Citation Nr: 1342579	
Decision Date: 12/23/13    Archive Date: 12/31/13

DOCKET NO.  11-34 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to service connection for bilateral pes planus.


REPRESENTATION

Appellant represented by:	Connecticut Department of Veterans Affairs


ATTORNEY FOR THE BOARD

N. Rippel, Counsel







INTRODUCTION

The appellant had a period of service in the Army National Guard from November 1979 to June 1982, which included a period of active duty for training (ACDUTRA) from July to November 1980.  He also served in a reserve service unit from June 1982 to December 1985. 

This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Hartford, Connecticut.  In that decision, the RO reopened the previously denied claim of service connection for bilateral pes planus based on a finding of new and material evidence and denied entitlement to service connection for bilateral pes planus on the merits. 

Regardless of whether the RO's reopened the claim, the Board must consider the question of whether new and material evidence has been received because it relates to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  

In September 2013, the Board reopened the claim and remanded the matter to the RO or the Appeals Management Center (AMC) for additional action prior to appellate review of the claim on the merits.  

This appeal was processed using the Virtual VA/VBMS paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).




FINDING OF FACT

The preponderance of the evidence shows that the appellant's pes planus was not present in service or until many years thereafter and is not related to service or to an incident of service origin.


CONCLUSION OF LAW

The criteria for service connection for pes planus have not been met.  38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 U.S.C.A. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

As noted in the September 2013 Board decision, the appellant seeks service connection for pes planus, arguing that the condition pre-existed service and was aggravated by his period of active duty for training (ACDUTRA) from July to November 1980.  

I.  Duties to Notify and Assist

VA has a duty to provide notification to the appellant with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).

The duty to notify was satisfied prior to the initial RO decision by way of a letter sent to the appellant in September 2011 that informed him of his duty and the VA's duty for obtaining evidence.  In addition, the letter met the notification requirements set out for service connection in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

VA also has a duty to assist the appellant in the development of the claims.  This duty includes assisting 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 relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained.  The appellant's service treatment and personnel records, VA treatment records, private records and lay statements have been obtained.  A VA examination with medical opinions regarding the pes planus has been obtained and is deemed adequate for rating purposes.  

The appellant has not indicated there are any additional records that VA should obtain on his behalf.  Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim, and no further assistance to develop evidence is required.

II.  Legal Criteria

Generally, service connection is awarded for disability that is the result of a disease or injury in active service.  38 U.S.C.A. §§ 1110, 1131.  Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in line of duty.  38 U.S.C.A. § 101(21)(24), (West 2002); 38 C.F.R. § 3.6(a) (2012).  Active military, naval, or air service also includes any period of INACDUTRA in which the individual concerned was disabled from injury incurred in the line of duty.  Id.  Accordingly, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA.  38 U.S.C.A. §§ 101(24), 106, 1131.  ACDUTRA includes full time duty performed by members of the National Guard of any state or Reservists.  38 C.F.R. § 3.6(c).  INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state.  38 C.F.R. § 3.6(d).

The Board notes that veterans who serve on regular active duty are entitled to several presumptions -- such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries that undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service -- to assist them in substantiating their service connection claims.  38 U.S.C.A. 
§§ 1111, 1112, 1153 (West 2002); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2013).  However, the presumption of sound condition does not apply to an appellant whose claim is based on a period of ACDUTRA who has not previously established veteran status.  Smith v. Shinseki, 24 Vet. App. 40, 44 (2010).  Moreover, "where a claim is based on a period of [ACDUTRA], the presumption of aggravation under [38 U.S.C.A.] § 1153 is not applicable."  Id. at 48; see Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010).  Therefore, in this case, these presumptions do not apply.

III.  Legal Analysis

Service treatment records (STRs) show no notation, report or treatment for pes planus.  VA examination in November 2005 contains the examiner's note that appellant has markedly flat feet, and indicated that appellant reported having pes planus that pre-existed service.  The examiner noted that there was no mention of pes planus in the STRs and also indicated that it is not clear when the pes planus was diagnosed as it was not noted on appellant's enlistment exam or Reserve exams in 1979.  

An October 2010 statement from the appellant's treating podiatrist T.W. reflects the diagnosis of severe pes planus, as well as his opinion that while the pes planus is more than likely congenital, his prior military service would have significantly aggravated the condition.  The podiatrist explained that prolonged marching, standing, walking and hiking could have significantly contributed to his degenerative joint disease in both feet.  It was his opinion that this type of activity could have led to significant degenerative joint disease in both feet, associated with his military service.  He wrote that he reviewed the appellant's 'provided service medical records' regarding his lower extremities and that these show lower extremity strain and laceration that would have aggravated the biomechanical foot and leg condition.  

The Board notes that the appellant has submitted treatment records recording his ongoing complaints of leg and foot pain, including records submitted in May 2013.  

As directed in the Board's September 2013 decision, appellant was afforded a VA examination so that an expert opinion could be reached as to whether the current bilateral pes planus is due to or aggravated by service.  The Board noted the aforementioned podiatrist opinion, as well as the VA examiner's observation in the November 2005 examination for the knees that there was no documentation of pes planus in the service treatment record.  The Board explained that the existence of pes planus in service was relevant at the time of the 2005 examination because the appellant was claiming knee disability due to pes planus, claimed to have been present in service.  The VA examiner in 2005 commented on the lack of notation of pes planus in the enlistment examination or any army reserve examinations in 1979, despite the appellant's assertions that pes planus pre-existed service and was aggravated by service.  

The report of the VA podiatry examination dated in October 2013 reflects that the examiner reviewed the VA claims folder, including electronic records, and examined the appellant.  The examiner noted his findings and conclusions in detail, and they will be included herein by the Board in the interest of clarity.  

The examiner noted appellant's claim that he was born with flat feet and had to wear corrective shoes when he was a child.  It was also noted that appellant reported that if he did not wear these, he would get blisters on his feet.  Appellant claimed that while in the military he had problems with his feet described as pain and swelling and that at Fort Benning in Georgia he required the use of special padding inside his boots, otherwise his feet would blister and bleed.  Appellant stated that ever since the military he has had problems with his feet, mainly pain and swelling.  He reported that he was able to work for McDonald's as a cook on and off for 30 years.  He stated that he stopped working in 2000 due to his feet getting worse and that he was no longer able to stand for a prolonged time due to pain.  He stated that he had seen various doctors over the years and had been told his foot problems were due to flat feet.  He has worn ankle braces and orthotics for over 5 years, and now requires a walker.  For the past 9 months, appellant stated that he had developed more difficulty walking so he now relied on a wheelchair for locomotion.  He stated that he had also been diagnosed with diabetic peripheral neuropathy and diabetes, and is on Lyrica and insulin.  He stated that his doctors tell him he has lost significant muscle strength in his legs.  

The examiner observed that STRs do not document pes planus, foot complaints, problems with feet, foot conditions, or need for orthotics.  Nor does the 1979 enlistment exam mention the presence of a flat foot condition; and in the appellant's corresponding report of medical history he denied foot trouble.  

The examiner further noted that private treatment records document the diagnosis of pes planus in 2000 which became more symptomatic around 2003 and was treated with orthotics.  The examiner also noted Dr. T.W.'s statement in October 2010 in support the claim.  It was noted by the VA examiner that the podiatrist stated that the appellant has severe pes planus that, in his opinion, was congenital, and that the military service would have aggravated the condition.  Dr. W. stated that prolonged marching, standing, hiking and walking could have contributed to his degenerative joint disease of both feet associated with military service.  He prescribed ankle Arizona braces.

Following this recitation of the salient facts, the VA examiner explained that pes planus is generally not considered a congenital defect in infants.  Rather it is considered a normal condition in infants and toddlers.  Infants typically have a minimal arch.  The appearance of flat feet is normal and common in infants, because the arch has not yet fully developed.  The human arch develops in infancy and early childhood as part of normal muscle, tendon, ligament and bone growth.  Most people have normal arches by the time they are adults.  However, the arch may never form in some people.  In these cases there is abnormal development of the foot, producing persistent pes planus, many times asymptomatic.  Other times, some may become symptomatic if the pes planus leads to bony changes.  Aging, injuries, or illness may harm the tendons and cause flat feet to develop in a person who has already formed arches.  

The examiner continued that, in appellant's particular case, there is no evidence that the normal condition of pes planus generally present in infancy persisted past childhood.  His enlistment exam did not document a pes planus condition.  It was not until the year 2000 that the appellant was diagnosed with pes planus.  Therefore, the examiner concluded that the appellant's pes planus is an acquired foot disease and not a congenital or developmental defect.  

The examiner thereafter opined that it is less likely as not that the appellant's pes planus pre-existed his military service because review of the enlistment exam and the report of medical history in 1979 did not document a pes planus condition.  

As to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the appellant's current pes planus disability began in or is etiologically related to his period of military service, the examiner opined that the current pes planus did not begin in and is not etiologically related to his period of military service.  She explained that STRs do not document pes planus, foot complaints, problems with feet, foot conditions, or the need for orthotics.  Again, it was noted that appellant was first diagnosed with pes planus in 2000.  This was 15 years after his military service.  Due to the lapse in time of developing pes planus and the lack of foot complaints while in the service, the examiner concluded that the current pes planus condition is not a result of the appellant's military service.

Based on the above, the Board finds that the preponderance of the evidence is against the claim.  The weight of the probative evidence demonstrates that the current pes planus is not related to service.  The October 2013 VA examiner's opinion is well-supported and is considered evidence that is wholly against the claim.  

Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions.  Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another.  Wray v. Brown, 7 Vet. App. 488 (1995).  An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference.  Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  

In this case, the 2013 VA opinion is competent, persuasive and probative evidence against the claim, and it is uncontroverted by any competent evidence inasmuch as it is the only opinion which was based on all of the relevant facts, to include a total lack of treatment in service.  It is more probative and persuasive than the opinion of Dr. W., because it is based on a review of the entire evidence of record and it addresses the supportive evidence, namely Dr. W.'s opinion.  Furthermore, the private opinion is couched in terms of speculation, finding that the appellant's military service "could have contributed" to his current condition.  As such, the Board finds the 2013 VA opinion to be most probative.  

In this regard, the Board recognizes the appellant's own opinion.  While he is competent to observe symptoms like foot pain, he is not credible inasmuch as the record shows no complaints in service or for many years following service, and in fact the STRs record that he reported no foot problems in 1979.  

In conclusion, the Board finds that the preponderance of the evidence is against the claim of service connection for pes planus.  In reaching the conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

Service connection for bilateral pes planus is denied.


____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs