Citation Nr: 1323491 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-50 678 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1991 to March 1992. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2008 by the RO. In November 2012, the Board remanded this matter for further development. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in August 2012. A transcript of the hearing is associated with the claims file. FINDING OF FACT Affording the Veteran the benefit-of-the-doubt, the pre-existing bilateral flat feet is shown as likely as not to have chronically worsened beyond natural progress by injury sustained during his periods of active duty. CONCLUSION OF LAW The Veteran's disability manifested by bilateral pes planus was aggravated by his periods of active duty. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes obtaining a medical opinion when such is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. Legal Criteria 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. Service connection may be granted 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). Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Intermittent or temporary flare-ups during service of a pre-existing injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently - is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). When no preexisting condition is noted at the time a Veteran enters service, the presumption of soundness arises and he is presumed to have been sound upon entry. The presumption of soundness may only be rebutted by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2011). In general, every "Veteran" shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Further, 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). 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. Id. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran asserts that his bilateral pes planus is due to service and continued to worsen with time after service. The August 1990 service entrance examination indicated that he entered service with a foot abnormality. On January 1992, the Veteran was seen for complaints of pain in the feet that was assessed as bilateral pes planus and bilateral plantar fascia. The service treatment records in February 1992 also noted an impression of pes planus. The Veteran's service personnel records noted that the he was administratively discharged after a Medical Board found that he did not meet the minimum physical standards of enlistment by reason of his foot disability that existed prior to service. The post-service private medical records include a statement dated in February 2010 from the Veteran's physician, Dr. G.H., who stated that, after reviewing the Veteran's service treatment records, it was his opinion that the Veteran's bilateral plantar fasciitis, as well as bilateral knee pain, was as likely as not to related to his military service. The private medical records from September 2010 show that the Veteran sought treatment from an orthopedic physician due to bilateral foot pain (mid foot pain). He reported having had symptoms on a fairly continuous basis for the past 18 years. He reported that the pain was over the medial plantar fascial band along the midfoot, bilaterally, and about equal in intensity on both sides. He had taken some over-the-counter medications as needed. Upon examination, the physician noted bilateral mild physiological pes planus, which he believed passively was fully correctable as the physician recommended certain shoes with inserts to help this condition. At the August 2012 hearing, the Veteran testified that he experienced a lot of trauma to his feet during service. He elaborated that he had knee problems in service and was told that it was actually his foot problems that were causing his knee problems. Until then, he was unaware of a foot problem. He indicated that he was given steroid shots in service, injected into the arches of his feet. He felt that he was discharged due to an arch-related foot problem. The Veteran stated that his foot pain was mostly in the arch, although he felt the pain in the heel as well. The Veteran stated that he did not feel any foot pain prior to service despite a record of having a pre-existing foot abnormality. The Veteran reported always wearing boots during Marine Corps training and enduring a great deal of trauma to his feet due to hiking 15 to 20 miles regularly. The Veteran testified that he still had issues with pain in his heels where the fascia attached to the back of the foot, but mostly in the arch. He reported feeling pain in the whole foot area altogether so that it was hard to differentiate the symptoms between the heel and arch pain. His private doctor reportedly told him that the solution was to try different shoes with inserts/arch support (which he was currently using). The Veteran was afforded a VA examination in August 2011. Although the examiner noted the bilateral pes planus existed prior to the Veteran's period of service, the examiner did not comment on whether the pre-existing bilateral pes planus was aggravated by active service. As a result, another VA examination and medical opinion was requested by way of the November 2012 remand. Upon VA examination in February 2013, the examiner found that the Veteran had bilateral plantar fasciitis and minimal bilateral pes planus. The Veteran reported having had bilateral arch and heel pain and using doubled up insoles in each shoe. Arch supports used in the past were of no real benefit to him. The Veteran reported experiencing pain when first placing weight on each foot in the morning. The pain was located along the plantar arch/heel in each foot. His symptoms were not alleviated by shoe inserts, and the Veteran was noted to have decreased longitudinal arch height on weight-bearing for both feet. An addendum nexus opinion obtained for the February 2013 examination was that the bilateral pes planus was less likely than not incurred in or caused by service. The examiner reasoned that there was no chronic condition established in the service treatment records and the Veteran had a pre-existing pes planus condition that was temporarily aggravated due to the rigors of training required in service. There was no documentation of a permanent aggravation beyond the normal progression of the condition. In reviewing the entire record, the Board finds the evidence to be in relative equipoise in showing that the Veteran flatfeet condition is as likely as not due to foot trauma sustained during his period of active service in the Marine Corps. There is a noted to be an in-service event or injury as documented in the Veteran's service treatment records showing that he had bilateral plantar fasciitis and bilateral pes planus. Although the records indicated a pre-existing foot abnormality, it was unclear whether the abnormality was bilateral plantar fasciitis or pes planus. Furthermore, the February 2013 VA examiner indicated that the rigors of training certainly aggravated the Veteran's flatfeet condition. Although the VA examiner indicated that it was a temporary aggravation, the competent lay statements of record indicate continuing foot problems since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a layperson is competent to report on the onset and continuity of his current symptomatology). The Board finds the Veteran's written statements and testimony of pain during service and continued pain after service to be credible. Furthermore, there is medical documentation of a lasting worsening of the problems attributable to his flatfeet condition. The Veteran has to wear special shoes and inserts, which he asserts do not relieve his pain at this point. Although the private medical records indicate a primary concern with respect to the Veteran's plantar fasciitis, the Veteran has consistently reported pain in his arch and heel area as a whole as he feels pain in the entire foot, with most of it being in the arch. He is certainly competent to make such asserts about the nature of his symptomatology with respect to his foot condition and the Board finds his testimony to be credible. Thus, the Board notes that there is sufficient evidence of chronicity as supported by the Veteran's statements and there is nothing in the record that specifically contradicts the Veteran's reports of continued pain. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). In resolving all reasonable doubt in the Veteran's favor, service connection for this bilateral pes planus disability is warranted. ORDER Service connection for bilateral pes planus is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs