Citation Nr: 1327616 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 07-01 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the residuals of a right foot injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to June 1984, and from November 1985 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) from a December 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. During the pendency of this appeal, jurisdiction of the claims folder was transferred to the RO in New Orleans, Louisiana. The Veteran's claim was remanded by the Board in January 2011, December 2012, and May 2013. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. FINDINGS OF FACT 1. The Veteran does not have any current right foot disability residual of an in-service right foot injury. 2. The Veteran's right foot pes planus pre-existed service and did not increase in severity during service. CONCLUSION OF LAW The Veteran had right foot pes planus prior to entry to service, his right foot pes planus did not increase in severity during service, and the criteria for service connection for residuals of a right foot injury have not been met. 38 U.S.C.A. §§ 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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, 3.326(a) (2012). In October 2005, prior to the December 2005 rating decision on appeal, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate the claim, and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the Veteran's service treatment records, VA treatment records, and Social Security Administration (SSA) records have been obtained. The Veteran has been provided VA medical examinations. In January 2011 the Veteran stated that all of his medical treatment was through the VA. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. Neither the Veteran nor his representative has indicated that there is any additional obtainable evidence that should be obtained to substantiate the claim. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. On his original application for compensation benefits, received in October 2005, the Veteran alleged that he had a right foot injury in 1983, while serving in Germany. Later in October 2005 the Veteran submitted a VA Form 21-4142, upon which he stated that a nail caused his injury and that his [right] foot was soaked in alcohol and bandaged. He further stated that he was given a tetanus shot and told to get back to soldiering. He reported that he had not received any treatment from private doctors. The Veteran's examination for enlistment in October 1980 states that the Veteran had mild asymptomatic pes planus. Service treatment records show that he was treated for shin splints in June 1983. At his discharge examination in June 1984 he was diagnosed with moderate asymptomatic pes planus. Reenlistment examination report dated in October 1985 notes that the Veteran had mild asymptomatic pes planus. On examination prior to discharge in May 1986, the Veteran was diagnosed with a plantar wart of the left (not right) heel, and was noted to have a birth mark on the right foot. There was no mention of pes planus. Following service, the Veteran's VA medical treatment records show diagnosis of, and ongoing treatment for, pes planus and plantar warts beginning in September 2005. A September 2005 VA treatment record notes that the Veteran reported a 20 year history of painful spots on the bottom of both feet. He also reported a two year history of bilateral calf pain with walking. He stated that he has had problems with his feet for years. It had gotten progressively worse and he now had numbness in the legs. In December 2005 the Veteran reported throbbing in the feet and legs. Subsequent VA medical records reveal that the Veteran has claudication of the lower extremities. A July 2006 podiatry note states that the Veteran reported pain in both feet with hard calluses. He had corns and calluses on both feet. On VA examination in February 2011, the Veteran reported feet pain after basic training, right more than left. The Veteran did not recall any specific foot injury. The examiner noted that there was no mention of any corns or callus treated on active duty. Examination revealed painful motion, tenderness and weakness. X-rays revealed a minimal bunion deformity. The right foot diagnoses were pes planus and metarsalgia secondary to forefoot callous. The examiner stated that the Veteran's condition was congenital or developmental and that the condition was not worsened by service. The examiner noted that there was no record of a direct injury to the right foot. He opined that the Veteran's pes planus and metarsalgia secondary to plantar callous were not caused by, or a result of, service. He noted that the Veteran's current foot disorder is due to post service intercurrent causes. He stated that the main factor affecting the Veteran's feet was peripheral vascular disease and subsequent foot calluses. VA examination in January 2013 revealed bilateral pes planus and bilateral calluses. The VA examiner noted that pes planus was clearly identified as being present on the Veteran's initial service enlistment examination in October 1980 and opined that the Veteran's pes planus was a pre-existing condition. In June 2013 the Veteran's claims file was reviewed by a VA physician. The physician opined that the Veteran's pes planus clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The physician noted that the entry medical examination of June 30, 1981 reported pes planus, "mild", asymptomatic. He then noted that a June 6, 1984 discharge examination reported "moderate" pes planus, asymptomatic. He further noted an October 7, 1985 examination reported pes planus, "mild', asymptomatic. The VA physician pointed out that each examination was done by a different reviewer. None of the reviewers specified a specific foot suggesting that both feet were involved. No in-service foot x-rays were of record. The VA physician stated that because of the somewhat subjective difference between "mild" and "moderate" it would appear that the Veteran's time in service did not significantly aggravate the pes planus condition. The VA physician opined that it was more likely that the Veteran's pes planus was aggravated by the Veteran's post service employment as a baggage handler coupled with the natural progression of his condition. As noted above, the Veteran's right foot pes planus was noted on entry to the Veteran's initial period of service. Consequently the presumption of soundness does not attach. See 38 C.F.R. § 3.304. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In this case the Board finds that the Veteran's pre-existing right foot pes planus did not increase in severity during service. This finding is supported by the February 2011 VA examiner's opinion that the Veteran's pes planus was not worsened by service. It is also supported by the service treatment records which do not show any foot complaints during either period of service. Furthermore, it was noted to be asymptomatic on enlistment examination in October 1980, asymptomatic on discharge examination on June 1984, and asymptomatic on enlistment examination for a second period of service in October 1985. Additionally, the May 1986 examination for discharge from the Veteran's second period of service does not reveal any findings of pes planus, which is further indication that it remained asymptomatic. The fact that the Veteran's pes planus remained asymptomatic during his two periods of service indicates that there was no increase in severity during both periods of service. The Board recognizes that the Veteran's pes planus was described as "mild" in October 1980, and then described as "moderate" on the June 1984 discharge examination report. However, considering that the Veteran's pes planus was still noted to be asymptomatic in June 1984, and given the June 2013 VA physician's discussion regarding the difference between "mild" and "moderate" being subjective, and his opinion that the Veteran's pes planus was clearly and unmistakably not aggravated by service, the Board finds that the Veteran's right foot pes planus did not increase in severity during service. Accordingly, the preponderance of the evidence indicates that the Veteran's pre-existing right foot pes planus was not aggravated by service connection and service connection for right foot pes planus is not warranted. With regard to the Veteran's remaining current right foot disabilities the Board finds that none of these are related to either of the Veteran's two periods of service. In order to establish service connection or service-connected aggravation for a present disability, the Veteran 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). Although the Veteran asserts that he has current right foot disability due to a right foot injury in service, the Board does not find that his report of an in-service injury to be credible. As noted above, none of the service medical records document any right foot injury, and no right foot disability, other than pes planus, was shown on the examinations for discharge from service. Also weighing against the Veteran's credibility is his statement to the February 2011 VA examiner that he did not recall any specific foot injury. This contradicts his earlier statement of having experienced a right foot injury during service. The Veteran has reported that he has had right foot pain ever since service. The Veteran is competent to report right foot pain symptoms ever since service despite the lack of medical evidence of such. However, he has not claimed that he has had right foot plantar warts, calluses, bunions, peripheral vascular disease, or any other specific right foot disability ever since service. He has only claimed to have had right foot pain ever since service. On the question of whether any of the current right foot disorders are related to the reports of right foot pain since service, the Board finds the Veteran's lay statement to be of limited probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the question as to whether any of the current right foot disorders are related right foot pain since service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the Board notes that the most probative evidence of record indicates that the Veteran's current right foot disabilities, other than pes planus, first developed after discharge from service and are not related to service. The February 2011 VA examiner opined that the Veteran's current foot disorders are due to post service intercurrent causes. In this case the VA medical records dated from September 2005 have shown the Veteran to have a number of right foot disorders including metarsalgia, calluses, corns, a bunion, tinea pedis, and peripheral vascular disease. The Veteran's right foot was not shown to have any of these disorders during service and none of the medical evidence has related any of these disorders to the Veteran's two periods of service. As noted above, the February 2011 VA examiner opined that the Veteran's current foot disorders are not related to service, and there is no medical evidence to the contrary. In this case the most probative medical evidence includes the Veteran's service treatment records and the VA medical opinions. This evidence shows that the Veteran's pre-existing right foot pes planus did not increase in severity during service, and that the Veteran's other current right foot disorders are unrelated to service. Accordingly, the preponderance of the evidence is against the Veteran's claim and service connection for the residuals of a right foot injury is not warranted. ORDER Entitlement to service connection for the residuals of a right foot injury is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs