the second injury, i.e., slipping and falling in ditch and while mowing and twisting his back, could have been caused by his ankle instability from the initial compression injury. Clinical examination of the Veteran's feet demonstrated bilateral absence of sub-talar motion. There were no functioning joints in the rear of his feet. The podiatrist also noted that the calcaneal inclination angles of both feet were diminished, but she did not clearly diagnose pes planus. VA treatment records dated from January 2007 to February 2010 show continued treatment for ankle and foot pain. The Veteran testified before the undersigned at a hearing in February 2009. He again reported that his feet, ankle, and low back conditions originated from the in-service injuries of falling from a pole and mowing a lawn. He testified that he landed "straight down," essentially on both feet. He stated that, following the accident, he was initially treated by a psychiatrist because he refused to climb back up the pole after falling. During that period, he noted that he was prescribed bed rest and Tylenol. With respect to his feet, he stated that he had no problems with his feet when he entered service and that his arches were "good." He also described injuring his ankle, foot, and back in 1970 when in a lawn mower incident. He indicated treatment immediately following service in 1972 from a private physician who is now deceased. He stated that he tried to obtain the records from the State of Louisiana but was unsuccessful. In February 2009, the former VA podiatrist submitted another letter stating that the Veteran's lower extremity problems persisted and that he was unable to put full weight on his right foot since a post-service accident. She noted sharp, neuritic pain going from the plantar aspect of his mid-tarsal joint into his lower leg with any weight-bearing on his foot. His sciatic pain affected both legs. He walked with a cane and used boots, soft ankle immobilized braces, and custom orthotics. She opined that given his pre-existing osteoporosis and service-related injuries, "I believe that [the Veteran] is thankful that his [post-service] accident... did not result in further disability." The Veteran underwent a VA feet examination in February 2011 by another VA podiatrist (hereafter examiner). The Veteran reported trauma to both feet after falling from a pole during service in June 1967 aggravated by a second injury involving a lawn mower in Germany in 1970. He endorsed bilateral pain and numbness with symptoms worse on the right foot. Physical examination of the feet revealed tenderness, weakness, abnormal weight-bearing, sinus tarsi, posterior tibial tendon weakness, callosities, mild hallux valgus, and moderate pronation. X-rays showed bilateral mild hallux valgus with mild or minimum degenerative changes at the first metatarsophalangeal joint and mild pes planus on the right foot only. The examiner diagnosed bilateral hallux valgus and bilateral pes planus. The examiner opined that his foot conditions were not caused by the fall in the military. She reasoned that the Veteran reportedly landed first on his right foot but that he has bilateral pes planus and synovitis. She also inconsistently noted that the current pes planus and tendon dysfunction were worse on the left. Although there is no lay or medical evidence that pes planus pre-existed service, the examiner noted that the Veteran had classic signs of moderate pes planus and concluded that "military activities" aggravated pes planus over time. She also cited synovitis of both subtalar joints in support of the conclusion. The Veteran underwent a VA joints examination in May 2011. The Veteran reported that he sustained a bilateral ankle injury in-service. The pertinent diagnosis was bilateral degenerative joint disease of the ankles. The examiner opined that it was less likely than not that any current ankle disability was related to the injuries in service. He reasoned that when the Veteran was examined in 1974 following an on-the-job injury, the Veteran's back, knees, and ankles were normal at that time. The records of this 1974 examination do not mention the ankles or feet. In April 2012, the Board granted service connection for bilateral foot disabilities other than pes planus, acknowledging that the fall from the telephone pole occurred and that the Veteran sustained some form of injury at that time. The Board remanded the pes planus claim to obtain additional VA outpatient treatment records and clarification of the opinion of the February 2011 VA examiner. Specifically, the Board asked the examiner to consider the Veteran's report of landing flat-footed in the 1967 fall from the telephone pole and to consider whether the current pes planus was aggravated by service-connected low back, ankle, or other foot disorders including degenerative changes and synovitis. The RO has obtained and associated VA outpatient treatment records through January 2013 with the electronic claims file. The records show that the Veteran has been provided orthotic shoes or inserts and medication for chronic spinal and lower extremity pain. In September 2012, the VA examiner provided an addendum to her February 2011 opinion. The examiner continued to conclude that the Veteran's pes planus (and other foot disorders) were not caused by the lawn mowing accident or the fall from the telephone pole. The examiner noted that the lawn mower blade injured only the right toe and that the Veteran reported to her that he landed first on his right foot but that she observed more severe pes planus on the left foot. This is not consistent with X-rays in 2011 that showed mild pes planus only on the right. In December 2012, the examiner again noted a review of the claims file and concluded that the pes planus was a "natural progression" and unrelated to injury. In a separate electronic message, the examiner noted that hallux valgus was a natural progression of pronated pes planus. The examiner further noted that there was no evidence to show that hallux valgus or pes planus was caused or aggravated by the service-connected ankle disabilities. The examiner declined to provide an opinion on causation or aggravation of pes planus by the service-connected low back disability as it was outside her area of practice. In a January 2013 letter, the Veteran's VA primary care physician endorsed the former VA podiatrist's conclusions and noted that the Veteran was unable to travel for further examinations other than to the local community based outpatient clinic. The RO attempted to obtain a spinal examination at that clinic to address the Board's question of a possible association between pes planus and the spine. Administrators at the CBOC indicated that an appropriate spinal examiner was not available but that VA transportation was available. There is no evidence that an examination with a contract physician in the area was arranged and the Veteran did not appear for an examination at the regional VA medical center. In August 2012 and January 2013, the former VA podiatrist did not indicate awareness of the grant of service connection for low back, ankle, and some foot disabilities. The podiatrist inaccurately noted that the Veteran's service treatment records were "finally located" in 2010 and were "filled with evidence related to the sequela of the initial fall that has never been examined and properly taken care of." The podiatrist noted that it was "miraculous" that the Veteran survived a high impact fall from 50 feet, completed his tour of duty, reenlisted, and after service married and had three sons. The Veteran had difficulty holding post-service jobs because of progressive deformity and associated disability. The podiatrist did not specifically discuss pes planus but rather referred only to lost canceal bone, leg length discrepancy, and spinal pathology. The podiatrist recommended that the Veteran restart his treatment and an examination by a private orthopedic trauma specialist in a local hospital's veterans' program. Notwithstanding the lack of accuracy and clarity of the lay evidence and medical opinions of record, the Board concludes that there is sufficient credible evidence to provide a relatively equal balance of evidence both for and against service connection for pes planus. As a preliminary matter, the Board concludes that the contentions of missing or late receipt of service treatment records have no merit. Although the Veteran was notified in January 1972 that his records were not yet received to adjudicate his first claim, the entire file of original records was received in March 1972 and was discussed in an April 1973 statement of the case for claims unrelated to that currently on appeal. The records contain enlistment and discharge physical examinations, numerous laboratory and imaging study reports, and many routine entries from base clinics and aid stations throughout the Veteran's period of service. The records provide credible and probative evidence that the Veteran experienced a descent from a telephone pole and a fear of heights. In its April 2012 decision, the Board acknowledged that some form of injury to the feet, ankles, and spine occurred in the fall and a very minor injury to the right toe in the lawn mowing accident. The Veteran is competent to report the circumstances of the injuries and that he sought physical in addition to psychiatric treatment after the events. However, the absence of any record of examination, X-rays, or mention of the fall to examiners at any later time prior to 2003 diminishes the credibility of the reported level of severity of his injuries. The Board places some probative weight on the observation and opinion of the former VA podiatrist who adopted the Veteran's description of the events but in accurately referred to it as a near death free fall and miraculous recovery followed by negligent military medical care. Nevertheless, there is evidence of old canceal fractures of both feet and progressive degenerative changes and misalignment that have not been attributed by examiners to any other cause. The podiatrist also noted that the calcaneal inclination angles of both feet were diminished, but she never clearly diagnosed pes planus. The Board places some probative weight on the observations and opinions of the VA examiner who concluded that the pes planus was not caused by the fall or lawn mowing accidents. This examiner did review the claims file and noted the absence of treatment or reports by the Veteran to military clinicians of any post-accident symptoms. However, the examiner based her conclusions primarily on inconsistent reports by the Veteran of which foot first absorbed his weight at the end of the arrested fall and on observations of which foot had more severe pes planus which were not consistent with X-ray imaging. Moreover, the examiner diagnosed bilateral pes planus and remarked that the disorder was aggravated by military activities, suggesting that it existed at some time during service. This conclusion is supported by the former podiatrist who commented that the current pes planus was likely a deformity that underwent progressive deterioration. In view of the Board's April 2011 decision that acknowledged the occurrence of the fall in 1967 and in view of the lack of clear evidence of the severity of the foot injuries, the Board concludes that further development for additional review and greater accuracy and clarity of opinion is not likely to be productive. As there is evidence both for and against the incurrence of pes planus as a result of a fall or as a result of accumulated foot stress from military activities, the Board will resolve all doubt in favor of the Veteran and grant service connection for pes planus. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for bilateral pes planus is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs