Citation Nr: 1338633 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-10 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a right foot pes planus, claimed as a big toe disability. ATTORNEY FOR THE BOARD L. McCurdy, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1984 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied entitlement to the benefit currently sought on appeal. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in July 2013. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. Clear and unmistakable evidence demonstrates that the Veteran's right foot pes planus, claimed as a big toe disability, existed prior to his period of active service. 2. Clear and unmistakable evidence demonstrates that the Veteran's right foot pes planus, claimed as a big toe disability, did not permanently increase in severity during or as a result of service. CONCLUSION OF LAW The criteria for entitlement to service connection for right foot pes planus, claimed as a big toe disability, have not been met. 38 U.S.C.A. §§, 1111, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify 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, in accordance with 38 C.F.R. § 3.159(b)(1). 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 of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the appellant'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 Veteran was notified by a letter dated in March 2006 of how VA determines disability ratings and effective dates if service connection is granted. A letter dated in April 2006 notified the Veteran of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. Under these circumstances, the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the appellant prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the claimant 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. VA has obtained the Veteran's service treatment records. No private treatment records have been obtained. The duty to assist is not applicable in this regard, however, as the Veteran has not identified any such records. See 38 U.S.C.A. § 5103A(b). He also has not submitted any such records on his own behalf. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for disability compensation benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was provided with a VA examination in August 2012 regarding this claim. The report from that examination indicates that the examiner reviewed the Veteran's claim file, interviewed the Veteran regarding his past and present relevant symptomatology, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for the purposes of rendering a decision in the appeal. See 38 C.F.R. § 3.159(c)(4) (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). The Veteran has not contended otherwise. The Veteran was also provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. The Veterans Court has held that 38 C.F.R. § 3.103(c)(2) requires the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the July 2013 hearing, the undersigned Veterans Law Judge identified the issue on appeal that is the subject of the instant adjudication. Also, information was solicited regarding the nature of his arguments pertaining to the issue and there was clarification of the evidence necessary to establish entitlement to benefits. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, during the hearing, the Veteran was permitted to provide additional evidence regarding his claim. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claims. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Analysis Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2012); 38 C.F.R. § 3.303 (2013). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or "nexus," between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). In this case, there is no question that the file contains clinical evidence of currently diagnosed pes planus. The pertinent inquiry in this case involves whether or not the Veteran's currently diagnosed pes planus was incurred in or aggravated by his period of military service. In this regard, the Board must initially establish whether pes planus existed prior to the Veteran's period of service. Certain evidentiary presumptions exist to assist veterans in establishing service connection. For example, the Veteran is presumed to be in sound condition upon entry into service except as to injuries or diseases noted during his entrance medical examination. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). According to 38 C.F.R. § 3.304(b), the term "noted" describes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1). To rebut this presumption, the burden is on VA to show by clear and unmistakable evidence both that the injury or disease in question existed prior to service and that it was not aggravated by service. Id.; see also VAOPGCPREC 3-03 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004); Monroe v. Brown, 4 Vet. App. 513 (1993); Green v. Derwinski, 1 Vet. App. 320 (1991). The appellant is not required to show that the disease or injury increased in severity during service before VA's duty under the second, aggravation, prong of this rebuttal standard attaches. See Horn v. Shinseki, 25 Vet. App. 231 (2012); see also Cotant v. Principi, 17 Vet. App. 116 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease is presumed to have been aggravated by a Veteran's service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the injury or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of a preexisting injury or disease do not constitute an increase in disability unless the underlying injury or disease, as contrasted with symptoms, has worsened. Beverly v. Brown, 9 Vet. App. 402 (1996); Jensen v. Brown, 4 Vet. App. 304 (1993); Green, 1 Vet. App. at 320; Hunt v. Derwinski, 1 Vet. App. 292 (1991). Thus, "a lasting worsening," or worsening that existed not only at the time of separation but currently still exists, is required. Routen v. Brown, 10 Vet. App. 183 (1997); Verdon v. Brown, 8 Vet. App. 529 (1996). The Veteran underwent Medical Evaluation Board Proceedings during service in which a group comprised of two Medical Doctors and a Doctor of Podiatric Medicine ("Medical Board") determined that his disability was congenital. The Board notes that a congenital disease is capable of improving or deteriorating whereas a congenital defect is "more or less statutory in nature." VAOPGCPREC 82-90 (July 18, 1990). Service connection may be established for a disease of congenital origin. Indeed, a congenital disease can be incurred or aggravated in service in that it first manifests during service or preexisted service but progresses at an abnormally high rate during service. VAOPGCPREC 67-90 (July 18, 1990). A congenital defect, rather, is not a disability for which service connection can be granted. 38 C.F.R. §§ 3.303(c); 4.9. However, if the defect was aggravated such that a superimposed disease or injury occurred during service, service connection may be established for the resultant disability. VAOPGCPREC 82-90. The presumption of soundness applies to a congenital disease but not to a congenital defect. Quirin v. Shinseki, 22 Vet. App 390 (2009). The Board concludes, based on the evidence of record, that this Veteran's pes planus is a congenital disease. Although it was not noted on his entrance examination, service treatment records indicate that he was seen at least five times for pain in his right foot, including referrals to a podiatrist, beginning just over a week into his two months of active service. During his first treatment, the Veteran indicated that he had pain in his foot for at least one year, but the pain increased in the previous week. Readily inferred from this is that the severity of the symptoms of his disability are variable, like a congenital disease, rather than static in nature, like a congenital defect. Further, the Veteran is not prejudiced by considering the pes planus to be a congenital disease, for which service connection may be established, as opposed to a congenital defect, for which service connection may not be established. As the presumption of soundness attaches to the Veteran's congenital disease, the burden is on the VA to rebut the presumption with clear and unmistakable evidence that the injury pre-existed service and was not aggravated by service. The Veteran's entrance exam, dated in May 1984, indicated that his feet were "normal" and is further absent for any complaints of pain in the Veteran's feet. However, even so, the Board finds that the file contains evidence which clearly and unmistakably establishes that pes planus existed prior to the Veteran's enlistment into service in June 1984. As stated, the Medical Evaluation Board Proceedings noted that the Veteran's disability was congenital and found that it existed two years prior to service. Prior to this hearing, the Veteran was seen by a podiatrist who took a narrative summary of the disability and recommended the Veteran see the Medical Board. The narrative findings from this podiatrist, dated May 1984, were read to the Veteran during the July 2013 hearing, mistakenly referred to by the undersigned Veterans Law Judge as dated in June 1984. The podiatrist indicated that the Veteran described a history of right foot pain since 1982 and then diagnosed the Veteran with severe pes planus with an onset prior to service. At the Travel Board hearing, the Veteran stated that "when [he] started training [in his] combat boots [he] started having foot problems" and that he "never had problems before" service. The Veteran is competent to report the onset of symptoms that he can personally observe, such as pain in his foot. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board does not find this explanation credible. First, the Veteran indicated during service treatment in June 1984 that he had pain for a year prior to service. The Veteran's statements presented in connection with treatment are found credible as there is no indication that the Veteran had any reason to provide an inaccurate medical history to the evaluating physician or authority. See White v. Illinois, 502 U.S. 346, 355-56 (1991) (noting that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). Conversely, his more recent statements regarding the onset of his disability in service were made in connection with a claim for compensation. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Additionally, although not dispositive, the Veteran indicated at entrance on his Report of Medical History that he had foot trouble and the examining doctor recorded "cramps in toes." The Medical Board also found that the Veteran's pes planus existed two years prior to service, a finding that the Veteran did not dispute. The Veteran even requested to be discharged from service based on the "findings and recommendations of the medical evaluation board," including that the "disability was found to have existed prior to [his] entry into active service." Finally, the VA examiner from the August 2012 examination opined that the Veteran's pes planus clearly and unmistakably existed prior to service based on an adequate examination of the Veteran. The Board finds that the Veteran's disability clearly and unmistakably pre-existed service. The burden remains with VA to provide clear and unmistakable evidence that the disease was not aggravated by service. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The Board notes that this claim was filed over twenty years after service, evidencing that the condition was not permanently worsened after service, but rather the symptoms were temporarily exacerbated. The Veteran has not indicated that he sought treatment after service, nor has he provided any evidence that he was treated, weighing against his contentions that the pain in his feet was aggravated by service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that evidence of a prolonged period without medical complaint and the amount of time that elapsed since service can be considered by the Board). After the VA examination in August 2012, the examiner opined that there was clear and unmistakable evidence that the Veteran's condition "was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." His rationale explained that "treatments were provided" and the Veteran "was reporting pain in the feet 'prior' to entering military service," making it "less likely than not that his military service aggravated his foot condition beyond natural progression of his condition." The Board acknowledges the apparent inconsistency in the standards applied by the examiner, but finds that it is not fatal. Rather, the examiner used the "less likely than not" explanation as a rationale for his overall conclusion that the Veteran's disease was clearly and unmistakably not aggravated beyond its natural progression. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the Board finds that the conclusions of the thorough and detailed August 2012 VA examination are highly probative and establish that the Veteran's symptoms of right foot pes planus, during service and since, were due to the natural progress of his foot disease. Given the foregoing, the Board finds that the claims file contains clear and unmistakable evidence that the Veteran's disability was not aggravated by his service. See 38 U.S.C.A. § 1111; Cotant. In light of the evidence of record, including the 1984 notation that the Veteran suffered from severe pes planus, the Veteran's contentions during service treatment that the pain in his feet pre-existed service, and the recent medical opinion obtained during the appeal, the Board concludes that the evidence clearly and unmistakably establishes that the Veteran's right foot pes planus disability, claimed as a big toe disability, preexisted service and was not aggravated during his periods of active service. As such, the weight of the evidence is against the Veteran's claim and the benefit of the doubt provision does not apply. See 38 U.S.C.A. § 5107(b) (West 2012); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for right foot pes planus, claimed as a big toe disability, is not warranted. ORDER Service connection for right foot pes planus, claimed as a big toe disability, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs