Citation Nr: 1330251 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-20 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from August 1987 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2010, the Veteran testified at a personal hearing at the RO before the undersigned Veterans Law Judge. The Board previously remanded this matter in February 2011 to obtain a VA examination. The development requested in the February 2011 remand has been completed to the extent possible, and no further action is necessary to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Pes planus was noted on entry into service, and is shown to have permanently increased in severity during service. CONCLUSION OF LAW The criteria for service connection for pes planus are met. 38 U.S.C.A. §§ 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA 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 and 3.326(a) (2012). In light of the grant of service connection for pes planus, no further discussion of the VA duties to notify and assist are necessary. II. Analysis of Claim Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. § 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who served for at least six months during a period of war or during peacetime on or after January 1, 1947, is presumed to have been in sound condition when examined, accepted and enrolled in service, except for defects noted at the time of entrance, 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. § 1132; see VAOPGCPREC 3-2003 (July 16, 2003). A preexisting disease will be considered to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) (2012). If a pre-existing 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). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). See also Wagner v. Principi, 370 F.3d at 1096 (Fed. Cir. 2004). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran asserts that pes planus was aggravated during service. At a hearing in December 2010, the Veteran testified that the training boots he wore in service made his feet worse. The Veteran testified that he was put on profile during service and was fitted with orthotic inserts. He testified that he had has problems with his feet, including pain, ever since service. He indicated that he was not always able to seek medical attention for his feet since service, but indicated that he has had unremitting symptoms since service. The Veteran had active duty service from August 1987 to March 1989. In this case, the enlistment examination in August 1987 noted mild pes planus. Because pes planus was noted upon entrance into service, the Board finds that the Veteran had a preexisting disability. Having shown that pes planus pre-existed service, the next step is to determine if the Veteran's pre-existing disability was aggravated in service. Service treatment records reflect treatment for pes planus. A June 1988 entry in the service treatment records reflects that the Veteran complained of pain and discomfort in the soles of his feet. A provisional diagnosis of mild pes planus was noted. In August 1988, the Veteran was seen in sick call and reported that his feet were still hurting. He was diagnosed with symptomatic pes planus. A September 1988 entry in the service treatment record reflects that the Veteran was fitted with custom-made orthotics. The Veteran was seen for a follow-up in September 1988 and reported continued pain on the plantar aspect of his feet. He reported that custom-made orthotics made the pain worse. A physician indicated that the Veteran would be referred for medical board for discharge. A medical board report dated in September 1988 reflects a diagnosis of pes planus, existing prior to service entrance, service aggravated. A February 1989 entry noted that the Veteran was being separated due to painful flat feet. A VA outpatient treatment record dated in November 1989 noted congenital pes planus. The record noted that the Veteran was medically discharged because he could not work on a flight deck of a carrier in the required footwear. The record noted that the Veteran experienced no discomfort in his feet as long as he wore sneakers. The Veteran reported that he tried to wear arch supports unsuccessfully. He reported that he was able to walk 4 to 5 hours before experiencing any discomfort in his feet. Physical examination revealed bilateral second degree pes planus. There was no tenderness or swelling of the feet. The Veteran was able to toe and heel walk equally. Impression was bilateral second degree pes planus. A private treatment record dated in March 2011 reflects that the Veteran requested a consultation for chronic pain in both feet. The Veteran reported that he was on his feet for a number of hours daily. He reported that his pain was significant in the morning when rising from bed. A podiatrist diagnosed pes planovalgus deformity bilaterally. In March 2011, the Veteran had a VA examination of his feet. The VA examiner indicated that the claims file was reviewed. The Veteran reported that, shortly after boot camp, he sought medical evaluation and care. He reported that he was treated with orthotic inserts. He reported that he was placed on medical hold and was eventually separated from the military, primarily due to flat feet. The Veteran reported that, after leaving service, he was able to self-treat with good shoes and over the counter inserts. He reported that he sought medical evaluation in 2008 and was treated with orthotics and good shoes. The VA examiner opined that pes planus was "less likely than not" aggravated by service. The VA examiner explained that mild pes planus was noted upon enlistment. The VA examiner noted that the Veteran's service treatment records reveal multiple medical evaluations and treatment for bilateral pes planus beginning in September 1988 until his discharge from the military in March 1989. The VA examiner noted that there was a medical evaluation board from September 1988 which listed flexible pes planus, service aggravated, as the referred condition for the medical evaluation board. The VA examiner noted that flexible pes planus is diagnosed by the presence of an arch when the patient is non-weight-bearing or standing on the toes. The VA examiner indicated that, in the vast majority of cases, it remains asymptomatic and does not require further evaluation or treatment. The VA examiner indicated that, in the minority of cases that it does cause pain, the symptoms are generally activity-related and can be treated with activity modification and/or orthotics. The VA examiner indicated that there is no dispute that the Veteran was evaluated and treated for flare-up of his pes planus in service and was evaluated by the medical evaluation board. The VA examiner indicated, however, that there are no medical records from the time that the Veteran left service in 1989 until 2008. The VA examiner stated that, during all of that time, there was no evidence of a flare-up or chronic disabling condition related to pes planus. The VA examiner opined that the absence of medical evaluation or treatment in the intervening 19 years would indicate that the Veteran's in-service symptomatology was more likely a temporary or intermittent flare-up of his pre-existing pes planus; but not a permanent aggravation. After a full review of the record, including the medical and lay evidence, the Board finds that service connection for pes planus is warranted. The service treatment records show that pes planus pre-existed service and that the Veteran was treated on numerous occasions for symptoms related to pes planus during service.. The Medical Board report shows that it was determined that pes planus was aggravated by his service. The Board finds that the March 2011 VA opinion is of no probative value. The examiner concluded that there was no permanent aggravation of pes planus on the basis that there were no medical records from 1989 until 2008 showing flare-up or chronic disabling condition. The examiner did not consider the Veteran's lay statements that he has had unremitting symptoms of pes planus since service. The burden to show no aggravation of a pre-existing disease or disability during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The Veteran is competent to report matters within his own personal knowledge, such as the fact that the pain and symptomatology he is currently experiencing is the same as that from the disability for which he was found physically unfit for service because of service aggravation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Board finds that the weight of the evidence demonstrates that the Veteran's pes planus preexisted and was permanently aggravated by service and service connection is warranted. . ORDER Service connection for pes planus is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs