Citation Nr: 1329182 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 12-32 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral foot disability, to include bilateral pes planus, bilateral hallux valgus and degenerative joint disease of the feet (originally claimed as bilateral pes planus). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from September 1953 to September 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By that rating action, the RO denied service connection for bilateral pes planus. The Veteran appealed this rating action to the Board. In a May 2013 decision, the Board expanded the scope of the Veteran's claim from service connection for pes planus to service connection for a bilateral foot disability pursuant to the evidence in the record and the holdings in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam) and Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (a claimant's identification of the benefit sought does not require any technical precision). The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The Veteran's representative has submitted a written waiver of initial RO consideration of all evidence submitted since the Supplemental Statement of the Case was issued in August 2013. Therefore, the Board accepts this additional evidence for inclusion in the record. See 38 C.F.R. § 20.800 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence of record indicates that his bilateral pes planus disability is likely related to his period of active service. CONCLUSION OF LAW The criteria for service connection for a bilateral pes planus disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the United States Court of Appeals for Veterans Claims (the Court). (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determination reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for granting his service connection claim for bilateral pes planus, without detriment to the due process rights of the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, in order to prevail on the issue of service connection on the merits, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (en banc). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. A veteran is presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrated that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If the disorder was not noted upon entry, the presumption of soundness may be rebutted by a showing, by clear and unmistakable evidence, both that a disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003 (July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). Such clear and unmistakable evidence includes medical facts and principles that may be considered to determine whether the increase is due to the natural progression of the condition. 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 is within its province to 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. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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, (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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background and Analysis The Veteran seeks service connection for a bilateral foot disorder. He originally claimed service connection for pes planus. In his written submissions, he contended his pes planus was the result of more than 20 years of active military service, including many hours of marching and standing on his feet in combat boots, which he said provided no arch support. He also noted that while serving in Vietnam as a construction equipment operator building roads and airfields he was on his feet continuously. He also disputed VA examiners who determined his pes planus was congenital when it was never noted on his enlistment examination. He maintained that pes planus was a disqualifying condition when he enlisted in 1953, although prospective service members today can apply for a waiver of the condition. In a June 2013 statement he said that as his pes planus was not listed on his enlistment physical and it appeared on his retirement physical he believed that his pes planus developed over the years that he served on active duty. The Veteran's service personnel records associated with the claims file indicate that during his 23-year period of active duty, including service in the Republic of Vietnam, his military duties included operating motor vehicles and construction equipment. The Veteran's September 1953 enlistment examination revealed that he had no foot abnormalities and there was no indication of pes planus in either foot by the examiner. Service treatment records are negative for any complaints of, or treatment for, pes planus although records dated in December 1970 indicated treatment for fractures in the fourth and fifth digits of his right foot. His February 1976 discharge examination noted pes planus. Post service, the Veteran was granted service connection for status post fractured right toe. Pes planus was noted in a July 1983 Air Force base clinic medical record. An August 1983 private medical record showed diagnoses for bilateral pes planus, bilateral hallux valgus, degenerative arthritis of the right foot, and chronic right foot pain with metatarsalgia. The Veteran underwent a VA examination in November 2009. After a review of the claims file and physical evaluation of his feet, a VA doctor of osteopathy (DO) diagnosed the Veteran, in part, with mild pes planus, "which appeared to be developmental." The VA DO also entered a diagnosis of bilateral hallux valgus deformity with hammer-toe of the second to fourth toes, bilaterally. The November 2009 VA DO concluded that the Veteran's pes planus and hallux valgus deformity had not been caused by or related to worsening beyond natural progression by the service-connected fractures of the second and third toes. In its May 2013 remand, the Board found this opinion to be of little probative value as the examiner's conclusion was based on inaccurate facts, namely that the Veteran had fractured his second and third toes of the right foot in service, as opposed to his right fourth and fifth phalanges. In addition, the November 2009 examiner did not provide any rationale for his conclusion that the Veteran's bilateral pes planus and hallux valgus were not caused by or related to worsening beyond natural progression by the "service-connected fractures of the 2nd and 3rd toes." A March 2010 X-ray study of the feet at VA showed bilateral hallux valgus and minimal bilateral pes planus. An earlier March 2010 VA medical record also recorded an impression of degenerative joint disease of the feet. The Veteran underwent a VA examination in November 2010 and the examiner, a VA physician's assistant, provided an addendum in December 2010 after reviewing the claims file. She diagnosed the Veteran with "Developmental mild bilateral pes planus" that was not caused by or related to the [service-connected] fourth and fifth digits of the right foot fracture and was not worsened by natural progression during military service. The VA PA noted that per medical science, bilateral pes planus was a congenital condition unless there was a history of bilateral foot or foot arch fractures. The VA PA further commented that the Veteran's fourth and fifth toe fractures of the right foot did not cause or relate to bilateral pes planus or aggravate it beyond its natural progression. According to a September 2011 VA medical record found in his Virtual VA eFolder, the Veteran was seen for a complaint of a burning sensation in his feet. A May 2012 VA medical record noted the Veteran's complaint of bilateral foot pain and foot deformity. Diagnoses included flat feet, severe bilateral hammertoes, severe bilateral hallux valgus, calluses, and peripheral vascular disease. A December 2012 private medical record showed that the Veteran had bilateral hammertoes, bilateral hallux laterally deviated with bunions, and had difficulty walking. In its May 2013 remand, the Board noted that neither the November 2009 or November 2010 examiner had characterized the Veteran's bilateral pes planus and bilateral hallux valgus as a developmental (congenital) defect or disease. Congenital or developmental defects, as such, are not disabilities for VA compensation purposes and may not be service connected. 38 C.F.R. §§ 3.303(c), 4.9 (2012). Service connection is permissible, however, for "diseases" (but 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 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. Therefore, a remand was necessary for medical clarification of the Veteran's claimed foot disorders. The Veteran underwent a VA examination in July 2013 by a VA physician. According to the report of examination, the Veteran told the physician that he had flat feet all his life, that he probably should not have been taken into service, and that he had foot trouble in service but never told anyone about it. Diagnoses included: bilateral pes planus, bilateral hallux valgus, metatarsalgia, and bilateral hammertoes (second through fifth digits). She said there was insufficient evidence to warrant or confirm a diagnosis of degenerative joint disease of the feet. The July 2013 VA examiner found that the pes planus was a developmental condition not acquired during service. She explained there was no proximate nexus between the pes planus and his service-connected fractured toes of the right foot as one condition would not cause the other. She also found no objective evidence of aggravation during service because there was no evidence of in-service bilateral foot trauma or bilateral foot arch fractures. The Board notes that the July 2013 VA examiner's medical opinion as to the Veteran's bilateral pes planus is inadequate. She did not clearly state whether it was a "disease" or "defect", although it appears she might have considered it a disease. In any event, she failed to state why she considered it a "developmental condition" when the May 2013 Board remand had told her that when a foot disorder was not noted at entrance to service the Veteran was presumed to be in sound condition on entry to service. Moreover, her opinion does not address the proper "clear and unmistakable error" legal standard VA must use when adjudicating a claim involving the aggravation of a preexisting condition. Indeed, her opinion did not address the "at least as likely as not" standard used in cases of direct service connection and is merely conclusory. Finally, she failed to address the Veteran's lay evidence of significant time spent standing and marching during a 23-year service career. In an August 2013 statement, the Veteran disputed what he called the July 2013 VA examiner's implication that he could not have acquired flat feet during his military career. He submitted two articles from the Foot and Ankle Institute in Seattle and the American Academy of Orthopedic Surgeons which addressed "adult acquired flatfoot." Based on review of the evidence of record, the Board finds that service connection for bilateral pes planus is warranted. Initially, the Board notes that there is some question as to whether the Veteran's pes planus preexisted his entry into service in 1953. While the Veteran told the July 2013 VA examiner that he had "always" had pes planus, and filed his claim for aggravation of a preexisting condition, he has consistently told VA since that his pes planus developed during his long period of military service. Most importantly, his September 1953 entrance physical noted normal feet and there was no indication of pes planus. Clear and unmistakable evidence that a disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003. A preexisting 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. Because the presumption of soundness has attached in this case, VA has the burden of proving by clear and unmistakable evidence that both (1) the Veteran's pes planus preexisted service and (2) that such disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 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. Id. at 1096; 38 U.S.C.A. § 1153. In the present case, there is no competent medical evidence dated prior to the September 1976 discharge examination which reflects a diagnosis of pes planus. Thus, the only medical records which refer to the possible existence of pes planus prior to service are post-service VA examinations which referred to "developmental" pes planus. These comments appear to be based entirely upon their conversations with the Veteran at the time of examination, as the enlistment physical examination did not record a diagnosis of pes planus. The Board notes that the law has provided that history provided by a veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In sum, the Board believes that there is no competent medical evidence of record to show the nature of an injury, residuals, course of treatment, or any other factors that might enable the Board to gauge any relevant information as to the pre-existence of pes planus. As such, the Board finds that the Veteran's inconsistent relation of his history alone, without any corroborating medical evidence, is insufficient to rebut the presumption of soundness in this case. The Board's review of the record leads it to a firm belief that there is no clear and unmistakable evidence that pes planus preexisted service. As a foot disorder was not noted at service entrance in 1953, the Veteran is presumed to be in sound condition on service entry with respect to his feet. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). Because the presumption of soundness has not been rebutted for the pes planus aspect of this claim, it becomes one for direct service connection, without consideration of aggravation of a preexisting condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As to the direct service connection claim for pes planus, the Board notes that the Veteran has been diagnosed with a pes planus disability since the time of his September 1976 discharge examination. It is clear that the Veteran has a current pes planus disability and, therefore, the first requirement for direct service connection has been met. While the Veteran's service medical records do not show complaints of, or treatment for, pes planus during service, the Board observes that there is sufficient evidence in the claims file to show that during his military service he incurred a foot injury. Besides evidence of two broken toes in December 1970, the Veteran's written submissions detail his complaints of many hours of marching and standing during his 23-year military career while wearing boots with no arch supports and being continually on his feet while building roads and airfields. The Veteran's written submissions constitute competent lay evidence to show possible in-service occurrence of a disease or injury in this case since the experience of foot pain is something capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Veteran is not competent to assess and diagnose bilateral pes planus, he is clearly competent to relate his foot pain during a long period of active duty. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As lay and medical evidence shows in-service foot complaints during the Veteran's long period of active duty the second requirement for establishing service connection has been met. The question remains, therefore, whether his current pes planus is related to his active duty service. While the three inadequate VA medical opinions noted above do not support such a nexus, the plain fact that the Veteran's pes planus was noted on his discharge physical does. As there is no mention of pes planus in the record before the Veteran's retirement physical, and the Veteran is currently diagnosed with pes planus, the Board believes such is sufficient to place the evidence for and against this claim into relative equipoise, so as to warrant resolving any reasonable doubt in the Veteran's favor regarding whether his current pes planus is related to his service. 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, that reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the evidence found within the claims file is, at the very least, in equipoise as to the question of whether the Veteran's pes planus disability is related to service. There can be no doubt that further medical inquiry could be undertaken with a view towards clarifying the medical opinions of the medical reviewers noted above and request they use the correct legal standard when discussing whether pes planus clearly and unmistakably preexisted service, whether pes planus was clearly and unmistakably aggravated during service, or whether it is at least as likely as not that pes planus was incurred during service. However, the Board finds that would only prolong adjudication of this claim from an elderly Veteran who began his service when the Korean War ended and has been retired from service now for 37 years, especially in view of the fact VA has been unable to secure an adequate medical opinion on the pes planus issue from three different VA examiners. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the notation of pes planus found on his service retirement examination is sufficient to provide proof of a relationship between the Veteran's pes planus disability and his period of active service. Resolving reasonable doubt in favor of the Veteran, the Board finds that a pes planus disability was incurred during service and the claim for service connection for bilateral pes planus is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also notes that service connection is not warranted for any other foot disability diagnosed in the July 2013 VA examination. While the Board has criticized the July 2013 VA examiner for an inadequate medical opinion as to the pes planus issue, it notes she thoroughly examined the record and provided specific reasons why service connection on a direct, secondary, or presumptive basis is not warranted for the other disorders of the feet. For example, she found no objective evidence of degenerative joint disease in the feet on any post-service X-ray study. She also explained that bilateral hallux valgus and metatarsalgia were not seen in service or in an August 1978 VA examination and were not diagnosed until 1983, or seven years after discharge. Finally, bilateral hammertoes were not diagnosed until 2010 by a VA podiatrist. ORDER Service connection for bilateral pes planus is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs