Citation Nr: 1327966 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 12-17 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a foot disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for Charcot-Marie-Tooth (CMT) disease. The Veteran's appeal of this decision has been re-characterized to one of service connection for a foot disorder to encompass the claimed foot impairment, potentially relevant symptoms, and to better comport with the medical evidence of record. See Brokowski v. Shinseki, 23 Vet. App. 79, 84-85 (2009). The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case; however, no pertinent records were found in the Virtual VA file. FINDINGS OF FACT 1. The Veteran's preexisting bilateral pes planus condition was noted at service entrance. 2. The Veteran's preexisting bilateral pes planus did not undergo an increase in severity during active service. 3. The Veteran is not currently diagnosed with CMT disease. CONCLUSION OF LAW 1. As the Veteran's preexisting pes planus was not aggravated by service, and the Veteran does not have a current diagnosis of CMT disease, the criteria for service connection for a foot disorder have not been met. 38 U.S.C.A. §§ 1110, 1153, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.156, 3.159, 3.326, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the May 2009 notice letter sent prior to the initial denial of the claim, the RO apprised the Veteran of the information and evidence necessary to substantiate his claim for service connection, the information and evidence that he was to provide, and the information and evidence that VA would attempt to obtain on his behalf. In this regard, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits for the claimed disorder, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claims. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the Board notes that the record contains all available evidence pertinent to the claims. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the claims and the record contains sufficient evidence to make a decision on the claims. The complete service treatment records are included in the claims file, and available post-service treatment records identified as relevant to the Veteran's claim have been obtained or otherwise submitted. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of benefits from the Social Security Administration. See 38 C.F.R. § 3.159(c)(2). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has not been afforded a VA medical examination or medical opinion with respect to his claim of service connection for a foot disorder. In this case, because the weight of the evidence is against finding that there was an increase in severity of preexisting bilateral pes planus during active service or any additional injury to or disease of the foot in service, and there is sufficient medical evidence to decide the question of aggravation, there is no duty to provide a VA medical examination. There is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for a foot disorder because there is no in-service injury to which any current disabilities could be related by competent opinion. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran should be avoided). Moreover, there is otherwise sufficient medical evidence of record to make a decision. 38 U.S.C.A. § 5103A(d). The Veteran received contemporaneous evaluation and treatment from medical professionals when he complained of foot problems in service. This care is consistent with the remaining evidence of record, as the Veteran has not reported that he went untreated for foot or any additional problems he experienced while in service. Further, there is sufficient medical evidence that he does not have a diagnosis of CMT disease. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here, the Veteran's foot disorder - to include pes planus and CMT disease - is not a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, neither 38 C.F.R. § 3.303(b) nor 38 C.F.R. § 3.309(a) apply to the Veteran's claim for service connection for a foot disorder. Additionally, as bilateral pes planus was noted at service entrance, the issue is one of aggravation for bilateral pes planus rather than direct service connection, so 38 C.F.R. § 3.303(b) provisions are not applicable. In cases based on preexisting disorders noted at service entrance - as well as congenital disorders, like CMT disease, which necessarily existed prior to service - the question is one of aggravation by service, not direct service connection. See VAOPGCPREC 82-90. At the time of the service entrance examination, 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 (West 2002). Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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 progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe, 7 Vet. App. at 246. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b)(1); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Where the pre-service disability did undergo an increase in severity during service, clear and unmistakable evidence (obvious or manifest, with the burden on VA) is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). Service Connection for a Foot Disorder The Veteran contends that his preexisting CMT disease was aggravated by basic training and road marches during active military service. On his claim form, he wrote that CMT started in 1969, although he also wrote that CMT was genetic. The Veteran has not made any specific contentions of aggravation of the preexisting pes planus. After consideration of the lay and medical evidence of record, the Board finds that service connection is not warranted for CMT disease or any broader foot disorder, including the preexisting bilateral pes planus. In this case, the weight of the evidence shows that the Veteran does not have a current diagnosis of CMT disease and that preexisting bilateral pes planus, which was "noted" at entrance into active service, did not increase in severity during active service. The May 1968 service enlistment examination report notes mild pes planus. As preexisting bilateral pes planus was "noted" at service entrance, the presumption of soundness does not apply to this condition. See 38 U.S.C.A. § 1111. As the Veteran's preexisting bilateral pes planus was "noted" at the time of service entrance, service connection may granted for this particular condition only if it is shown that the bilateral pes planus was aggravated by service, that is, if the preexisting bilateral pes planus permanently worsened in severity beyond its natural progression during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) ("Under section 1153...the appellant bears the burden of showing that his preexisting condition worsened in service"). If any in-service aggravation of a preexisting disorder noted at service entrance is shown, the in-service evidence of aggravation is considered sufficient to allow for service connection unless there is clear and unmistakable evidence that the disorder was not permanently aggravated beyond the natural progression of the condition during service. See 38 C.F.R. § 3.306. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase, permanent in nature, in the disability. In this case, the primary question is whether the preexisting bilateral pes planus increased in severity during active service. In explaining the meaning of an increase in disability, the Court has held that 'temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). On the question of whether the Veteran's preexisting bilateral pes planus was aggravated during service in this case, the Board finds that the weight of the evidence is against finding that the preexisting bilateral pes planus increased in severity during active service. The service treatment records (STRs) show that the Veteran was seen at a service orthopedic clinic in May 1969 and received arch supports, presumably to relieve pain associated with bilateral pes planus and a plantar fascia strain, which was mentioned in the entry. The Veteran was also seen for a problem pertaining to bilateral pes planus two weeks later. On September 11, 1969, the Veteran complained of foot pain lasting two weeks and reported that arch supports were not helpful. He was subsequently referred to a service orthopedic clinic, where the examiner assessed that "there may be mild pes planus, but certainly not to the extent that [the Veteran] in my opinion should be excluded from performing his duties in the military." The examiner, recording his entry on September 12, 1969, recommended full duty without restrictions. The remainder of the STRs do not include any complaints, diagnosis, or treatment for a disorder manifesting as pain in the feet. Moreover, the September 1970 service separation examination includes a normal clinical evaluation of the feet and a statement by the Veteran that he was in good health. In October 2008, the Veteran reported bilateral foot pain for over 30 years to B.W., a private physician. More specifically, the Veteran described "pain and then numbness that is slowly creeping up the leg." B.W. opined that the pain was "most likely Charcot Marie Tooth disease," however, the report shows that the Veteran did not submit to testing that might have confirmed its existence. Similar letters were composed by B.W. in November 2008 and June 2009. Bilateral pes planus was not discussed or mentioned in any of the letters. Thus, when viewed together, the evidence associated with B.W. weighs against finding in-service aggravation of preexisting bilateral pes planus. If the Veteran's preexisting bilateral pes planus had increased in severity during service, it is likely that the Veteran would have reported a history of pes planus or complained of foot problems at the service separation examination. Furthermore, the Veteran demonstrated a proclivity to report foot pain while in service, yet the last recorded complaint was nearly one year before the Veteran was discharged. While the Veteran reported in 2008 that he had experienced pain in his feet for over 30 years, there is no evidence to indicate that he or his physician attributed the pain to bilateral pes planus. Although the 30 year time period presented by the Veteran may have overlapped with his active military duty, the remainder of the evidence, most notably the absence of any documentation of pain or otherwise since September 1970, weighs against the probative value of the Veteran's statement for purposes of establishing in-service aggravation. More specifically, it only shows the presence of symptoms associated with pes planus, not aggravation (worsening) of the pes planus. As the Veteran's bilateral pes planus was noted at service entrance, and the weight of the lay and medical evidence demonstrates that it did not increase in severity during service, the weight of the evidence demonstrates no aggravation of the preexisting bilateral pes planus by service. Because the evidence does not demonstrate worsening of the bilateral pes planus during service (preponderance of the evidence is against a finding of worsening during service), the presumption of aggravation does not arise in this case, so the burden on VA to rebut the presumption (by clear and unmistakable evidence) does not arise. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. For these reasons, the Board finds that a preponderance of the evidence shows that the Veteran's preexisting bilateral pes planus that was noted upon service entrance did not increase in severity during service; specifically, the Board finds that the Veteran's preexisting bilateral pes planus noted upon service entrance was not aggravated by service, as defined by 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306. Because aggravation by service of the preexisting bilateral pes planus is not demonstrated, the benefit of the doubt doctrine does not apply, and the claim for service connection for a foot disorder, on the basis of preexisting bilateral pes planus, must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102. Notwithstanding the issue of the Veteran's preexisting bilateral pes planus, the Board recognizes that the Veteran has specifically claimed service connection for CMT disease, a congenital condition characterized by progressive symmetric distal muscle weakness and atrophy starting in the feet and legs." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 530 (32nd Ed. 2012). The Veteran asserts that the disease reached an advanced stage because of service aggravation. It is undisputed that CMT is a hereditary/genetic disorder. The Court has recognized that congenital diseases, but not defects, may be service connected. See Winn v. Brown, 8 Vet. App. 510, 516 (1996). VA's General Counsel has also interpreted that service connection may be granted for diseases (though not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90; 38 C.F.R. §§ 3.303(c), 3.306. The General Counsel opinion draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in a defect is "more or less stationary in nature" while a disease is "capable of improving or deteriorating." VAOPGCPREC 82-90 at p. 2; Quirin v. Shinseki, 22 Vet. App. 390 (2009). The Board finds that CMT is a congenital disease because it is not "more or less stationary in nature." Nonetheless, after a review of the medical and lay evidence, the Board finds that the weight of the evidence is against finding that the Veteran currently has a diagnosed disorder of CMT disease. The Veteran, as a lay person, lacks the medical training and credentials to render a competent medical diagnosis on such a complex medical disorder as CMT disease. Although he is competent to relate a contemporaneous medical diagnosis by a medical professional, see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), he has neither submitted any evidence from a medical professional diagnosing CMT disease nor said that a doctor told him of a diagnosis of CMT disease. In letters from October 2008, November 2008, and June 2009, B.W., a private physician said that ailments affecting the Veteran were "most likely" CMT disease. Each letter further indicates that the Veteran declined to submit to genetic testing, so no actual diagnosis was rendered. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as here, the overall evidence of record fails to support a diagnosis of the claimed disability of CMT disease, that holding is of no advantage. As the weight of the evidence demonstrates that the Veteran does not have CMT disease, the preponderance of the evidence is against the claim for service connection, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Even so, if the Veteran were to submit evidence of a current diagnosis of CMT, the weight of the medical and lay evidence is against finding that CMT disease was aggravated by active service. When congenital diseases such as CMT become the basis for a claim of service connection, VA adjudicators are ordinarily justified in finding that such a disease, by its very nature, preexisted the claimant's military service. VAOPGCPREC 82-90 at p. 3. Accordingly, entitlement to service connection turns on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. See id.; 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. As part of his May 2009 statement alleging that his CMT disease has reached an advanced stage because of active military duty, the Veteran referenced a letter from the Selective Service System in January 1966, which notes that he was placed in an "Acceptability Undetermined" status pending further evaluation. There is no further explanation about why the Veteran was placed in this status, and the record does not establish such reasons either. The Veteran was deemed qualified for induction into the military on a February 1969 service entrance examination, which is evidence that he did not have any disqualifying disorder, including CMT disease. STRs show that the Veteran did not complain of, seek treatment for, or receive any diagnoses related to his lower extremities (excluding feet) while in service. As discussed above, however, STRs include four distinct entries relating to foot problems. The first instance in May 1969 was addressed by a professional in a VA orthopedic clinic who attributed the undisclosed foot issue to bilateral pes planus and plantar fascia strain and recommended arch supports. A visit approximately two weeks later was similarly related to bilateral pes planus. Then, in September 1969, the Veteran reported pain in his feet that had been occurring for two weeks. The examining VA physician and the VA orthopedist, seen the following day, both attributed the pain to bilateral pes planus. The Veteran's feet were given a normal clinical evaluation on the September 1970 service separation examination, during which the Veteran also stated that he was in good health. Similarly, the Veteran's lower extremities (except feet) were given a normal clinical evaluation. Thus, in-service evidence shows that all foot symptoms are attributable to preexisting bilateral pes planus, not CMT disease. In October 2008, the Veteran reported a history of bilateral foot pain for over 30 years to B.W., a private physician. More specifically, the Veteran described pain and then numbness that is slowly creeping up the leg." This evidence demonstrates that the Veteran did not report any symptoms or seek treatment for CMT disease in service. While the evidence shows complaints of foot pain while in service, service medical professionals attributed the pain to preexisting bilateral pes planus in each instance. Their diagnoses, based on contemporaneous interaction with the Veteran and medical knowledge, serve as credible and probative evidence to support the conclusion that the Veteran's foot pain in service was associated with (the preexisting) bilateral pes planus, not CMT disease. Thus, without evidence showing that the underlying congenital CMT disease has been aggravated by service, the Veteran's claim for service connection for a foot disorder, on the basis of CMT disease, must also be denied. See 38 C.F.R. § 3.306(b)(1); Hunt, 1 Vet. App. at 297. ORDER Service connection for a foot disorder is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs