Citation Nr: 1606478 Decision Date: 02/22/16 Archive Date: 03/01/16 DOCKET NO. 11-05 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a bilateral foot disability (claimed as pes planus). 2. Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. Reddington INTRODUCTION The appellant had periods of active duty for training (ACDUTRA) from September 1980 to March 1981; June 13, 1981 to June 27, 1981; and from March 28, 1982 to April 19, 1982. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2016, the appellant was scheduled for a central office Board hearing; however, he failed to report. Accordingly, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d). Service connection has been granted for a left wrist disability suffered during a period of inactive duty for training (INACDUTRA) in September 1981. See March 1983 rating decision. Under VA law, "veteran" status must be established as a condition of eligibility for service connection benefits with respect to any period of ACDUTRA or INACDUTRA associated with enlistment in a Reserve component of one of the Armed Forces. See Bowers v. Shinseki, 26 Vet. App. 201 (2013). The fact that a claimant has established status as a veteran for purposes of other periods of service does not obviate the requirement for establishing veteran status for purposes of the period of ACDUTRA or INACDUTRA on which the claim is based. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a bilateral foot disability, claimed as pes planus, is related to the appellant's periods of ACDUTRA. 2. The preponderance of the evidence is against a finding that the appellant has a current chronic ankle disability that is related to his service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C.A. §§ 101, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.306 (2015). 2. The criteria for service connection for a bilateral ankle disability have not been met. 38 U.S.C.A. §§ 101, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Adequate notice was provided in May 2009, June 2009, and December 2009. The appellant's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO did not arrange for a VA examination or secure a medical opinion with respect to these claims. The Board has considered whether examinations are necessary. Absent any competent (medical) evidence suggesting that the appellant's pes planus was aggravated during a period of ACDUTRA or that he has a current chronic bilateral ankle disability (which can be substantiated on a secondary basis (as alleged) or is otherwise related to service), examinations to secure a medical nexus opinion in these matters are not necessary, as even the low threshold standard as to when an examination or opinion is necessary is not met. McLendon v. Nicholson, 20 Vet. App. 27 (2006); 38 C.F.R. § 3.159(c)(4). The appellant has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); see Mercado-Martinez, 11 Vet. App. at 415. Service connection is also permissible for disability resulting from disease or injury incurred in or aggravated by ACDUTRA. 38 U.S.C.A. § 101(22) and (23); 38 C.F.R. § 3.6. A preexisting 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). "[A]ggravated in the line of duty" as used in 38 U.S.C.A. § 101(24)(B), means that in order for an ACDUTRA claimant to establish his status as a "[V]eteran," he must demonstrate both elements of aggravation -- namely, (1) that the pre-existing disability worsened in service, and that (2) such worsening was beyond the natural progression of the disease. Donnellan v. Shinseki, 24 Vet. App. 167 (2010). The Court noted that the placement of the burden of proof on the ACDUTRA claimant was consistent with the distinction made in § 101(24) between an ACDUTRA claimant and an active duty claimant. Id. Moreover, when the presumption of soundness does not attach, as here, it is the appellant who has the burden of establishing a disability that existed prior to service was permanently worsened by his military service, and that such worsening was beyond the natural progression of the condition. Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2009). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows or fails to show as to the claims. Bilateral Foot Disability The appellant contends that he has a bilateral foot disability due to service. He has specifically indicated that his preexisting flat feet condition was aggravated by his service due to the "physical demands" of his military training. He also has reported suffering from bunions, calluses, and collapsed ankles as a result. The appellant's service personnel records confirm his ACDUTRA service from September 1980 to March 1981, June 13, 1981 to June 27, 1981, and from March 28, 1982 to April 19, 1982. There is no indication from these records or from the appellant that he had any active duty service. His STRs indicate that on June 1980 Army Reserves examination, the examiner noted that the appellant had pes planus, not considered disabling. He was found qualified for enlistment. Accordingly, the competent and credible evidence of record establishes that the appellant had flat feet prior to ACDUTRA, and the appellant must show "both that a worsening of [the] condition occurred during the period of active duty for training and that the worsening was caused by the active duty for training." Smith v. Shinseki, 24 Vet. App. 40 (2010). A February 2003 treatment record notes an assessment of bilateral pes planus. In October 2008, bunion, extreme right midfoot arthritis, and bilateral heel spur formations were noted. A February 2005 record notes assessments of bilateral tinea pedis, midfoot arthritis, and bursitis. An August 2008 treatment record notes that the appellant has polyarticular arthritis in both feet. A January 2009 treatment record notes that the appellant has congenitally acquired pes planus. The question that must next be addressed is whether the appellant's preexisting pes planus was aggravated by his service. The appellant has submitted statements to the effect that his flat feet were not severe upon entrance into ACDUTRA, as the flat feet disability was "not considered disabling." However, he contends that due to the physical demands of his military training, the condition has worsened over time and he now also suffers from other foot disabilities, including bunions, calluses, and collapsed ankles. The appellant is competent to report persistent symptoms of pain during ACDUTRA and since. However, there are no contemporaneous medical records to show the severity of the appellant's flat feet during any period of ACDUTRA. Therefore, the appellant has not provided affirmative evidence that his flat feet worsened during any active duty for training period. The Board has considered the appellant's statements that his current pes planus was aggravated by his military service. The Board finds the appellant's statements to be credible. Such lay statements may be competent to support a claim for service connection where the events or the presence of disability or symptoms of a disability are subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while some symptoms of pes planus/a foot disability, such as pain, may be reported by a layperson, the appellant is not competent to provide an opinion regarding the progression of his pes planus as the diagnosis, etiology, and progression of pes planus requires medical training. Further, as discussed above, the evidence of record does not support a finding that the appellant's condition permanently worsened as a result of his ACDUTRA. Accordingly, as the appellant has not met the burden to show that his preexisting pes planus was aggravated by his ACDUTRA, service connection is not warranted. The Board acknowledges the appellant's other foot disabilities noted in the record. Notably, there is no evidence to indicate or suggest that any of the appellant's other foot disabilities, including arthritis and bunions, are related to his periods of ACDUTRA. In this regard, the Board notes that the appellant's claim appears to be premised on the fact that he had preexisting pes planus while on ACDUTRA that was aggravated by his ACDUTRA and that then led to the development of other foot disabilities. See May 2009 statement. He does not allege or suggest that his other currently diagnosed foot disabilities may be related to his service. The Board also acknowledges the appellant's suggestion that his bilateral foot disability may be secondary to his bilateral ankle disability. However, as a bilateral ankle disability is not service-connected (see discussion below), that theory of entitlement lacks legal merit. See 38 C.F.R. § 3.310. Based on the foregoing, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for a bilateral foot disability claimed as pes planus. Because the preponderance of the evidence is against the appellant's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a bilateral foot disability is not warranted. Bilateral Ankle Disability The appellant contends that his bilateral ankle disability is caused by his bilateral foot condition, and specifically his flat feet. In a May 2009 statement, the appellant stated that his flat feet were made worse by his military service and as a result he now suffers from collapsed ankles. The threshold question that must be addressed with respect to this claim (as with any claim seeking service connection) is whether he actually has a chronic ankle disability. In the absence of proof of a present disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The appellant's STRs are silent for complaints, treatment, of diagnosis of an ankle disability and his postservice treatment records do not show manifestations or diagnoses of chronic left and/or right ankle disabilities. The Board notes that postservice treatment records note complaints of ankle pain; however, a complaint of pain alone is not enough to establish that there is a disability. There must be competent medical evidence of underlying pathology. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.") As the appellant is not shown to have had a chronic ankle disability during the pendency of this claim, he has not presented a valid claim of service connection for such disability. See Brammer, 3 Vet. App. at 225. While the analysis does not need to proceed any further, the Board notes that the appellant's primary contention is that he has a bilateral ankle disability related to his pes planus/bilateral foot disability. As noted above, service connection for a bilateral foot disability has not been established. Accordingly, even if the record contained evidence that the appellant has a current ankle disability, this theory of entitlement lacks legal merit. See 38 C.F.R. § 3.310. Regarding the appellant's other general assertion suggesting that his bilateral ankle disability may have been aggravated by his military service, the record does not indicate or suggest that the appellant had a preexisting ankle disability that was aggravated by a period of his military service. Thus, considering the above, the appeal in this matter must be denied. Gilbert, 1 Vet. App. at 56. ORDER Service connection for a bilateral foot disability (claimed as pes planus) is denied. Service connection for a bilateral ankle disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs