Citation Nr: 1334446 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-20 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for an acquired bilateral foot disorder, to include pes planus and fractures of the right and left feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cheyenne, Wyoming (RO). FINDING OF FACT The evidence of record does not demonstrate that the Veteran's current bilateral foot disorder is related to his active duty service. CONCLUSION OF LAW An acquired bilateral foot disorder was not incurred in or aggravated by active military service, nor may it be presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1110, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3,306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's May 2005, October 2011, and March 2013 letters advised the Veteran of the foregoing elements of the notice requirements. The 2011 and 2013 letters also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. While the Board recognizes that complete notice was not sent to the Veteran prior to the initial adjudication of the claim, it was followed by readjudication, most recently via the August 2013 supplemental statement of the case, with an opportunity for the Veteran to respond. Accordingly, with these letters and subsequent readjudication of the claim, the RO effectively satisfied the notice requirements with respect to the issue on appeal. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA provided the Veteran with a VA examination in January 2009 to determine the current nature of his bilateral foot disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). This medical examination was only partially adequate in that it did not address the etiology of the claimed disabilities on the basis of aggravation. As it is the Board's duty to ensure adequacy of evidentiary development such as this, it remanded the matter for additional examination in October 2011. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded additional examination in November 2011, however, the opinion was similarly deficient. The Board again remanded the matter in February 2013 and July 2013, after which addendum opinions were obtained in April 2013 and August 2013, respectively. Neither the Veteran, nor his representative, have indicated that the VA examination provided was inadequate. Moreover, the Board finds that the January 2009 and November 2011 examination reports, in combination with the February 2013 and July 2013 addendums, are adequate. These reports and opinions were based on a complete review of the Veteran's claims file, an interview and examination of the Veteran, and provide sufficient explanation and rationale for the conclusion that the Veteran's bilateral pes planus is a congenital disability that was not aggravated by service, and the conclusion that his bilateral foot arthritis and plantar fasciitis are conditions that are the natural progression of his pes planus and are also not related to his service. 38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. During the pendency of this appeal, the regulation governing the presumption of soundness and aggravation was revised, effective May 4, 2005. See 70 Fed. Reg. 23, 027-29 (May 4, 2005) (codified at 38 C.F.R. § 3.304(b)). However, the portion of the regulation that was changed is inapplicable to the Veteran's claim. The applicable portion of this regulation remains as it was at the time of the Veteran's April 2005 claim. Therefore, all due process requirements were met in this regard, and there is no prejudice to the Veteran's claim in proceeding with adjudication of his appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may 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). The Veteran contends that he has a current acquired bilateral foot disorder that is due to his military service. In particular, the Veteran recognizes that he had pes planus prior to service, but contends that it was aggravated during service, which resulted in his current acquired bilateral foot disorder. In particular, the Veteran contends that he was engaged in physical training activity during which he was required to carry a 200-pound downhill man for a certain time. At the time of his April 2008 hearing, the Veteran testified that at the end of this exercise, he experienced sharp pain in his heels, after which he went to the dispensary. He reported that he was taken off of regular duty, as he could not run and that standing was painful. The Veteran could not recall if he had been put on a profile due to this incident. The Veteran also testified that x-rays of his feet were obtained in service and that he was told that he broke his heels. At other times during the course of this claim, the Veteran reported that someone told him that he had "cracked heels" at that time. The Veteran, therefore, has recognized that he had pes planus upon entry into service, but also contends that he was injured in service, which aggravated his preexisting pes planus and caused a current acquired bilateral foot disorder. The Veteran's service treatment records include his March 1969 pre-induction examination, which confirms that he entered service with a notation of bilateral pes planus. He was noted to have arch supports. During service, the Veteran's service treatment records show that in May 1969, he reported to the dispensary, at which time the examiner noted pes planus and further noted that the Veteran had his own arch supports which he desired to use. The following month, clinical notes show that he was prescribed "1) Hydra; 2) Ace wrap." Another June 1969 report shows that the Veteran was seen related to his Achilles, but there is no indication of a diagnosis related to his feet. There is no evidence, x-ray or otherwise, of any fracture related to either foot during service. Nonetheless, the service treatment records establish that the Veteran entered service with preexisting pes planus, and that during service, he received treated in May 1969 for pes planus. The Veteran's January 1971 separation examination is without notation of any abnormality related to the feet and with no indication of pain or any other symptom. At the time of separation, the Veteran reported that he was in good health. Following service, in June 2000 the Veteran sought treatment related to right foot pain and swelling. Follow-up notes show that after treatment with medication, the right foot was significantly improved, with swelling down 50 percent. Tenderness was observed. The treatment notes confirm that the Veteran reported at that time that he had "significant pes planus since childhood." There was no indication in this record that the Veteran reported any incident in service, or reported any aggravation or worsening of that pes planus during his active duty military service. A July 2000 follow up note shows that this treatment was for gouty arthritis, and that orthotics were prescribed to decrease trauma to the subtalar joint. He twice visited a physical therapist in July 2000 two times and a September 2000 discharge note shows that he sought no further treatment after July 20, 2000, and was discharged. Thus, following service, the first indication of arthritis was in records dated in July 2000, nearly thirty years following his separation from active duty military. At the time of his April 2005 claim, the Veteran reported that his foot disability began in 1969, but he gave no information related to treatment at any time following service. An April 2008 private podiatrist's report showed that the Veteran was experiencing heel and ankle pain, bilaterally. The Veteran reported that he "has had the pains ever since he injured his feet while in the armed services" and that he "had been treated for the injury but has had problems ever since." X-rays at that time revealed "significant arthritic build up on the dorsal aspect of the talonavicular joint bilateral." The assessment was plantar fasciitis, as well as osteoarthritis. The podiatrist, M. D. M., D.P.M., confirmed that the opinion provided was based upon the report by the Veteran that he injured both feet while in the military. Dr. M. opined that based upon the examination of the Veteran's feet, and the notation of arthritis, and if the Veteran did not have a history of pes planus prior to service, then it was "most likely" that the injury to his heels in service could have caused his arches to collapse and for him to experience the condition he was currently experiencing. In this case, however, as noted above, the Veteran's pes planus did exist prior to service. Dr. M. also opined that the arthritis in the Veteran's talonavicular joint was an indication that there has been a lot of stress placed on his feet and arch, and that the Veteran's arthritis "could have been started when he injured his feet in the service and then made to carry a person weighing over 200 pounds." On these bases, Dr. M. concluded that the Veteran's condition was "as likely as not" to have been a result of injuries received while on active duty in the armed services. This opinion, however, is of limited, if any, probative value. In particular, Dr. M. did not have the service treatment records available, which do not show any fracture injury in service, or any indication of arthritis at the time of service. Accordingly, Dr. M.'s opinion was based on an inaccurate factual premise. Accordingly, this opinion must be rejected as not reliable and hence not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The examiner also failed to discuss the absence of symptoms related to the Veteran's feet after May and June 1969 until the time of his 2000 treatment, to include the notation of normal feet with no reported symptoms at the time of separation from service in 1971. For these reasons, the April 2008 positive nexus opinion is of no probative value in this analysis. At a VA examination in January 2009, the Veteran reported that his current symptoms included pain in his feet, ankles and heels, that he had experienced continuous problems with his feet since childhood, and that he had never been able to run well. The Veteran reported to the examiner that the onset of the type of pain that he currently had was when he "broke both heels" during basic training while carrying a 200-pound soldier 50 to 100 yards downhill on a hard surface. He reported that in addition to this incident, he experienced additional stress on his feet during service due to steel supports being unavailable to him in the shoes he was required to wear in service. Physical examination confirmed bilateral flatfoot deformity, with no pain on manipulation or deep palpation. X-rays were reported as noting "no definite plain film evidence of acute, subacute, or remote fracture, subluxation, or frank dislocation." The examiner diagnosed bilateral, congenital pes planus; bilateral pes planus morphology, including bilateral valgus angulation; and mild degenerative tibiotalar, talonavicular, and intertarsal arthropathy, bilaterally. The examiner went on to state that the Veteran's "bilateral pes planus, with flatfoot deformity, was not the result of or aggravated by military service. It is a congenital condition requiring treatment at age 4." The examiner also opined that the current heel pain was "less likely as not" due to an in-service heel fracture, as the service treatment records do not show a heel fracture and current x-ray does not show evidence of an old fracture. The examiner suggested that the Veteran's recollection of being told that he had "broken heels" may not have actually referred to a literal fracture. Finally, the examiner indicated that the Veteran's mild arthritis was most likely caused by, or the result of, the congenital pes planus. In May 2009, R.C.S., D.P.M., submitted a handwritten statement indicating that the Veteran was seen for examination and treatment and that his "foot condition could have been aggravated by his military service or likely caused by service." This statement included no indication that the podiatrist reviewed the Veteran's service treatment records or post-service medical history, is based on inaccurate facts, and provided no rationale, and therefore is of no probative value. Reonal, 5 Vet. App. at 461. Because the VA examiner failed to provide a basis for the opinion that the Veteran's congenital pes planus was not aggravated during service, and because the May 2009 private podiatrist's opinion was without rationale, the Board remanded the Veteran's claim in October 2011 for a new examination and opinion. This examination was obtained in November 2011. This examiner also confirmed the Veteran's pes planus and arthritis. The examiner also noted that the Veteran entered service with pes planus, and noted his contention that his heels were fractured in service, although noting that there was no documentation of such in the service treatment records. The Veteran suggested that he was treated only with wraps and rest and the examiner noted that it was unlikely that this was a true fracture, also noting that more current x-rays show no sign of an old fracture. The Veteran also reported to the examiner that following service he was active and would undergo activities such as skiing, but that he no longer participated in any such activities. The examiner concluded that it was "at least as likely as not" that the current bilateral foot condition was the natural progression of the congenital pes planus for someone who had this condition for almost sixty years. In an April 2013 addendum, the VA examiner also confirmed that the Veteran did not have a current bilateral foot disorder other than pes planus that was incurred in or aggravated by active duty. The examiner noted that plantar fasciitis, diagnosed earlier in the record, was a natural progression of pes planus and manifested 35 years following the Veteran's service, and thus, was not considered aggravated during service. The examiner also confirmed that while gouty arthritis can cause foot pain, it is unrelated to pes planus. The Board found that this examiner failed to discuss whether the Veteran's pes planus was a congenital condition that was aggravated by a superimposed disease or injury in service, and remanded the matter again in July 2013. In August 2013, the VA examiner that conducted the prior examination submitted into the record an addendum report further discussing the etiology of the Veteran's bilateral foot disorder. The examiner confirmed that the Veteran's pes planus had existed since age four and was, therefore, congenital. The examiner also noted the Veteran's report of injury in service, to include his allegation of fractured heels, but again noted that current x-rays show no evidence of a prior fracture. The examiner also noted the in-service treatment in June 1969 related to the Veteran's Achilles and pes planus, with treatment with water and wraps. The examiner confirmed that there is "nothing about any of these entries that suggests a significant injury such as a calcaneal fracture." The examiner also confirmed that upon separation from service, there was a general report that the Veteran was in good health, with no notation related to the feet. The examiner explained that pes planus is an abnormal structural conformation of the foot, which over time leads to premature degeneration of the joints of the feet, and also places abnormal and increased stress on the connective tissues of the feet, particularly in the plantar fascia. As a result, according to the examiner, patients with pes planus are at increased risk of developing degenerative arthritis and plantar fasciitis. The examiner confirmed that it was "likely" that the Veteran's confirmed arthritis and plantar fasciitis developed due to the pre-existing pes planus. As to whether the pes planus itself was aggravated during the Veteran's service, the examiner indicated that because the Veteran's separation examination was normal, his military service did not cause the arthritis or plantar fasciitis to develop, nor did it aggravate pes planus beyond its natural progression. The examiner also noted that the only positive opinions of record were based upon the Veteran's report that he fractured his heels in service, which is not supported by the medical documentation of record. After a thorough review of the evidence of record, the Board concludes that service connection for an acquired bilateral foot disorder is not warranted. There is a current diagnosis of pes planus, arthritis, and plantar fasciitis. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The osteoarthritis is shown as diagnosed in 2000, and not within one year after service discharge in 1971; therefore, service connection is not warranted on a presumptive basis. See 38 U.S.C.A. § 1101, 1112, 1113; see also 38 C.F.R. § 3.307, 3.309. The Veteran's service treatment records include his March 1969 pre-induction examination, which confirms that he entered service with a notation of bilateral pes planus. See 38 U.S.C.A. § 1111 (West 2002). Accordingly, the evidence shows that the Veteran had bilateral pes planus that existed prior to his service. If a disorder is found to pre-exist military 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; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active military 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). Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). There is no competent medical evidence establishing that the Veteran's pre-existing pes planus underwent a permanent increase in severity during service. There is one notation suggesting the use of water and wraps, and also confirming his need for inserts in his shoes in 1969. There is no suggestion of the fracture that he contends occurred, and the VA examiner clearly noted that the remaining evidence in the service treatment records is negative for any further complaints or treatment for pes planus. Moreover, at separation in 1971, the Veteran made no mention of any abnormality of the feet or symptoms related to his pes planus. The VA examiner in 2013 specifically found that the Veteran's pre-existing (congenital) pes planus was not aggravated by his military service noting that any flare-up that may have been exhibited in 1969 was resolved by the time of his separation in 1971. There was also no treatment for many years following service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that aggravation in service may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Thus, the medical evidence of record shows that the Veteran's pre-existing pes planus was not aggravated by his military service. Furthermore, the Veteran's currently confirmed arthritis and plantar fasciitis are noted to be direct residuals of the pes planus, and not to have been incurred during the Veteran's active military service. These conditions were noted approximately thirty years following service and there is no evidence of treatment between the Veteran's in-service symptoms and the remote diagnoses. In 2013, after reviewing the Veteran's claims file, conducting an interview of the Veteran, and performing a physical examination, the VA examiner submitted an addendum report opining that the Veteran's arthritis and plantar fasciitis are part of the natural progression of the pes planus, and were not incurred during service. Although the Veteran believes he fractured his heels in service, the Veteran's statements regarding the diagnosis and etiology of his bilateral foot disorder, including whether it was a preexisting condition aggravated during active service or whether he experienced a heel fracture, are not competent evidence of an actual fracture or of a nexus between any current disorder and his military service. Medical diagnosis and causation involves questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Because the Veteran is not a physician, his statements are not competent evidence that either he had fractured heels during active duty service, or that any current bilateral foot disorder is related to active duty service. See Barr, 21 Vet. App. at 307. Finally, with regard to the Veteran's contention that he experienced symptoms in service, which have continued and worsened ever since, the Board will address his allegation of chronicity and continuity. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established in service, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service, or in the presumptive period, is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) . Service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The current evidence of record includes a diagnosis of arthritis, which is a chronic disease under 38 C.F.R. § 3.309(a). However, as discussed above, the Veteran's pes planus preexisted service and arthritis was first noted in 2000, many years after service. The one notation of treatment with water and wraps, were it to be indicative of a manifestation of arthritis, is not shown to have continued since service. The Veteran's separation examination was without report of symptoms, the Veteran reported activities such as skiing after service, and arthritis was not noted until, at the earliest, 2000, which is twenty-nine years following the Veteran's discharge from service. Thus, there is no basis for a finding of continuity for this chronic disease. Moreover, the Veteran's lay assertions of problems with his feet over the years cannot be the basis for a diagnosis of arthritis at any time prior to 2000 when x-ray examination, utilized by competent medical professionals as a diagnostic tool, confirmed the existence of arthritis in the Veteran. Accordingly, service connection cannot be established on the basis of continuity of symptomatology of arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the absence of competent medical evidence that the Veteran's current bilateral foot disorder was incurred in or aggravated by his active military service, the preponderance of the evidence is against the Veteran's claim for service connection. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for an acquired bilateral foot disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs