Citation Nr: 1339690 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-22 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Venters, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from November 1999 to November 2003 and the Army National Guard from April 2006 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA and VBMS) claims file associated with the Veteran's claim. A review of the documents in such file reveals that certain documents, including the videoconference hearing transcript dated November 28, 2012, are relevant to the issue on appeal. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the competent evidence shows that the Veteran's bilateral pes planus is due to his period of service. CONCLUSION OF LAW The criteria for establishing service connection for bilateral pes planus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A, 5107(West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2013). The Board is granting service connection for bilateral pes planus. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. In November 2012, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) during a videoconference hearing. A transcript of the hearing has been associated with the claims file. Any duties associated with such a hearing by the AVLJ are deemed met as the claim is granted herein. See 38 C.F.R. § 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Where there is a chronic disease noted in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337-38 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). A layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). A layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran contends that he injured his feet during his period of service, to include incurrence of bilateral pes planus. Service treatment records (STRs) dated in March 2001, the Veteran complained of pain to his feet. The Veteran was treated for "overuse syndrome of the right foot" and noted to have slightly flat arches. The Veteran complained of feet pain at his October 2003 separation examination, although the examination noted normal arches. The available STRs for the Veteran's second period of active service do not show any complaints, treatment, or diagnoses of his feet. The post-service evidence shows that the Veteran underwent VA treatment for his feet in November 2007, 8 months after discharge from his second period of active service. He reported that he had suffered a sprained arch on the right foot during service that had improved. The Veteran was treated with over the counter insoles, ultrasound, medication, and physical therapy. The examiner noted that the Veteran had a slight decrease in the arch in the right foot compared to the left. The Veteran's post-service treatment records indicated that he continued to seek VA treatment for his feet pain, due to his arches, from November 2007 to April 2009. Additionally, a December 2009 VA examination indicated that the Veteran had a history of injuries to his feet while in service. Specifically, the examiner noted the March 2001 treatment record, also mentioned above, and a September 2001 bone scan report which revealed stress reactions on both feet. The examiner also reviewed the Veteran's VA treatment records from November 2007 to April 2009. The examiner diagnosed mild bilateral pes planus, but then noted no objective findings on examination to support a diagnosis. The Board notes that the examiner's opinion is unclear, as he found no objective findings to support a pes planus diagnosis, but then provided just such a diagnosis. At the November 2012 Board hearing, the Veteran described a history of bilateral pes planus that began during service and has continued since that time. The Veteran reported that a fallen arch was diagnosed during active military service. The Veteran stated he was put on profile and given medical treatment, including insoles, to help his pes planus. He reported that he had experienced pain in his feet during service that he kept the insoles through the duration of his Army career. Regarding why the 2003 separation examination found normal arches, the Veteran asserted that the examiner had not performed a physical examination of his feet. The Veteran stated that since he was diagnosed with having sprained arches, he wore his insoles every day, and thus he did not have the problems he had prior to getting the insoles. However, the Veteran indicated that he still felt pain in his feet if he stood for long periods of time and that he still received treatment from the VA. The Board finds that the evidence of record supports a finding of service connection for pes planus. First, resolving all reasonable doubt in favor of the Veteran and interpreting the 2009 VA examination as finding pes planus without current symptoms, there is a current disability as the evidence of record demonstrates a diagnosis of pes planus. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Second, there is evidence of an in-service event, disease, or injury as the Veteran provided competent and credible testimony of the presence of fallen arches and the STRs indicate slightly flattened arches. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Finally, the evidence of record demonstrates a relationship between active service and the currently diagnosed pes planus. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Given that the evidence of record indicates that the Veteran received treatment for sprained arches and feet pain during service and was noted to have slightly flat arches, was found to have a slight decrease in the arch in the right foot by a VA physician 8 months after service, had a pes planus diagnosis on VA examination in December 2009, and continues to receive treatment from the VA for feet pain, the Board resolves all reasonable doubt in favor of the Veteran and finds that he currently has bilateral pes planus due to foot injuries, including flat arches that were incurred during his period of service. In sum, reasonable doubt is resolved in favor of the Veteran, and the Board finds that service connection for bilateral pes planus is warranted. 38 U.S.C.A. 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral pes planus is granted. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs