Citation Nr: 1328360 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 05-01 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for bilateral foot disorders. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to May 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The RO, in pertinent part, denied service connection for bilateral foot disorders. In February 2007, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing has been associated with the claims file. The claim presently on appeal was previously before the Board in May 2007, February 2009, and September 2011, when it was remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After taking further action, on each occasion, the AMC confirmed and continued the prior denial, and returned the case to the Board. On the lattermost occasion, the Board denied the Veteran's request for an additional Board hearing. In October 2012, the Board requested an expert medical opinion from the Veterans Health Administration (VHA), pursuant to 38 U.S.C.A. § 7109 (West 2002) and 38 C.F.R. § 20.901 (2012). Clarification of the opinion was sought in February 2013. In December 2012 and April 2013, the Board provided copies of the opinions to the Veteran and his representative, and informed them of their right to submit additional evidence or argument within 60 days. Responses were received in December 2012 and April 2013, together with a waiver of RO review of additional evidence. See 38 C.F.R. § 20.1304(c) (2012). The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. When this case was previously before the Board, it referred to the RO the matter of the Veteran's entitlement to service connection for chronic headaches and diabetes mellitus. As it does not appear that any action has been taken on those matters, they are again referred to the RO. FINDINGS OF FACT 1. The report of the Veteran's enlistment examination is lost and presumed destroyed. 2. The Veteran has hypermobility of the feet, which has been identified as a congenital defect that clearly and unmistakably pre-existed service. 3. The Veteran has offered credible testimony to the effect that he experienced problems with his feet during service. 4. It is at least as likely as not that the problems the Veteran experienced with his feet during service were due to disease processes, such as pes planus, equinus deformity, hallux valgus, and hammertoe deformities, that arose out of, and were related to, the pre-existing hypermobility of his feet; he has continued to experience problems with these processes. 5. The evidence does not establish that any foot disorders other than hypermobility were clearly and unmistakably present prior to service. CONCLUSIONS OF LAW 1. The hypermobility of the Veteran's feet is not a disease or injury for which compensation may be paid. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.9 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for bilateral foot disorders other than hypermobility (to include pes planus, equinus deformity, hallux valgus, and hammertoe deformities) have been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Considerations On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. A. The Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (now codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA ask the claimant to provide any pertinent evidence in his possession). The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA notice requirements apply generally to all five elements of a service connection claim; namely, (1) veteran status, (2) existence of a disability, (3) a connection between the veteran's service and the disability, (4) degree of disability, and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Ordinarily, notice with respect to each of these elements must be provided to the claimant prior to the initial unfavorable decision by the agency of original jurisdiction (AOJ). Id. In the present case, the Board finds that VA has satisfied its duty to notify. By way of letters sent to the Veteran in April 2002, March 2006, and June 2007, the AOJ informed him of the information and evidence necessary to substantiate his claim for service connection. He was also informed of the manner in which ratings and effective dates are assigned for awards of disability benefits. Although some of the required notice was not supplied until after the Veteran's claim was initially adjudicated, the claim was subsequently readjudicated in October 2008, April 2011, and July 2012 supplemental statements of the case, thereby correcting any defect in the timing of the notice. See, e.g., Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). No further corrective action is necessary. B. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). In the present case, the Board finds that the duty to assist has been fulfilled. Records of the Veteran's relevant post- service private and VA medical care have been obtained. He has also been examined (to include in March 2002 and August 2009), and a VHA medical expert opinion has been procured with respect to the nature and etiology of the conditions here at issue. Inasmuch as the VHA opinion is based on a review of the record, and contains a rationale for the conclusions offered, the Board finds the opinion adequate. The Board acknowledges that complete service medical records for the Veteran have not been obtained. The record shows, however, that the AOJ has made exhaustive efforts to procure them-to include from facilities in which the Veteran was reportedly treated during service-and that the Records Management Center, National Personnel Records Center (NPRC), and NPRC Archives have all indicated that they are not in possession of any additional records. Under the circumstances, the Board finds that further efforts to obtain the records would be futile. See 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). The requirements of the Board's prior remands have been satisfied, and the Veteran has not identified, or provided releases for, any additional evidence that exists and can be procured. No further development action is required. II. The Merits of the Veteran's Appeal Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Every veteran who served in the active military, naval, or air service after December 31, 1946 is 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 the 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, 1137 (West 2002). Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304(b) (2012), and a history 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)(1) (2012). See also Quirin v. Shinseki, 22 Vet. App. 390 (2009) (indicating that a veteran is entitled to the presumption of soundness under circumstances where his service treatment records are missing and presumed destroyed); Doran v. Brown, 6 Vet. App. 283 (1994) (to the same effect). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service-the second step necessary to rebut the presumption of soundness-a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). If the presumption of sound condition is not rebutted, "the veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. That is to say, no deduction will be made for the degree of disability existing at the time of the veteran's entry into service. Id.; 38 C.F.R. § 3.322 (2012). In a case involving a congenital condition, the Board must first determine whether the condition is a defect or disease. If the congenital condition is a "defect" (i.e., a structural or inherent abnormality which is more or less static in nature), service connection must be denied unless the evidence establishes that a disability or injury that was incurred in service is superimposed on the congenital defect. If, on the other hand, the congenital condition is a "disease" (i.e., a condition capable of improving or deteriorating), then the Board must determine whether the presumption of soundness applies. See 38 C.F.R. §§ 3.303(c), 4.9 (2012); Terry v. Principi, 340 F.3d 1378 (Fed. Cir. 2003); Quirin, supra.; Monroe v. Brown, 4 Vet. App. 513 (1993); VAOPGCPREC 82-90. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears) already mentioned, etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson, supra. In the present case, most of the Veteran's service treatment records are lost and presumed destroyed. The sole relevant record from service is the report of a May 1979 separation examination. In a case such as this, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). During a Board hearing held in connection with his appeal in February 2007, the Veteran testified that he was told that he had "bad feet" when he was evaluated for service intake. He stated, "I had burning and stuff but they said it would be okay to go into the service." He reported that he had had to wear "big white boots" while stationed in Alaska, which made his feet hurt, and that he engaged in road marches while stationed at Fort Hood, where his feet "really got . . . bad." He indicated that he had gone to the dispensary for his feet (and knees) on many occasions during service, and had received non-surgical treatment for the difficulties with his feet, including treatment with orthotics. He testified that he informed medical personnel about his foot problems when he was discharged from service; that he had seen a private care provider for follow-up of his foot problems after service in 1979 (whose name he could not remember); and that he had had surgery on both feet in 1988 (the records of which are not available). He indicated that certain of his care providers had told him that his current problems were related to service. The Veteran was examined for VA compensation purposes in March 2002. He reported that he had had "bone spurs" of the foot since 1978, manifested by pain, weakness, stiffness, swelling, heat, fatigue, redness, and lack of endurance, both at rest and on walking. He also reported a history of surgery for "spurs of his foot and swelling." On examination of the Veteran's feet, there were signs of abnormal weight bearing, particularly on the right first metatarsal on the plantar aspect, with some degree of exfoliation. There were also findings of callosity on the right first, third, and fourth metatarsals. He had flat feet and bilateral hallux valgus, but did not require shoe inserts or corrective shoes. There were several scars on the toes. On the right, he had scars measuring 5.5 centimeters (cm) on the great toe; 4.0 cm on the second toe; 3.0 cm on the third toe; and 2.0 cm on the fourth toe. On the left, he had a z-plasty measuring 7.0 cm, occurring on the dorsal aspect of the great toe; a 3.0 cm scar on the second toe; a 2.0 cm scar on the third toe; and a 1.5 cm scar on the fourth toe. X-rays of the right foot revealed a screw transversing the proximal and distal phalanges of the first digit, with partial bony fusion across those two bones; two screws transversing the first metatarsal bone, consistent with prior hallux valgus repair; bony fusion of the middle and distal phalanges of the fifth digit, likely congenital in origin; joint space narrowing and questionable partial fusion across the proximal and middle phalanges of the second digit; joint space narrowing at the proximal interphalangeal (PIP) of the third digit; possible bony fusion between the middle and proximal phalanges of the fourth digit; mild deformity involving the proximal phalanx of the fifth digit; and lateral displacement of the middle and distal phalanges, fused, in relation to the proximal phalanx of the fifth digit that might reflect a partial dislocation. X-rays of the left foot revealed two screws transversing the first metatarsal bone, consistent with prior hallux valgus repair; bony fusion across the PIP joints of the second, third, and fourth digits; and bony fusion of the middle and distal phalanges of the fifth digit. The final diagnostic assessment was status post bunionectomies and multiple phalangeal surgeries of both feet. VA treatment records reflect periodic evaluations for diabetic foot care, to include in June 2006, October 2006, January 2007, and January 2008. The records contain clinical assessments that include onychomycosis and keratomas/hyperkeratoses. In June 2009, the Veteran presented for VA treatment of long-standing right ankle and foot pain, recently worse. On examination, he had pain on palpation of a hyperkeratotic lesion of the "sub-1st met head" of the left foot; pain on palpation of the inferior medial malleoli and "sub-1st" metatarsophalangeal joint; negative Tinel and Villeux signs on the right; obliteration of the right arch with weight bearing; and a right abducted forefoot. X-rays revealed right pes planovalgus; status post bilateral "1st met" osteotomy; status post right hallux interphalangeal joint fusion with internal fixation; status post bilateral "5th AP"; and osteophytic changes to the right subtalar joint and tarsal navicular joint with obliteration of the arch on weight bearing. The clinical assessments included hyperkeratoses and right pes planovalgus. In August 2009, the Veteran underwent a VA examination for purposes of obtaining an opinion with respect to the etiology of his foot problems. At that time, it was noted that he denied pedal complaints prior to active duty, and related to the examiner that his foot problems began in 1975, "during and after a road march of five miles." The Veteran reported that his symptoms were intermittent and stabbing initially, while pointing to the outside of his left foot, and indicated that he believed his symptoms were due to his foot rubbing on his shoe. The Veteran also reported that his right foot had been "run over by a slow moving [J]eep" during service in 1976. He indicated that he had experienced a throbbing pain after that incident, but denied hearing or feeling a pop or snap, said he was able to walk, and reported that he had been told that he had not broken any bones and had not required any therapy or casting. The Veteran further related that, during service in 1977, when he was stationed in Alaska, he had spent a night in the field in 40-below-zero weather, and that his feet started "aching real bad" a couple of days later. He indicated that, after that incident, he would experience aching and stabbing pain if his feet were exposed to cold or water. He denied that he had been given orthotics during that time frame. As for the time after service, the Veteran reported that he had been on his feet a lot for work. He said that his feet were always aching and hurting, with symptoms occurring when he first got up in the morning or he was on his feet for a while. He essentially reported having pain from 1975 through 1984, when he was told he needed surgery. He indicated that he was then given orthotics, wore them daily without relief, and eventually had surgery in 1988. He told the examiner that he experienced an approximately 30 percent improvement following the surgery, and continued to wear orthotics. He reported that his current, average daily pain was 5/10, which increased to 7/10 if he increased time spent on his feet. Following examination of the Veteran's feet, and review of X-rays, the examiner entered a final diagnostic assessment of pes planus, right greater than left; painful, intractable plantar keratosis and tyloma, left foot; residuals of second, third, and fourth digit PIP arthrodesis, left foot; residuals of hallux interphalangeal joint arthrodesis with internal fixation and second, third, and fourth digit PIP arthrodesis, right foot; residuals of fifth digit arthroplasty, left and right foot; residuals of bunionectomy with internal fixation, left and right foot; and equinus deformity, left and right ankle. After reviewing the claims file, the examiner opined that the Veteran's complaints and resulting surgical intervention were directly associated with his pes planus condition. The examiner felt, however, that he would have to resort to speculation in order to state that the Veteran had a pes planus deformity while on active duty, as the examiner was unable to find supportive documentation and therefore could not draw a clear nexus. The examiner further stated: Of note[] is the injury sustained to the veteran[']s right foot when he alleged it was run over by a "slow moving [J]eep" in 1976[,] which may account for the right arch being lower than the left both physically and radiographically. From a biomechanical standpoint, individuals with pes planus have a higher likelihood of developing bunions and digital deformities secondary to overpronation and unlocking of the midtarsal joint. The midtarsal joint unlocking leads to hypermobility of the forefoot and bunion formation as well as stabilization forces of the flexor tendons which in turn lead to digital hammering or clawing. In November 2011, the August 2009 VA examiner prepared an addendum clarifying his prior opinion. The examiner stated, in part: It is my medical opinion that the veteran[']s current foot condition as stated in the August . . . 2009 [VA] examination are related to the pes planus and equinus diagnosis and is noncontributory from his active service or is in any other way causally related to his active service. The 1979 [service separation examination] report indicated that the veteran had a "normal foot" and there was no supportive evidence within the [claims] file to substantiate the veteran[']s subjective report of having the right foot run over by a [J]eep. In fact, there was no objective evidence that the veteran had ever been treated for pedal complaints in general. The rationale for the above opinion stems from the biomechanical evaluation of this individual in which his bilateral pes planus (overpronation) and equinus play a significant role in his current symptoms and resultant surgical intervention. Individuals with limited motion of the ankle (Equinus) pronate at the subtalar joint in an attempt to increase the available range of motion within the joint. In turn, the midtarsal joint unlocks[,] increasing the pes planus deformity which leads to forefoot hypermobility. It is hypermobility of the forefoot which then leads to an increased rate of bunion formation and digital contractures as the stabilizing forces are lost. In conclusion, the veteran[']s current complaints are not caused by, or a result of his active duty or in any other way casually [sic] related to his active service, including the 1976 incident in which the veteran's right foot was run over by a [J]eep. In October 2012, the Board obtained a medical expert opinion from a VHA medical expert (an orthopedic surgeon). After reviewing the claims file, the expert noted that the Veteran had been treated for multiple deformities across his bilateral feet that were consistent with "congenital-type" problems. The expert explained that such congenital conditions often do not present problems as a youngster, but as one ages, conditions such as malalignment, pes planus, equinus deformity, and hypermobility can cause problems deforming the feet. He stated: These problems include bunion formation with osteophyte/bone spurs, as well as deformities of the lesser toes, including hammer toes and claw toes. Typical treatments for these include orthotic management and possible surgery. This veteran does give a strong history of treatment with orthotics and then had reconstructive surgery across the feet. This would be expected with the normal natural progression of an underlying congenital disease. Although the veteran does give a history of foot pain starting in service, it is not likely that the development of that pain was an aggravation of a preexisting condition beyond natural progression. It is most likely that his foot problem was the natural progression of a congenital-type problem, including pes planus and equinus deformity with hypermobility. In summary, it is less likely as not that the veteran's current bilateral foot condition was caused by activities in the military service, including marching and injuries such as a Jeep rolling over his feet. It is also less likely as not that his foot condition was aggravated beyond natural progression by activities in the military service. (Emphases added.) Because the medical evidence did not clearly delineate whether the congenital conditions identified were in the nature of "defects" or "diseases," and it was unclear from the opinions obtained whether sound medical principles supported the conclusion that it was "clear and unmistakable" that any congenital diseases of the Veteran's feet pre-existed service, and were not aggravated thereby, the Board returned to the case to the VHA medical expert to prepare an addendum opinion addressing those matters. Thereafter, in a February 2013 addendum, the medical expert opined that the Veteran had a congenital, structural defect of the feet-specifically identified as hypermobility-that clearly and unmistakable pre-existed his entry into service. As to pes planus and equinus deformities, the expert opined that those conditions could be defects or diseases and, while those deformities may have pre-existed the Veteran's entry into service, it was not clear and unmistakable that they did. In that regard, the expert noted: It is not clear and unmistakable that the veteran had a disease of his feet prior to entering the service. . . . It is clear from his history that he had symptoms of problems of his feet prior to entering the service by his testimony in February 2007 that he had "bad feet." This, however, does not clarify what bad feet means, as the veteran is not a doctor, he cannot tell us what that means. It makes sense that the veteran had pain in his feet secondary to his congenital defect, i.e., the hypermobility of the feet. The expert further opined that is was "less likely as not" that additional disability became superimposed on the hypermobility defect during service, to include as a result of trauma, and that it was also "less likely as not" that any of the Veteran's currently shown foot disabilities had their onset in service or were otherwise related to disabilities likely present in service. With respect to the relationship between hypermobility defects and other disabilities of the feet, the expert stated: Patients with hypermobility in the ligaments in the feet are at high risk of developing problems in the feet, such as pes planus; equinus deformity; deformities of the lesser toes, including hammer toes; and deformity of the great toe, including hallux valgus. When patients do develop these problems, they are inherent to the structural defect and not typically directly related to any activity. When patients do develop these disease processes, activities can cause acute flare-ups of pain, but do not significantly alter the natural progression of the disease process. . . . [T]he natural history of [a] congenital defect, such as hypermobility, is to develop problems, such as pes planus, equinus deformity, hallux valgus, [and] hammer-toe deformity. The veteran has clear testimony of symptoms consistent with "bad feet" prior to entering the service. These are typical complaints of the natural progression of disease processes secondary to the congenital defect. As noted [previously], these disease processes naturally progress with time and are not specifically caused by physical activity. Physical activity may cause acute flare-ups of pain but will not aggravate the disease process beyond its natural progression. In simple terms, a patient with hammer toes, hallux valgus, or pes planus will not have significant pain if they do not do activities. These activities may cause pain but will not aggravate the condition beyond natural progression. It therefore makes sense that the veteran would state that activities in the military caused pain in his feet. It, however, does not scientifically conclude that the activities caused the problem or aggravated the disease beyond natural progression. . . . The examiner understands the legal definitions that have been put forth in regards to differentiating a defect from a disease. I also understand that some diseases have natural progression. It should be understood that a disease that progresses naturally may also have periods of acute flare-ups. These acute flare- ups may not in and of themselves aggravate the disease beyond natural progression. From review of the claims file, it is clear that this Veteran has a congenital defect of hypermobility. He also developed further problems with his feet, including the hallux valgus and hammertoes. These problems caused him symptoms. These problems are the natural progression of his disease, and the history given of complaints in service in consistent with acute flare-ups and not aggravation of the disease beyond natural progression. Following review of the evidence, and the applicable law and regulations, the Board finds that the preponderance of the evidence is against an award of service connection for hypermobility of the Veteran's feet. The matter of whether the hypermobility of the Veteran's feet is properly to be considered a "defect" or "disease" is a complex medical matter, not capable of lay observation. As noted above, the VHA medical expert specifically opined in his February 2013 addendum that the hypermobility of the Veteran's feet was a congenital, structural defect that clearly and unmistakably pre-existed service. Neither the Veteran nor his representative is shown by evidence to have the medical knowledge necessary to offer an opinion on the matter. The August 2009/November 2011 examiner did not expressly address questions of pre- existence, or defect versus disease, and the VHA opinion on the question is otherwise uncontradicted by other competent (medical) evidence of record. Is it the Board's conclusion, therefore, that the hypermobility of the Veteran's feet is a congenital defect and, thus, not a "disease" or "injury" for which compensation may be paid. 38 C.F.R. §§ 3.303(c), 4.9 (2012). As such, service connection for hypermobility must be denied. However, with respect bilateral foot disorders other than hypermobility (to include pes planus, equinus deformity, hallux valgus, and hammertoe deformities), the Board finds that the evidence supports the Veteran's claim. As noted above, the report of the Veteran's enlistment examination is lost and presumed destroyed. As such, he is entitled to the presumption of soundness with respect to diseases of the feet. In his February 2013 addendum opinion, the VHA examiner determined that, although conditions such as pes planus and equinus deformities may have pre-existed the Veteran's entry into service, it was not clear and unmistakable that they did. Accordingly, the presumption of soundness with respect such conditions is not rebutted. Turning to the question of whether bilateral foot disorders other than hypermobility had their onset in service, the Board acknowledges that the report of the Veteran's May 1979 separation examination reflects that the Veteran's feet were found to be normal. However, in the absence of other service records to afford context, the Board is inclined to put little stock in that examination, particularly where, as here, no medical conditions of the feet are identified on the examination and more recent evidence reflects the presence of a congenital defect. The Board notes that the Veteran has offered credible testimony to the effect that he experienced problems with his feet during service. The VHA expert has observed that patients with hypermobility defects of the feet (such as the Veteran) are at high risk of developing "disease processes" such as pes planus, equinus deformity, hammer toes, and hallux valgus, and that developing such processes is, in fact, inherent to, and part of the natural history of, a congenital defect such as hypermobility. The VHA expert has further observed, in essence, that when patients develop such disease processes, activities can cause acute flare-ups of pain; and that the Veteran's reported complaints and symptoms during service could be explained by the presence of such processes. The Board acknowledges that the VHA medical expert expressed what appear to be unfavorable opinions with respect to the likelihood that additional disability became superimposed on the hypermobility defect during service, and the likelihood that any of the Veteran's currently shown foot disabilities had their onset in service or were otherwise related to disabilities likely present in service. However, it appears from the context of the expert's opinion that he concluded, not that the presence of superimposed disability, or onset of disease processes in service, was unlikely; but rather, that it was unlikely that superimposed disability, or onset of disease processes, could be attributed to physical activity or injury during service. Significantly, under the law, however, it is not required that a disease be attributable to in-service injury or physical activity in order to be service connected. All that is required, in a case such as this, is evidence reflecting that the disease process had its onset in service (e.g., that the problems the Veteran experienced with his feet during service were due to disease processes that arose out of, and were related to, the pre-existing hypermobility of his feet). The opinion from the VHA medical expert appears to leave open that possibility. Indeed, it seems to suggest that that sort of etiological progression may have been likely. The only other opinion to suggest otherwise, from August 2009/November 2011 VA examiner, is based, in large part, on the absence of service records and the normal findings at separation which, as noted, above, the Board finds unpersuasive. Under the circumstances, therefore, and because the evidence also shows that the Veteran has continued to experience problems with these disease processes, the Board will grant service connection for bilateral foot disorders other than hypermobility (to include pes planus, equinus deformity, hallux valgus, and hammertoe deformities). The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102 (2012). ORDER Service connection for hypermobility of the Veteran's feet is denied. Service connection for bilateral foot disorders other than hypermobility (to include pes planus, equinus deformity, hallux valgus, and hammertoe deformities) is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs