Citation Nr: 1617062	
Decision Date: 04/28/16    Archive Date: 05/04/16

DOCKET NO.  07-26 599	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for bilateral pes planus.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

H.M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from November 1987 to November 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Board previously remanded this appeal in February 2009, February 2013, July 2013, July 2014, and July 2015.

The Board notes that the Veteran's claim has been reviewed using the Veterans Benefits Management System (VBMS), VA's electronic system for document record keeping, and relevant documents contained therein are part of the Veteran's electronic claims file.


FINDING OF FACT

The Veteran's bilateral pes planus was noted at entry; bilateral pes planus did not permanently increase in severity during service, and is not otherwise shown to be related to service.


CONCLUSION OF LAW

The preexisting bilateral pes planus was not aggravated by service.  38 U.S.C.A. §§ 1101, 1111, 1131, 1153 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2015).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim has been eliminated by the Secretary.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

A VCAA letter dated in October 2006 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2015); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ( stating that "no error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been continuously represented by an experienced state service organization and has submitted arguments in support of his claim.  These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (indicating that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records (STRs) and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  

Numerous attempts were made to obtain the Veteran's Dallas VA Medical Center (VAMC) treatment records dated from November 1991 to June 1999.  There have been multiple responses in 2014 and 2015 showing the unavailability of those records.  In an April 2015 report of contact, the AOJ found noted it followed all procedures to obtain the outstanding records and all efforts to obtain them have been exhausted.  They concluded that either the records do not exist or are irretrievable.  Additionally, the AOJ sent the Veteran's a supplemental statement of the case (SSOC) in January 2016, which indicated the steps taken to obtain the outstanding records and the negative response from the Dallas VAMC.  In February 2016, the Veteran indicated that he had reviewed the SSOC and did not have any additional evidence to submit.  Finally, in a July 2014 statement, the Veteran specifically indicated that he did not have any records dated prior to July 1999 in his possession.  The Board finds that all reasonable attempts have been made to obtain the Dallas VAMC treatment records dated from November 1991 to June 1999, and any additional attempts would be futile.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2015). 

In this case, the Veteran was provided VA examinations in April 2013 and May 2014.  The examiners considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducted physical examinations.  Ultimately, the examiners concluded that the Veteran's preexisting bilateral pes planus was not aggravated during active service.  As the opinions were based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinions provided, the Board concludes that the opinions obtained in this case are adequate.  Given the foregoing, the Board finds the evidence of record to be complete and sufficient upon which to base a decision with respect to the Veteran's claim for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim.

Given the exhaustive attempts to associate outstanding treatment records; the formal finding of unavailability of the Dallas VAMC records dated between November 1991 and June 1991; the Veteran's response to the SSOC indicating he had no further evidence to submit; and the subsequent readjudication of the claim; the Board finds that there has been substantial compliance with its July 2015 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria

Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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).

Moreover, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2014).  

In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service.  The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 

However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease."  38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2015).  For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.  38 C.F.R. § 3.306(b).  Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened.  See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

Given these provisions, the standard of proving a claim based on "aggravation" changes depending on whether the pre-existing disability was noted on the entrance examination report, or whether it was not but the presumption of soundness is nevertheless rebutted.  For a condition noted at entry, the pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) .

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

In adjudicating these claims, the Board must assess the competency and credibility of the veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge.  Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994).

Factual Background and Analysis

The Veteran contends that his military service aggravated his preexisting bilateral pes planus.  He contends that the Marines gave him a medical waiver due to his bilateral pes planus, and his foot condition worsened due to excessive standing, marching, and running.  

A review of the Veteran's service treatment records shows a notation of moderate, asymptomatic bilateral pes planus during his July 1987 enlistment physical examination.  The examiner indicated that the bilateral pes planus was not considered disabling.  These records do not show any formal complaints of foot problems during service, nor is there a notation that he required a waiver to enlist.  Upon discharge examination in October 1991, there were no notations of any foot disability or complaints, and musculoskeletal examination was within normal limits.  

Following service, the Veteran was treated for bilateral foot pain-especially in the arches.  In 2004 private podiatry notes, the Veteran complained of left foot pain.  He was noted to have bilateral pes planus and was diagnosed as having plantar fasciitis and tendonitis in the left foot.  

2005-2006 VA treatment notes show complaints of bilateral foot pain and a diagnosis of bilateral "pes planus, symptomatic, chronic for the last nine years."  X-rays showed mild degenerative joint disease of the feet.  He continues to receive treatment for his bilateral foot complaints, but these records do not link any current foot pain to his military service, nor do they show that his preexisting bilateral pes planus was aggravated by his military service.  His foot pain was attributed to long hours of standing at his factory job.   

During the Veteran's May 2012 DRO hearing, he denied seeking treatment for foot pain during service, but contended he has had foot pain since.  He recalled going to the Dallas VAMC after service and they gave him pain pills and shoe inserts.  He described having continuous foot problems since service.  

In April 2013, the Veteran was afforded a VA examination of the feet, during which the examiner diagnosed bilateral pes planus.  Following review of the claims file, and interview and examination of the Veteran, the examiner opined that it is less likely than not that the preexisting bilateral pes planus disability was permanently increased in severity during service.  In reaching this conclusion, the examiner noted that:

The STRs do mention moderate bilateral pes planus on entrance exam in 1987; however, there is no further mention of it in the STRs after that, by either the Veteran or the clinic.

      Separation exam in 1991 also is silent on the issue of flat feet.
      
      Clinical exam today does confirm moderate bilateral pes planus (flat      
      feet).

Thus, the service aggravation of a pre-existing condition is not substantiated here at all.

The Veteran was afforded another VA examination of the feet in May 2014, during which his bilateral pes planus diagnosis was confirmed.  He reported having been granted a waiver for his bilateral pes planus noted at enlistment, but denied seeking treatment for his feet in service.  He reported that when he left active duty, he was told by a medical provider that he may have torn a tendon in his arch.  He stated that once he left service, his feet got worse.  Following review of the claims file, and interview and examination of the Veteran, the examiner opined that his "bilateral pes planus condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness."  In reaching this conclusion, the examiner provided the following rationale:

Although moderate asymptomatic pes planus is noted on the Veteran's enlistment physical, STRs are silent for treatment for symptomatic pes planus or any type of foot pain during active duty service.  In addition, the Veteran was evaluated and treated by his PCP for pes planus and foot pain.  However, the evaluations were after separation from active duty service.  Therefore, the Veteran's pre-existing bilateral pes planus condition was not aggravated beyond its natural progression by an in-service injury, event, or illness.  I agree with previous provider's opinion.

There is no clinical opinion to the contrary.  

Upon careful review of the evidence of record, the Board finds that there is no credible lay evidence or competent medical evidence suggesting that the claimed disabilility increased in severity during service.

First, the Veteran's bilateral pes planus was noted upon enlistment into service-as such, he is not presumed sound as to that disability.  In order for the presumption of aggravation to arise, the evidence must show that there was a permanent increase in the severity of bilateral pes planus during service.

As discussed below, the Board finds that the opinions provided by the April 2013 and May 2014 examiners are the most probative evidence as to the etiology of the Veteran's claimed bilateral foot disability.  As noted, these examiners found that the Veteran's bilateral pes planus was not aggravated during his period of active duty.  Their opinions were based upon the evidence as a whole-including the Veteran's contentions, his reported history, and the medical evidence of record.  They both provided a detailed rationale for the opinions provided and they are consistent with the medical evidence of record. 

The Board notes that the only probative evidence that the Veteran's bilateral pes planus worsened during his period of active service are the Veteran's own lay assertions.  In this regard, the Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to report pain while standing, marching, or running during service.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran contends that his bilateral foot problems were aggravated during service, but in his May 2014 examination, he reported that his symptoms had worsened following service.  The medical evidence of record, however, does not support these assertions and, indeed, suggests otherwise. 

The Veteran did not report any bilateral foot problems during service and the available post-service treatment records dated as early as 2005 show complaints of bilateral foot pain that was associated with his work in a factory.  During VA treatment in the mid-2000s, he did not report any incident or worsening foot symptoms during service.  In connection with his original service connection claim in September 1999, he never reported any increasing foot pain or problems.  In addition, VA treatment notes dated in 2005 reflect that he reported having chronic symptoms for nine years, which would place the onset several years after separation.

Thus, to the extent that the Veteran has asserted that he first experienced foot problems in service or experienced an aggravation of foot problems during service, the Board must find such an assertion to not be credible.  Again, there were no notations in service of any foot problems or complaints, nor did he report any foot symptoms soon after discharge from service.  

Additionally, the Board finds that the Veteran's contention that he required a waiver for his bilateral pes planus in order to enlist in the Marine Corps is not credible.  The service treatment records do not show that he was granted a waiver, and the April 2013 VA examiner noted that there was " no waiver indicated on Enlistment physical (to include all PULHES-physical limitations codes are all "1"-representing no physical limitations as well as no waivers required."

Furthermore, laypersons generally are not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because they do not have the requisite medical knowledge or training.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). 

Additionally, no VA treatment record or VA examination report indicates that his bilateral foot problems were aggravated by service as contended by the Veteran.  Further, the VA examiners of record have found no chronic worsening of bilateral foot symptoms and have specifically noted that his bilateral pes planus was moderate prior to service and records following service show continued notations of bilateral pes planus and bilateral foot pain, but without any finding of severe symptoms.  In other words, no clinical evidence of worsening symptoms.  As such, the competent and credible examiners found that the Veteran's bilateral pes planus was not aggravated during service.  The Board finds that the April 2013 and May 2014 opinions made by medical professionals are far more probative than the lay statements provided by the Veteran. 

Given the complex nature of the Veteran's bilateral foot complaints, the Board affords far greater probative weight to the expert opinions of the medical professionals of record who, to the extent such opinions are of record, have universally concluded that the Veteran's bilateral pes planus was not aggravated beyond its natural progression by his military service.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).

In summary, the credible and probative evidence of record establishes that the Veteran's bilateral pes planus preexisted service and did not worsen therein.  As such, the Board finds that the presumption of aggravation found in 38 U.S.C.A. § 1153  and 38 C.F.R. § 3.306 does not arise, and that the preponderance of the evidence is otherwise against finding that the claimed disability was related to service.  Browder v. Derwinski, 1 Vet. App. 204, 206  -07 (1991).  The claim of service connection for bilateral flat feet must therefore be denied.


ORDER

Service connection for bilateral pes planus is denied.  



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs