Citation Nr: 1334948 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-42 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for pes planus (flat feet). WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from July 1945 to January 1947. The appeal comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By an October 2011 decision, the Board reopened a previously denied claim of service connection for bilateral pes planus and remanded the underlying service connection issue for further evidentiary development. Specifically, the Board requested that the agency of original jurisdiction (AOJ) provide the Veteran with appropriate Veterans Claims Assistance Act of 2000 notice, and afford the Veteran a VA examination to determine the nature, extent, and etiology of the Veteran's pes planus. By an October 2011 letter, the Appeals Management Center (AMC) provided the Veteran with a VCAA notice letter. An examination was completed in November 2011, and copies of the VA examination report, as well as a July 2012 addendum opinion, have since been associated with the Veteran's claims file. The AMC subsequently readjudicated the claim in a January 2013 Supplemental Statement of the Case (SSOC). The Board then issued another remand in March 2013 so that the Veteran could be afforded a hearing. The Veteran and his wife appeared at a hearing with the undersigned in July 2013. Thus, the AOJ has complied with all of the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The transcript of the Veteran's hearing in July 2013 by videoconference technology has been associated with the virtual VA claims file. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).) FINDINGS OF FACT 1. The Veteran entered military service with pes planus. 2. Clear and unmistakable evidence shows that the Veteran's pes planus did not worsen in service beyond a normal progression. CONCLUSION OF LAW The Veteran does not have pes planus that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in August 2008 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at a July 2013 hearing before the undersigned. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Under governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002). For purposes of aggravation of a preexisting injury, such aggravation will be said to have occurred where there is an increase of disability during active military, naval or air 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 (West 2002); 38 C.F.R. § 3.306 (2013); Paulson v. Brown, 7 Vet. App. 466, 468 (1995). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during wartime service. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). In addition, temporary flare-ups, even in service, will not be considered sufficient to establish an increase in severity unless the underlying condition, as contrasted to the symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991), Browder v. Brown, 5 Vet. App. 268, 271 (1993); see also Daniels v. Gober, 10 Vet. App. 474, 479 (1997). 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The initial question is whether the Veteran's claimed pes planus was present prior to service. In Crowe v. Brown, 7 Vet. App. 238 (1994), the Court indicated that the presumption of soundness attaches only where there has been an entry medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. The Court added that the regulation provides expressly that the term "noted" denotes only such conditions as are recorded in examination reports, and that history of pre-service 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) (2013). The service records include an entry examination report dated in July 1945 with a finding of "pes planus 2nd degree, asymptomatic ND." (The "ND" in this context is generally interpreted as "nondisabling." See Medical Abbreviations: 12,000 Conveniences at the Expense of Communications and Safety 171 (8th ed., 1997).) Thus, the Veteran's pes planus was specifically noted at entry, and consequently is found to have pre-existed the Veteran's period of military service. The Veteran's service treatment records include some treatment for acute disabilities, but no treatment for the Veteran's feet. The Veteran's service separation examination report dated in January 1947 shows a finding of "normal" in the box to indicate no disability of the feet. The Veteran's service Form WD AGO 100 indicates that the Veteran's military duties consisted of clerical office work. In his January 2004 claim, the Veteran asserted that his pes planus had its onset in 1945, and that he received treatment for the condition between 1993 and 2004. VA treatment records dated from 2000 through 2004 contain records of podiatric care revealing a myriad of foot difficulties associated with both musculoskeletal and nail or dermatological conditions. Dr. B.M. indicated in an undated note that he had treated the Veteran from March 1999 to December 2000 for bunions, but had not treated him for pes planus. He further stated that the Veteran apparently had orthotics made in the past. Other private treatment records submitted by the Veteran in May 2004 were inclusive of various treatment, scan, and testing records of the previous several years, revealing degenerative joint conditions of the feet, as well as soft tissue conditions of the feet and ankles. Additionally, there has been treatment in recent years for additional foot pathologies, including conditions identified as secondary to deformity of the feet associated with the Veteran's bilateral pes planus. A July 2008 letter from a private podiatrist, Dr. M.S., indicated that he had treated the Veteran for the past several years and that the Veteran had been diagnosed with "arthritic changes of the midfoot, marked right Hallux Abducto Valgus and Pes Planovalgus feet." The podiatrist reiterated the Veteran's self-report that although his conditions of the feet had gradually worsened, they had begun in military service. In another letter by Dr. M.S. dated in July 2011, the podiatrist asserted that the Veteran's current condition of the feet with chronic pain could have been averted with proper orthotics. However, Dr. M.S. did not attribute such to an in-service event, injury, disease or problem and provided no link between the Veteran's current disability and his eighteen months in service more than fifty years before. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. at 23 (medical opinions which are speculative or inconclusive in nature cannot support a claim). In this context, the Veteran has asserted, in effect, that the military's failure to afford him appropriate care for his symptomatic pes planus in service ultimately resulted in his current foot conditions. In a July 2008 statement, the Veteran indicated that during his military training he had problems wearing boots and was accordingly issued regular Army shoes. He added that he had problems with his feet "through the years" with continued deterioration, resulting in treatment at VA, including with molded shoes. In an August 2008 statement he averred that there were two incidents during service involving difficulties associated with his pes planus: honor guard parade participation in September 1945, which resulted in stress on his feet for which he was told to soak his feet and was given aspirin, and basic training in February 1946, which resulted in difficulties with stress on his feet for which he was issued different shoes and assigned to an office job. He also asserted that he had problems with his feet ever since those two incidents. Other lay statements submitted in July 2008 included a statement by an older brother, a close friend since junior high school, and the widow of a friend from high school. These laypeople all asserted knowledge of the Veteran's athletic achievements in high school, prior to entering the military. His older brother indicated that on occasions after the Veteran's return from service he had noticed changes in the Veteran's stride and walking. He also expressed knowledge of VA-issued orthotics over the years. The Veteran was afforded a VA examination in November 2011. The Veteran was diagnosed with bilateral pes planus and hallux valgus. The Veteran described his medical history, indicating that he started having foot pain from marching and was told to soak his feet. He reported that his feet worsened and he was told that he had flat feet. He was relieved of marching duty and was assigned to clerical duties. The examiner indicated that the Veteran's pes planus clearly and unmistakably pre-existed service and was aggravated beyond the natural progression. The examiner indicated that the pre-service condition was aggravated while in-service, becoming worse due to the aging process, his occupation and possibly poor foot wear. The examination report was authored by a Doctor of Nursing Practice (DNP) and co-signed by a physician. The RO requested an addendum for the November 2011 opinion. In July 2012, the physician who co-signed the November 2011 opinion authored an examination note. The examiner indicated that the claimed condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond the normal progression by an in-service injury, event or illness. The examiner indicated her rationale as being, 1) the service treatment records indicate asymptomatic second degree bilateral pes planus on entrance; 2) the exit physical noted second degree bilateral pes planus, strong to test; 3) there was no indication of foot pain on the plantars on the exit physical, which would have indicated signs beyond normal progression. The examiner also noted that the Veteran was given a desk job that would have prevented him from developing further foot deformities beyond the natural progression. Also, the reviewer noted that foot pain during marching was a natural result of flat feet or normal feet if the proper shoes are not worn. The examiner went on to determine that the Veteran's hallux valgus and hammer toes were not secondary to the pes planus. The examiner also noted that there was no evidence of these foot deformities on his exit physical. She reiterated that private treatment records show his foot condition many years after active service, noting various records from 1999 to 2007 indicating foot abnormalities. There are three medical opinions in the claims file. The medical opinions consist of opinions from a private physician and two VA clinicians. In this regard, the Board observes its duty to assess the credibility and weight to be given to the evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board finds the most recent opinion of the VA physician to be more probative as she had an opportunity to review the Veteran's claims file, including the opinion of the private physician and the DNP she supervised, and provided a thorough explanation for her opinion. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history and unsupported by clinical findings is not probative); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional). The Veteran believes that his pes planus was aggravated by active service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, the Veteran is competent to comment on the flatness of his feet and the symptoms he experienced in service and since. Falzone, supra. Nevertheless, the Board must weigh his reports against the remainder of the record. Although the VA DNP and private care provider indicate that there was a worsening of pes planus during the Veteran's military service, the Board finds that the service records themselves and the VA physician's conclusions to be more convincing. The Veteran had second degree pes planus at entry and the exit examination did not reveal any worsening of that degree, and because there was no indication in the service records of any need for care or special treatment, the Board finds that there was no worsening of the problem during military service. The VA physician explains her opinion, giving cogent reasons for the conclusion that there was no worsening during service beyond normal progression. Indeed, the service record itself, as noted above, does not reflect that there was any worsening-even that which might have been due to normal progression. Consequently, the Board gives more weight to this examiner's conclusion and less to the Veteran's own assessment and those of the private care provider and VA DPN. On balance, the evidence does not support the Veteran's claim. ORDER Entitlement to service connection for pes planus (flat feet) is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs