Citation Nr: 1613137	
Decision Date: 03/31/16    Archive Date: 04/07/16

DOCKET NO.  11-16 022	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a bilateral foot disorder.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Gordon, Associate Counsel 







INTRODUCTION

The Veteran served on active duty from July 1958 to May 1959. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In January 2014, the Board remanded this matter for further evidentiary development.  As will be discussed in greater detail below, a review of the record reveals substantial compliance with the Board's January 2014 remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

This appeal was processed using VBMS (the Veterans Benefits Management System) and the Virtual VA paperless processing system.  Accordingly, any future consideration of this Veteran's case shall take into consideration the existence of these electronic records.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The evidence clearly and unmistakably shows that the Veteran's bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first  metatarsophalangeal (MTP) joint, and right foot plantar calcaneal spur with hammertoe deformities, preexisted service and clearly and unmistakably was not aggravated by service.



CONCLUSION OF LAW

Entitlement to service connection for a bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities, is not warranted.  38 U.S.C.A. §§ 1111, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2013)); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2013), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A.       § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. 

In February and March 2009, VCAA letters were issued to the Veteran with regard to his claim of service connection.  The letters notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date.  Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The letters also advised the Veteran that his military records may have been destroyed in a fire at the National Archives and Records Administration (NARA) in July 1973 and asked him to complete an enclosed NARA form (NA Form 13055, Request for Information Needed to Reconstruct Medical Data) to allow the RO to request a thorough search for his records.  He completed and returned the form in April 2009.  The letters also listed other types of evidence he could submit in support of his claim.  The RO invited him to submit information he may have as to the location of any service treatment records or to submit any service treatment records he may have in his possession.  

In May 2009, the RO issued a memorandum indicating that the Veteran's service records were fire related.  In these circumstances, when a Veteran's STRs are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened.  Milostan v. Brown, 4 Vet. App. 250, 252 (1993).  The Board will undertake its analysis consistent with these principles.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 
The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains post-service private and VA treatment records, and lay statements of the Veteran.  The Board also notes that the June 2014 VA examination was in substantial compliance with the Board's January 2014 remand instructions because it was adequate to decide the claim as explained below.  In addition, all current VA treatment records were associated with the claims file.  Accordingly, the Board finds that there is substantial compliance with the Board's January 2014 remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  There is no indication of relevant, outstanding records that would support the Veteran's claim.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).  

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements with regard to the claim decided herein.

II. Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131. 

In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b).  In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry."  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  In addition, "the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service."  Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). 

If the presumption of soundness applies, the burden then shifts to "the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service."  Wagner, 370 F.3d at 1096.  Accordingly, once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant.  This burden must be met by "affirmative evidence" demonstrating that there was no aggravation.  See id.  Conversely, the burden is not met by finding "that the record contains insufficient evidence of aggravation."  See id.  Finally, "[i]f this burden is met, then the veteran is not entitled to service-connected benefits."  Wagner, 370 F.3d at 1096.

The VA General Counsel has explained that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes.  In this regard, it is noted that congenital diseases may be service connected if the evidence as a whole shows that the congenital disease was incurred or aggravated during service within the meaning of VA regulations.  A congenital or developmental defect, on the other hand, is not service connectable in its own right, although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service.  See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45711 -01) (Oct. 30, 1990).

III. Analysis

The Veteran seeks entitlement to service connection for a bilateral foot disorder. 

The Veteran's main contention is that he had bilateral foot symptoms of pain in his arches while in-service and that such pain has progressed since that time.

As noted above, the Veteran's service treatment records are not available for review.  As such, although the Veteran's entrance examination is not currently of record and is presumed to be lost, the Veteran will be presumed to have been sound upon entry into service.  See Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a Veteran's entrance examination has been lost or destroyed while in VA custody)).  In addition, based on competent lay testimony provided by the Veteran, and resolving reasonable doubt in the Veteran's favor, the Board will consider the Veteran's foot disorders, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities to have manifested in-service.  As the Veteran was presumed sound at entry into service and a bilateral foot disorder, to include those named above, later manifested in-service, the Board finds that the presumption of soundness is for application.   Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (stating "the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service.").

As noted above, the Board must rebut the presumption of soundness by showing by clear and unmistakable evidence both that the Veteran's bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities were not aggravated by service.  

With regards to whether the Veteran's bilateral foot disorder pre-existed service, the Board finds highly probative the June 2014 VA medical opinion that stated that first, the Veteran's bilateral pes planus was bilateral and equal suggesting a developmental deformity.  Additionally, the June 2014 VA examiner found that the Veteran's left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint and right foot plantar calcaneal spur with hammertoe deformities were also developmental and evidenced age related changes or conditions.  Although the VA examiner's rationale was not extensive, his reasoning that the bilateral and equal nature of the pes planus indicated that it was developmental was sufficient to indicate that it was a congenital disease that preexisted service.  See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).

Based on the above, the Board concludes that the Veteran's bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities, is a congenital disease.  As such, the Board concludes that the Veteran's bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities, clearly and unmistakably pre-existed service.

With regards to whether the Veteran's bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities, was not aggravated by service, the Board again finds highly probative the June 2014 VA medical opinion.  The medical professional reviewed the Veteran's claims file and the Veteran's contentions in the course of providing this opinion.  The examiner's opinion stated that for each condition, it was less likely than not that such was caused by, related to, or worsened beyond its natural progression by the Veteran's military service.  Reading the examination report as a whole and in the context of the evidence of record, the rationale that the pes planus was bilateral and equal and that the Veteran's left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint and right foot plantar calcaneal spur with hammertoe deformities were also developmental and evidenced age related changes reflects was sufficient to clearly and unmistakably indicate that the disorders were not aggravated by service.  Acevedo, 25 Vet. App. at 294.  Thus, the Board concludes that the Veteran's bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities, clearly and unmistakably was not aggravated by service. 

The Board additionally notes, as discussed above, that "the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not."  Horn v. Shinseki, 25 Vet. App. 231, 235 (2012).  The Board notes that VA must show by "affirmative evidence" that the Veteran's preexisting disability was clearly and unmistakably not aggravated by service.  See id.  The Board finds the June 2014 VA medical opinion to be such affirmative evidence that clearly and unmistakably shows that the Veteran's bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities, was not aggravated by service.  See id. at 243 (stating that "the Secretary may attempt to carry his evidentiary burden with a post-service medical opinion" and that "[i]f a physician is able to support such a conclusion with a suitable medical explanation, supported by extant medical knowledge and the facts of record, such an opinion might constitute or contribute to clear and unmistakable evidence of lack of aggravation").

The Board has considered the Veteran's arguments and his contention that he should be entitled to service connection for his bilateral foot disorder because it manifested in-service.  As discussed above, however, this is not the determinative issue in this case.  The Board notes the Veteran's statement that he was diagnosed with bilateral flat feet in 1958, which ultimately resulted in his being discharged from service and that it had been a problem since service, see June 2014 VA Examination, and finds the Veteran competent to state that he suffered from a bilateral foot disorder in service.  Based on the nature of the Veteran's bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities, as a congenital disease, as indicated by the June 2014 VA examiner, the issue of the presumption of soundness was raised.  As such, as addressed above, the determinative issue in this case became whether the Veteran's bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities, preexisted and was not aggravated by the Veteran's active service.  The Veteran (and his representative) did not present any argument relating to this issue.  To the extent that the Veteran has indicated that his foot disorder did not preexist service or was aggravated thereby, the Board finds the specific, reasoned opinion of the trained health care professional who conducted the June 2014 VA examination to be of significantly greater probative weight than the general lay assertions, reflecting clear and unmistakable evidence of both preexistence and lack of aggravation.  See Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004) ("The clear and unmistakable evidentiary standard . . . does not require the absence of conflicting evidence").

For the foregoing reasons, the evidence of record reflects that the Veteran's bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities, clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service.  As cited above, if VA is able to meet the burden of showing such, the Veteran is not entitled to service connection.  Wagner, 370 F.3d at 1096 (stating "[i]f this burden is met, then the veteran is not entitled to service-connected benefits").  Thus, entitlement to service connection for a bilateral foot disorder, to include to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities, is not warranted.


ORDER

Entitlement to service connection for a bilateral foot disorder, to include bilateral pes planus, left foot mild hallux valgus with plantar heel spur and mild arthritic changes of the first MTP joint, and right foot plantar calcaneal spur with hammertoe deformities, is denied.



____________________________________________
Jonathan Hager 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs