Citation Nr: 1338087 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 04-27 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from October 1975 to April 1981 with subsequent service in the Army Reserve and Oklahoma National Guard. In December 2002, the RO denied the Veteran's claim of entitlement to service connection for a bilateral foot disorder, claimed as bilateral hallux rigidus. In October 2006, the Board of Veterans' Appeals (Board) confirmed and continued the RO's December 2002 rating action. The Veteran disagreed with that decision and appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2007, the Court vacated the Board's October 2006 decision and remanded the matter to the Board for further development and readjudication consistent with the Court's decision. In March 2009, June 2010, and June 2012, the Board remanded the case for further development. The Veteran testified before the undersigned in August 2012. Copies of the respective transcripts have been associated with the claims file. Subsequently, the Veteran submitted additional evidence and waived initial RO consideration. See 38 C.F.R. § 20.1304(c) (2013). In April 2013, the Board forwarded the Veteran's claims file for a medical opinion by an Independent Medical Expert (IME). The case is once again before the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The record contains clear and unmistakeable evidence demonstrating that the Veteran had a bilateral foot disability that existed prior to her entry to active service. 2. The record does not contain clear and unmistakeable evidence demonstrating that the Veteran's bilateral foot disability was not aggravated by her active service. 3. The Veteran's current bilateral foot disability is related to her period of active service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability have been met. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In light of the favorable determination being reached in regards to the Veteran's bilateral foot disability, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A Veteran is considered 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 demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, 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." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096) (emphasis added). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. The burden is not met by finding "that the record contains insufficient evidence of aggravation." See id. If a Veteran is presumed sound at service entrance and VA is unable to rebut the presumption, a disease or injury that manifested in service is deemed incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012) (noting that such a finding establishes the second element of service connection). However, even if an injury or disease is deemed to have been incurred in service pursuant to application of the presumption of soundness (or by a finding that the injury or disease was actually incurred in service), a Veteran must nonetheless establish by a preponderance of the evidence that a current disability is related to the in-service injury or disease. Gilbert, 26 Vet. App. 48 (citing Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the Veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.") Congenital or developmental defects are generally not considered a disease or injury for the purpose of service connection. 38 C.F.R. § 3.303(c), 4.9 (2013); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, the VA Office of General Counsel held that service connection may be granted for a congenital disorder on the basis of in-service aggravation. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990) [a reissue of General Counsel Opinion 01-85 (March 5, 1985)]. In that opinion, it was noted that a disease considered by medical authorities to be of congenital, familial (or hereditary) origin by its very nature preexists claimants' military service, but that service connection for such diseases could be granted if manifestations of the disease in service constituted aggravation of the condition. See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); but see VAOPGCPREC 67-90 (July 18, 1990)(finding that "service connection may be granted for hereditary diseases which either first manifest themselves during service or which preexist service and progress at an abnormally high rate during service."). To the extent the congenital defect is not a disease, service connection may still be granted for any superimposed disease or injury. In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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). Background Service treatment records show that that the Veteran denied a history of foot trouble when she was examined for active duty enlistment in September 1975, and that her feet were at that time noted to be normal. In October 1975, she complained of pain in her left ankle during her second week of basic training. Range of motion was within normal limits and there was no effusion. In November 1975, she returned with complaints of left ankle pain following a practice run in her sixth week of basic training. The examiner noted that she might have some slight swelling to the lateral aspect of the ankle. The assessment was that she was worried about her training test the following day. Clinical evaluation of the feet was normal on examination for reenlistment in January 1978 (incorrectly dated January 1977). In May 1980 and March 1981 Reports of Medical History, the Veteran denied foot trouble, but noted a history of swollen or painful joints and broken bones. No additional comments as to any orthopedic disorders were provided. Clinical evaluation of the feet was normal on annual examination in May 1980 and on separation examination in March 1981. As noted previously, the Veteran was a member of the U.S. Army Reserve from early 1981 to August 1984. However, no service treatment records from that time are available. During August 1981 and September 1984 VA medical examinations, the appellant voiced no complaints relating to her feet. Service records from the Army National Guard show that the Veteran was ordered to full-time training duty in Chicago from December 11 to 15, 1984. A billing statement from a Dr. B, dated in January 1985, thereafter reflects charges for foot x-rays. In April 1985 correspondence, Dr. L, noted that the Veteran was under his care for right foot pain and was unable to do any prolonged standing, walking, or marching until further notice. Later in April 1985, Dr. L noted that the Veteran reported a five-month history of right foot pain and a lengthy history of forefoot pain apparently related to wearing high heels and, on a subsequent occasion, wearing ballet shoes during some sort of musical performance. The Veteran reported that the pain resolved, then recurred intermittently, and seemed to have settled primarily in the area of the first metacarpophalangeal joint. It was noted that the pain was primarily beneath the great toe joint, and that she found that she walked on the outside of her foot. X-rays revealed some marginal osteophyte formation about the metatarsal head and neck. The physician's clinical impression was that the Veteran had early hallux rigidus. Still later in April 1985, Dr. L noted that the Veteran had tried to go through with her reserve training without the hiking, but was unsuccessful and had a great deal of swelling in the area of her metatarsophalangeal (MTP) joint. It was noted that the pain still seemed to be more in the plantar aspect despite the presence of some tender osteophytes over the dorsum of the joint. A tangential view of the joint showed some cystic changes with the tibial and the fibular sesamoid beneath the MTP joint. The joint space itself, however, was not particularly narrowed and there was no remarkable osteophyte formation. It was noted that the Veteran's forefoot pain continued to be a challenge, and that it was not entirely clear what component of her discomfort was coming from the sesamoids and what was coming from her hallux rigidus. Insurance forms pertaining to a Dr. D.L., dated from April to June 1985, appear to reflect treatment for hallux abducto valgus, unguis incarnatus, and compensatory pronation. However, the actual clinical records from Dr. D.L. are not available. A November 1985 Army National Guard Enlisted Evaluation Report notes that the Veteran did not take her physical training test during the evaluation period because of restrictive foot problems. On an Army National Guard retention examination in November 1985, the Veteran described foot injuries in 1984 which resulted in arthritis in the bilateral first metatarsal joints. The physician's summary in the medical history portion of the examination report included findings of foot pain from excessive use over the past two years, questionable hallux rigidus, and progressive planovalgus. However, on examination, her feet were described as normal. Also in November 1985, Dr. R, noted the Veteran had been seen in April 1985 complaining of discomfort in her feet, with a history of having strained them several months earlier, and that the diagnosis at that time had been acute cellulitis. On subsequent evaluation in November 1985, however, it was noted she developed what then appeared to be a periostitis of a chronic nature in her feet. In another November 1985 statement, this one from a Dr. V, it was noted that the Veteran had osteoarthritis of the MTP joint of the right great toe. It was recommended that the Veteran place minimal stress on the great toe, MTP joint, and that she avoid certain exercise, particularly distance running. A December 1985 billing statement from Dr. R, reflects visits on November 1, 3, and 4, 1985, with corresponding diagnoses of acute cellulitis, chronic tendonitis, and fasciitis bilateral feet. In a March 1986 statement, Dr. L recommended light duty for the Veteran at summer camp due to current foot problems. In another letter, directed to the Oklahoma Army National Guard (undated), Dr. L noted that the Veteran could not participate in a two-mile run, male-style pushups on toes, or four-mile marches due to tendonitis in the arch and ankle bone of both feet. In September 1986, the Veteran underwent an Army National Guard examination. It was noted that she had bilateral arch pain to pressure, and palpable left ligamentous laxity of the left ankle, and that her feet were painful even with orthotics. The summary of defects and diagnoses included a finding of markedly symptomatic feet. Service department records show the Veteran was thereafter discharged as medically unfit for retention in November 1986. Billing records from Dr. L reflect that the Veteran continued to receive treatment on a recurrent basis from 1988 to 1998, to include in September 1988, November 1988, September 1990, October 1990, July 1992, September 1993, May 1994, July 1997, and November 1998. However, as noted above, the actual clinical records from Dr. L are not available. Treatment records from Dr. F and Dr. C, beginning in August 1998, and continuing to the present, contain diagnostic assessments that include plantar fasciitis secondary to excessive pronation and forefoot varus; hallux limitus, first MPJ, left foot; degenerative arthritis, DIPJ, third toe, left foot; hallux valgus; hallux abductovalgus deformity; tendonitis and bursitis of the right extremity; capsulitis of the MPJs; and hammertoe with resultant friction keratosis. In an August 2001 report, the Veteran reported that she had been using orthotics for 15 years and that she had incurred several breaks of her toes and ankles. Clinical records and billing statements show that the Veteran stubbed her foot in the area of the DIPJ, third toe, left foot, around 1997; that she sustained a fracture of the right cuboid in March 1999; and that magnetic resonance imaging in December 1999 revealed a comminuted, non-displaced fracture involving the distal right first metatarsal without evidence of cyst formation. On VA fee-basis examination in December 2002, the Veteran reported that problems with her feet began during basic training in 1975. She indicated that she had been treated for foot and ankle pain, swelling, stiffness, and tendinitis many times while in service. She noted that she had been required to run one to two miles in combat boots, and had not been given running shoes. She reported that, after service, she received treatment from Dr. Landrum, a private podiatrist, from 1986 to 1998, who told her she had a ligament problem and advised her not to jog. She stated that she had stopped working as an organist 15 years earlier because it required too much foot work and caused significant pain, and that she could not run or jog with her spouse. The examiner noted diagnoses including hallux limitus, hallux valgus, callosities of the feet, plantar fasciitis, and hammertoes. In correspondence dated in September 2003, Dr. C wrote that the Veteran had severe pronation with hallux valgus and hallux limitus of the first MTP joint, history of treatment of plantar fasciitis, and hammertoe deformities. Dr. C opined that, due to the Veteran's abnormal pronation, her foot structure had a tendency for progressive problems with time. Dr. C felt that, with her type of foot, the Veteran would be prone to developing earlier problems with tendonitises of the foot and ankle, as well as faster progression of bunion and hammertoe deformities. Dr. stated, "Also with prolonged activity use that would put a lot of stress and strain on the patient's foot such as military would have with the patient's physical training and basic training." Dr. C noted that the considerations of that were well documented in the literature regarding that type of foot and the problems that occur with it with military training. In a December 2003 notice of disagreement, the Veteran reported that problems with her feet did not begin until 1975, when she was required to run in ill-fitting combat boots. She stated that at the time she was treated for a left Achilles problem, her feet had also been swollen and that she had undergone several weeks of hydrotherapy. She asserted that, by 1976, at her active duty station, she had been told she would have to bear the pain and that no one would document the problem for her records. During an October 2005 hearing, the Veteran testified that she was in the Army from October 1975 until April 1981, followed by three years of service in the Army Reserves, and then three years of service in the Army National Guard, until 1986. She denied any foot or ankle problems prior to entry into service, but reported that she started to have problems in basic training. She stated that she received treatment for her feet from private doctors during service. She reported that she had a two-week workshop in Chicago, which involved a lot of walking, and that, when she returned, she saw several doctors for her feet, and was given orthotic inserts by Dr. Landrum. She also reported that, during service, her duties included a lot of rehearsing, drilling, ceremonies, and marching in parades. She testified that her current podiatrist, Dr. C, had told her that the stress of basic training started her foot problems because of the congenital structure of her feet. The Veteran's husband testified that his wife had to go to sick call on several occasions during service for ankle and foot problems. In an October 2005 letter, Dr. C stated that the Veteran had been treated in her office since 1998 and that she had severe pronation with hallux valgus and hallux limitus of the first metatarsophalangeal joint, history of plantar fasciitis, and hammertoe deformities. She indicated that she had been asked to review the Veteran's records in regard to her service-related disability, and acknowledged that she had reviewed a portion of her medical file, specifically, the records of October and November 1975 visits, at which time the Veteran was having problems with her left ankle. She added that the Veteran had no history of trauma to that area, but was having tendonitis of the left ankle. Dr. C stated that, while the records did not indicate mechanics present at that time, abnormal pronation is a cause of chronic, recurrent tendonitis. Other records reviewed included reports dated in September and November 1985 and medical correspondence dated in April 1985, November 1985, and March 1986. Dr. C stated that, after reviewing this information, it was her opinion that the Veteran had a genetic condition that was aggravated and worsened by military service with the amount of time on her feet causing progressive bunion and hammertoe deformities. It was noted that the records "showed a progression of the damage that has occurred through the years, with the initial injuries that occurred in October of 1975." On VA examination in March 2006, the Veteran reported that she did not have any problems with her feet growing up, but, during basic training in 1975, she developed pain and swelling in the ankles, feet, and toes after running in combat boots. She added that she had problems with her feet and legs during Reserve and National Guard duty, that she was prescribed orthotics in 1984, and that she continued to use orthotics. The diagnosis following examination was hallux valgus deformity of both feet with bunions. In an addendum, it was noted that x-rays revealed a mild hallux valgus deformity, bilaterally, with hammertoe deformity. The examiner acknowledged review of the claims file and stated that she could not find any evidence that the Veteran had bilateral hallux valgus or hallux rigidus which existed prior to or during service. As such, she opined that this condition developed after discharge from service, and was not incurred or aggravated during service. Dr. F, a partner of Dr. C, prepared a report in December 2008. Dr. F reviewed several records pertaining to the Veteran's claim for service connection, including the October 2005 letter from Dr. C. The assessment following examination was mild lateral metatarsophalangeal joint capsulitis, right foot, secondary to a mild hallux limitus and hallux valgus deformity of the right foot; possible neuroma, third intermetatarsal space; mild plantar fasciitis, secondary to excessive pronation; forefoot varus deformity; asymptomatic calcaneal cyst, left heel; accessory sesamoid bones, longitudinal arch of the right foot, possibly responsible for medial arch pain on the right; asymptomatic accessory bones within the peroneous longus tendon, lateral aspects of both feet, presently asymptomatic; osteopenia; and possibly osteoporosis. Dr. F opined that there was clear and convincing medical documentation of the diagnosis of hallux limitus, hallux rigidus, and progressive planovalgus deformity documented in the Veteran's medical records from the military clinic where she was treated. In support of this conclusion, he referred to a November 1985 service treatment record, an April 1985 report from Dr. L, and a November 1985 letter from Dr. V. Dr. F opined that, based on his examination and review of the records, that it was reasonable to assume that, "the activities and injuries which were well-documented throughout the course of her [the Veteran's] service injured her feet and/or were injured and aggravated by these activities." He acknowledged that Dr. C had described a genetic predisposition to problems in regard to the Veteran's feet; however, he opined that she had a congenital predisposition to problems with her feet, based on the fact that there was a cyst on the calcaneus as well as accessory bones which would have appeared at an early age. He added that it was reasonable to conclude that she may have had a congenital predisposition to foot complaints and problems, but that her feet were certainly aggravated by marches and running in service. He noted that review of her medical records reflected that she was experiencing problems with her feet during the course of her active and Reserve service. The Veteran was afforded a VA examination in July 2009. She denied any congenital problems with her feet, adding that she had no problems with her feet as a young child. She gave a history of initially injuring her feet during basic training when she had to run in combat boots. She indicated that her next injury occurred in the National Guard in December 1984. She added that she had to wear heels and walk a lot and that she went to have her feet evaluated by a physician in January 1985. She described subsequent injuries to her feet, including stubbing her right small toe in 1997, stubbing and fracturing a left toe in August 1998, sustaining an avulsion fracture of the ankle in March 1999, sustaining an avulsion fracture of the right great toe in November 1999, and tripping and aggravating her right great toe in February 2000. The diagnosis following examination was bilateral hallux valgus deformity of the feet with an associated problem of bilateral hallux rigidus. The examiner indicated that there was no documentation of problems with the Veteran's feet during her military career. She opined that hallux rigidus was less likely as not (50/50 probability) permanently aggravated by military service. In providing a rationale for this opinion, the examiner noted that the Veteran had brought in numerous diaries regarding doctor's appointments and physical therapy treatment, but there was no notation in her claims file of any condition or injury to her feet. She added that, since discharge from service, she had been a music instructor, which required her to be on her feet for class. The examiner concluded by opining that her occupation of instructor for 20 years would have more causative factors to cause feet problems than her eight weeks of basic training and occasional qualifying runs during service. The Veteran again underwent a VA examination to evaluate her claimed foot disability in March 2010. The examiner acknowledged review of the claims file and indicated that he assumed the history provided by the Veteran was accurate. He noted that the September 1975 enlistment examination was normal, and that the Veteran was treated for left ankle pain in October and November 1975, with complaints of swollen, painful joints in May 1980 and March 1981. He specifically considered the October 2005 opinion from Dr. C. The Veteran again gave a history of foot, ankle, and lower leg pain associated with running and exercise during basic training. She added that she was treated for bilateral foot and ankle pain in service, and rested her feet from November 1975 to January 1976, with marked improvement. She stated that she experienced intermittent pain with band marching/training during advanced individual training (AIT). She indicated that she was a music instructor until separation in April 1981, after which she spent three years in the Reserves, which involved two-week summer duties with some difficulties. She reported that she then went to the National Guard where she marched in parades with increasing pain for a few days. The Veteran stated that, in December 1984, she participated in a one-week clinic in Chicago which involved a lot of walking in heels, and caused pain in the knees, feet, and ankles for several weeks, adding that she received medical care from several private providers starting in January 1985. The Veteran also described several fractures in her feet, including a 1999 left cuboid fracture, three fractures of the right small toes, a left 4th toe fracture around 2002 or 2003, a left 3rd toe fracture in August 1998, and a right 5th toe fracture in 1997. The diagnosis in regard to the right foot was right foot pain with hypertrophy involving the first metatarsal head, with marginal spurring and joint space narrowing. The examiner opined that this diagnosis was related to the post-service fracture, and not to transient foot pain related to her military service. The diagnosis in regard to the left foot was left foot with a small lucent lesion identified in the left fifth proximal phalanx, likely representing a subcortical cyst. The examiner opined that this diagnosis was also related to post-service trauma and not transient foot pain related to military service. The examiner indicated that he did not find any abnormality consistent with "hallux rigidus" but that any alleged hallux rigidus was less likely as not related to in-service events and did not manifest during military service, but, rather, was at least as likely as not related to the multiple post-service traumatic injuries described by the Veteran, including described fractures occurring from 1997 to 2002 or 2003. He added that none of the above complaints were related to any foot instability, but were all incidental traumatic events unrelated to the alleged in-service foot pain. He went on to opine that hallux rigidus was less likely as not a genetic condition as reported by Dr. C, which was aggravated by military service, adding that he found no evidence of hallux rigidus, and that there was no evidence that hallux rigidus existed prior to the Veteran's service from October 1975 to April 1981. In subsequent addenda, dated in July 2010 and June 2011, the July 2009 VA examiner essentially reiterated his opinion that the Veteran's current foot disorders had not been incurred in or aggravated by service. In so doing, the examiner concluded that the opinions from Drs. C and Dr. F, to the effect that the Veteran had a genetic or congenital condition of the feet that was aggravated by service, were mere speculation. The examiner indicated that he found no evidence of a pre-existing foot condition, and no report of familial traits and/or report of first-degree family members with the same conditions. He noted that records of VA treatment did not show foot complaints until April 2008, when the Veteran presented for treatment of a one-week left foot mass 27; that VA treatment records showed multiple denials of foot pain; and that the opinion from Dr. F discounted and ignored multiple episodes of post-service traumatic events and/or foot conditions common in the general population, as well as improvement in the Veteran's condition since service. In an August 2010 statement, the Veteran reported that she had done very little marching while in the Army Reserve (1981-84), and that her duties at that time involved mostly sitting while rehearsing with the band. In the Army National Guard, however (1984-86), she performed drills or off-site parades two days every month and, during her two weeks of summer duty, took over for another Army post band and had many more activities that aggravated her foot problems. She argued that the VA examiner had not observed her gait mechanics before commenting on the stability of her foot, and argued, in effect, that the various breaks of her toes and ankles were, in fact, due to such instability. She reported that her foot problems gave her ongoing pain and kept her from doing things. She denied having foot problems prior to 1975, when running and marching in combat boots sent her to sick call. She stated that that was the start of her foot problems. She indicated that she put up with it until in December 1984, when the problems with her feet were aggravated by walking in high heels in downtown Chicago, while attending a band conference on orders from the Army National Guard. She stated that she had used crutches and a wheelchair in 1985, before Dr. L strapped her feet and got her into full-foot orthotics to get her back on her feet; but that orthotics were not effective enough to keep her from eventually being unable to fulfill her responsibilities in the Army National Guard, and that she was discharged. She report that her problems then continued to worsen in intervening years. In August 2012, the Veteran appeared at a Board hearing and gave further testimony in support of her appeal. Thereafter, she submitted additional evidence. The evidence submitted includes copies of letters the Veteran sent home to her parents during active duty service in 1975, describing problems she was having with her left foot and heel; a technical report from the United States Army Natick Research and Development Laboratories, dated in January 1983, pertaining to the nature and frequency of lower extremity disorders incurred by men and women undergoing Army basic training and the differential effects of two types of combat boots on lower extremity disorders; and a further statement from Dr. C, dated in September 2012, to the effect that, based on review of this and other evidence, it is Dr. C's professional opinion that the Veteran's foot problems are attributable to a combination of boots that did not fit her properly, too strenuous a training schedule, and injury sustained as a result of strenuous training. In a letter dated June 2013, Dr. M replied to the Board's request for an IME opinion. Dr. M was asked to respond to the following questions. 1. Did the Veteran have one or more congenital defects (i.e., a structural or inherent abnormality which is more or less static in nature) of one or both feet prior to entry onto active duty in October 1975? If so, please identify the defects. 2. If the Veteran had one or more congenital defects of one or both feet prior to entry onto active duty in October 1975, is it at least as likely as not (i.e., is it 50 percent or more probable) that additional disability became superimposed on the defect(s) during active duty service through April 1981 (for example, as a result of in-service training or trauma)? If so, please identify any such superimposed disability. 3. Is it clear and unmistakable (i.e., obvious, manifest, or undebatable/highest degree of medical certainty) that the Veteran had one or more congenital diseases (i.e., a condition capable of improving or deteriorating) of one or both feet or manifestations of such diseases prior to entry onto active duty in October 1975? If so, please identify the diseases. 4. If it is clear and unmistakable that the Veteran had one or more congenital diseases of one or both feet or manifestations of such diseases prior to entry onto active duty in October 1975, is it also clear and unmistakable (i.e., obvious, manifest, or undebatable/ highest degree of medical certainty) that any permanent increase in severity of such disease(s) during active duty service through April 1981 was due to the natural progress of the disease(s)? 5. Is it at least as likely as not (i.e., is it 50 percent or more probable) that one or more of the Veteran's foot disabilities (hallux rigidus, hallux limitus, hallux valgus, sesamoids, planovalgus, arthritis, tendonitis, plantar fasciitis, pronation, hammertoe deformities, bunions, etc.) had their onset during active duty service from October 1975 to April 1981, or are otherwise medically related to such service? If so, please identify any such disabilities. 6. Is it at least as likely as not (i.e., is it 50 percent or more probable) that one or more of the Veteran's foot disabilities (hallux rigidus, hallux limitus, hallux valgus, sesamoids, planovalgus, arthritis, tendonitis, plantar fasciitis, pronation, hammertoe deformities, bunions, etc.) had (i) their onset in, or (ii) were permanently worsened beyond the natural progress of the disorder by, the Veteran's service in the Army Reserve and/or Army National Guard from early 1981 to November 1986, to include as a result of in-service training or trauma? In response to question 1, Dr. M stated the answer would be yes. He stated despite the fact nothing was noted on the Veteran's initial service entry, there are numerous references in the treating physician's notes that the patient pronated which in layman's terms would be consistent with having flat feet. In response to question 2, Dr. M stated that answer would be that no permanent disability came about. He stated that the Veteran's complaints during active duty, particularly her basic training, were ankle pain. X-ray findings done much later refer to the patient having an accessory navicular. He stated that is not uncommon for individuals with an accessory bone or extra bone to develop a posterior tibial tendonitis consistent with overuse of the tendon which can manifest itself in any kind of shoes. The actual activity brings the symptoms on not the shoe gear. In response to question 3, Dr. M concluded that pronation was present before military service began. He stated that continuous references are made in physician's records to excessive pronation. He stated that pronation is not considered a disease and the etiology of pronation is numerous. If the Veteran has an anteriorly (forwardly) displaced posterior tibial tendon this would be the most common reason and with an accessory navular bone this is highly likely. This can be described as a congenital abnormality. He stated that actual pronation does not get worse as time goes on but pronation can cause problems as one ages. In response to question 4, Dr. M stated that the Veteran's problems developed as a natural progression. He stated that the pronation did not get worse. Symptoms such as plantar fasciitis, tendon strains, etc., are not permanent and will come and go dependent on activity. People that pronate will eventually develop bunion deformity. He stated that many practitioners will say that bunions are heredity but this is not totally true. He stated that the conditions that predispose a person to develop bunions are inherited. In response to question 5, Dr M stated no, not even plantar fasciitis. He stated that plantar fasciitis is a soft tissue problem and not a permanent foot disability. In response to question 6, Dr. M stated that the problems the Veteran has experienced are not related to or a direct result of her service, or permanently worsened by her service. He stated the Veteran's military, National Guard, nor Reserve service permanently worsened her problems. He stated that she could have started to form a bunion deformity during this time because bunions and hammertoes are a natural result of pronation. Some people develop them young, others when they get old. He stated that shoes do not cause these problems. Hallux limitus and rigidus are forms of arthritis in the joint. From the notes the Veteran developed these later. He noted that there is limited treatment for this which usually includes orthotics with a rigid mortons extension. He stated that usually surgery is the only successful treatment. Analysis As the Veteran's service entrance examination was negative for any bilateral foot disorder, the presumption of soundness attaches. However, the Board finds that there is clear and unmistakable evidence that the Veteran's bilateral foot disability (pronation and accessory navular bone) existed prior to service. First, in September 2003, Dr. C opined that, due to the Veteran's abnormal pronation, her foot structure had a tendency for progressive problems with time. Dr. C also opined that, with her type of foot, the Veteran would be prone to developing earlier problems with her feet. In an October 2005 letter, Dr. C noted that in service the Veteran was having problems with her left ankle. She added that the Veteran had no history of trauma to that area, but was having tendonitis of the left ankle. Dr. C stated that, while the records did not indicate mechanics present at that time, abnormal pronation is a cause of chronic, recurrent tendonitis. Dr. C stated that it was her opinion that the Veteran had a genetic condition. Additionally, in December 2008, Dr. F opined that the Veteran had a congenital predisposition to problems with her feet based on the fact that there was a cyst on the calcaneous as well as accessory bones which could have appeared at a young age. Furthermore, in the June 2013 IME opinion, Dr. M concluded that pronation was present before the Veteran's military service began. He stated that despite the fact nothing was noted on the Veteran's initial service entry, there are numerous references in the treating physician's notes that the patient pronated which in layman's terms would be consistent with having flat feet. He also stated that if the Veteran has an anteriorly (forwardly) displaced posterior tibial tendon, flat-feet would be the most common reason and with an accessory navular bone this is highly likely. He stated that this can be described as a congenital abnormality. The Board acknowledges that the March 2006 VA examiner found that there was no evidence that the Veteran had bilateral hallux valgus or hallux rigidus that existed before service and that the March 2010 examiner concluded it was less likely as not that hallux rigidus was a genetic condition. In subsequent addenda, dated in July 2009, July 2010, and June 2011, the March 2010 examiner found no evidence that hallux rigidus existed prior to the Veteran's service. However, the Board finds that the March 2006 and March 2010 VA examination opinions do not speak to whether the Veteran pronated, or had flat feet, prior to service. Moreover, the Court found these opinions inadequate. Thus, the Board affords the conclusions no probative weight in regards to determining if the Veteran's bilateral pronation preexisted service. The Board also acknowledges that the March 2010 examiner stated that he found no evidence of a preexisting foot condition and no report of familial traits and/or report of first degree family members with the same condition. However, the Board assigns no probative weight to the opinion or the addenda opinions in regards to determining if the Veteran had a preexisting foot condition. The Court found this opinion inadequate. The March 2010 examiner stated there was no evidence of a preexisting foot condition based on a review of the record, but Dr. C, Dr. F, and Dr. M. all concluded that while there were no foot abnormalities noted on entry, the Veteran suffered from other conditions that are caused by pronation. Particularly, Dr. C concluded that the left ankle tendonitis the Veteran suffered in-service was caused by pronation, as abnormal pronation can cause chronic tendonitis. Dr. F concluded that the Veteran had a congenital predisposition to problems with her feet based on the fact that there was a cyst on the calcaneous as well as accessory bones which could have appeared at a young age. Dr. M. concluded that with an accessory navicular bone it is highly likely that the Veteran has an anteriorly displaced posterior tibial tendon caused by pronation, which can be described as a congenital abnormality. As Dr. C, Dr. F, and Dr. M.'s conclusions are fully explained and consistent with the evidence of record the Board assigns them great probative weight. The Board also acknowledges the Veteran's contentions that her feet did not bother her until her active service. The Board acknowledges that the Veteran is competent to testify to pain and visible flat feet. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, ruling out a diagnosis of flat feet, or any other congenital foot disorder, falls outside the realm of knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Ruling out a diagnosis of flat feet, or any other congenital foot disorder, is complex and requires specialized training and medical diagnostic testing, and is therefore not susceptible of lay observation. As such, the Veteran's assertions that her feet did not bother her prior to service carry no probative weight in determining if the Veteran had flat feet or any other congenital foot disorder prior to service. As such, the Board finds that the private opinions and IME opinion show that the Veteran's bilateral foot disorder clearly and unmistakably existed prior to her military service from October 1975 to April 1981. However, with respect to rebutting the presumption of soundness, as noted above, the Board's inquiry does not end with a determination that a bilateral foot disability clearly and unmistakably pre-existed service. The Board must also determine whether such disability clearly and unmistakably was not aggravated during service. In this regard, the Board finds that there are varying competent and credible medical opinions as to whether the Veteran's bilateral foot condition was aggravated by service. The IME examiner concluded that the Veteran's pre-existing bilateral foot disability was not aggravated by service or permanently worsened by service. Dr. F and Dr. C concluded that the Veteran's pre-existing bilateral foot disability was aggravated by service or permamenately worsened by service. They essentially contend that the foot disability was subject to a superimposed injury (military training, marches, and running) during service that resulted in additional disability. Thus, "reasonable minds" have concluded differently. As such, the Board finds that there is not clear and unmistakable evidence that the Veteran's bilateral foot disorder was not aggravated by service from October 1975 to April 1981 and therefore, the presumption of soundness is not rebutted. As stated above, if VA is unable to rebut the presumption, a disease or injury that manifested in service is deemed incurred in service and the Veteran must nonetheless establish by a preponderance of the evidence that a current disability is related to the in-service injury or disease. Here, the Veteran has a current disability as she has been diagnosed with several bilateral foot disabilities. In regards to whether the Veteran's current bilateral foot disability is related to the in-service incurrence of additional foot disability, Dr. C. and Dr. F.'s September 2003, October 2005, December 2008, and September 2012 opinions link the Veteran's foot disabilities to the in-service incurrence of additional foot disability. Dr. M.'s June 2013 opinion is to the contrary. The Board resolves reasonable doubt in favor of the Veteran and finds that service connection for a bilateral foot disability, to include hallux rigidus, hallux limitus, hallux valgus, capsulitis, osteoarthritis, tendonitis, plantar fasciitis, hammertoe deformities, and bunions, is warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a bilateral foot disability, to include hallux rigidus, hallux limitus, hallux valgus, capsulitis, osteoarthritis, tendonitis, plantar fasciitis, hammertoe deformities, and bunions is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs