Citation Nr: 1339983 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-24 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for flat feet. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active service from June 1975 to June 1978. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This issue was previously before the Board in November 2011 and was remanded for further development. Specifically, the Board requested the Veteran be provided with a VA examination. The Board finds the requested action was completed and this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The evidence does not establish the Veteran's pre-existing bilateral flat feet condition was aggravated by his active service. CONCLUSION OF LAW The criteria for service connection for flat feet have not been met. 38 U.S.C.A. §§ 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for bilateral flat feet. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Under VA regulations a Veteran is presumed to be in sound condition when he entered into active service, except for defects, injuries, or conditions noted on the entrance examination. 38 U.S.C.A. § 1132; 38 C.F.R. § 3.304. The Veteran's June 1975 entrance examination noted he had "pes planus NCD" (not considered disabling). Accordingly, the Board finds this condition was noted on the Veteran's examination report at entrance to military service and is therefore pre-existing under VA regulations. 38 U.S.C.A. § 1132; 38 C.F.R. § 3.304(b). As his foot condition pre-existed service, the Veteran cannot bring a claim for service connection for incurrence of bilateral flat feet, but he may bring a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). When 38 U.S.C.A. § 1153 applies, the burden falls on the Veteran to establish aggravation. See Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). The Board will now discuss whether the Veteran has met the burden of showing aggravation of his pre-existing flat feet during his military service. As will be discussed, the Board concludes that he has not met such an evidentiary burden. As an initial matter the Board notes that as a lay person the Veteran is considered to be competent to report what comes to him through his senses, including pain in his feet. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology or degree and severity of his bilateral flat feet. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Board has considered the Veteran's lay statements regarding increased pain in his feet due to his active service, however for reasons discussed below the Board finds the objective medical evidence of record does not support the Veteran's assertions that his foot condition increased in severity during his active service. Service treatment records do not reflect the Veteran sought any treatment for or made any complaint of foot pain during his active service. At his April 1978 separation physical no pes planus was noted and the Veteran's feet were noted to be in normal condition. Moreover in his accompanying report of medical history the Veteran himself denied experiencing any foot trouble. Therefore service treatment records do not reflect the Veteran's pre-existing condition increased in severity during his active service. The claims file does not reflect the Veteran sought any treatment for his bilateral flat feet for several years after his separation from active service. At his January 2012 VA examination the Veteran reported his current pain in his feet began around 1995, approximately seventeen years after his separation from service. The earliest treatment records in the claims file reflecting the Veteran sought treatment for his bilateral foot condition are from August 2007. At this time the Veteran reported his current pain was 9 out of 10 severity and began approximately one month earlier, now nearly thirty years after his separation from active service. Therefore the Veteran's lay statements made during treatment and post-service medical records both reflect his current level of pain in his feet did not begin until several years after active service, and do not establish any increase in severity during service. Finally, in June 2012 the same VA examiner provided an addendum opinion in which he opined the Veteran's bilateral flat feet clearly and unmistakably existed prior to service and clearly and unmistakably were not aggravated beyond their natural progression by an in-service injury, event, or illness. The examiner explained the Veteran's pre-existing pes planus was clearly indicated on the Veteran's entrance examination and his separation physical indicated no foot problems. Additionally the Veteran reported his current complaints began in around 1995, several years after his separation from service. Finally the examiner opined that the progression of the Veteran's bilateral foot condition of hallux valgus and associated MTP join arthritis is "highly variable" however in this case "it is clear that the secondary hallux valgus was not present during military service, and began at least 15 years after military service." Moreover the examiner opined, "The current foot condition is part of the natural progression of the [existing prior to service] disorder, pes planus, and no evidence of aggravation of the condition is noted in the service medical records during active military service." Therefore this examination provides highly probative evidence against the Veteran's claim his pre-existing bilateral flat feet were aggravated by his active service, meeting the high standard of clear and unmistakable evidence. Based on the foregoing the Board finds the evidence of record does not establish the Veteran's pre-existing bilateral foot condition increased in severity during his active service. Service treatment records do not reflect the Veteran sought any treatment for this condition during active service, his feet were noted to be in normal condition at his separation physical, the Veteran did not seek any treatment for his bilateral foot condition until approximately 15 years after his active duty, and the VA examiner clearly opined the Veteran's bilateral foot condition did not increase in severity during his service. Therefore, a worsening of his pre-existing condition during active service is found not to have occurred under the high standard cited within Wagner. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a); Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). As the Veteran's bilateral flat feet pre-existed his military service and the evidence does not establish this pre-existing condition increased in severity due to his active service, his claim for service connection is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in July 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA examination, the report of which has been associated with the claims file. The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The claim for service connection is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs