Citation Nr: 1624305 Decision Date: 06/16/16 Archive Date: 06/29/16 DOCKET NO. 10-21 572 ) 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 Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from December 1987 to November 1989. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, the Veteran testified before the undersigned Veterans Law Judge, seated at the RO. A transcript of the hearing has been associated with the claims folder. In May 2014, the Board remanded the case for further development. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). A December 2014 rating decision granted service connection for bilateral hammertoes. Thus, that issue is no longer on appeal. FINDINGS OF FACT 1. Bilateral pes planus pre-existed entry into active service. 2. There was no increase in disability of the pre-existing bilateral pes planus during active service. CONCLUSION OF LAW Bilateral pes planus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2015). Proper notice must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran received 38 U.S.C.A. § 5103(a)-compliant notice in May 2009. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting in obtaining service treatment records and pertinent post-service treatment records and providing an examination or obtaining an opinion when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, and post-service reports of VA treatment and examination. In a May 2014 statement, the Veteran indicated that the private physician who had treated him in the 1990s was deceased and he was unable to locate the treatment records. Thus, no private medical records are available, and VA's duty to assist in obtaining private medical records has been satisfied. Also of record are the Veteran's statements in support of the claim. The Board has reviewed those statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. VA provided the Veteran with examinations in June 2012 and October 2014 to ascertain the nature and etiology of his bilateral pes planus. The Board finds the examination reports to be thorough and adequate. The examiners interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to decide the claim. Relevant opinions were provided. The Board finds the opinions to be adequate, as they were based on a full reading of the records in the claims folder as well as the Veteran's own statements. Given the above, the Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). 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) (2015). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active 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). In this case, the Veteran claims that his bilateral pes planus was incurred in or aggravated by active service. The service treatment records show that mild, asymptomatic, bilateral pes planus was noted at his October 1987 enlistment examination. They also show numerous treatments for foot complaints. However, the diagnoses rendered were those of metatarsalgia, hammertoes, and claw toes. While pes planus was noted in January 1988, it was described as mild. While pes planus was noted in an October 1988 consultation sheet, the consultation had been requested for bilateral toe pain and the examiner noted only that the Veteran had pes planus. A June 1989 examination for the medical evaluation board only noted a diagnosis of hammertoes. A February 1990 VA examination revealed a diagnosis of bilateral hammertoe deformities. At a June 2012 VA examination, the Veteran reported that he has always had hammertoes as long as he can remember. Examination revealed diagnoses of metatarsalgia and hammertoes. The examiner stated that pre-existing pes planus was noted in service. The examiner stated that the Veteran complained of foot pain in service at which time hammertoes were noted. The examiner stated that current examination showed normal appearing arches with non-weightbearing, with arches flattening out with weightbearing but not touching the floor. The examiner stated that this was not clinically significant pes planus. At an October 2014 VA examination, the Veteran reported that he had not been aware that he had pes planus prior to service and did not recall having any pain in the feet prior to service. He reported that he developed foot pain in service which he attributed to wearing boots. He reported a post-service history of surgeries for hammertoes. He reported that recently he has developed paresthesias and numbness in both feet. Examination revealed diagnoses of hammertoes and pes planus. The examiner stated that the Veteran's current symptoms of pain and paresthesias are not related to pes planus, but the hammertoe deformities and surgeries contribute to the foot pain. The examiner stated that the physical demands of service contributed to the progression of the Veteran's hammertoe deformity. The examiner opined that the Veteran's hammertoe deformity was permanently aggravated by service. The examiner stated that the pes planus predated service and does not significantly contribute to current symptoms. The examiner opined that the Veteran's pes planus was not permanently aggravated by service. Given the service enlistment examination, the Board finds that the Veteran's bilateral pes planus pre-existed entry into active service. While the Veteran was treated in service for foot complaints, they were diagnosed as metatarsalgia and hammertoes. There is no evidence of an increase in disability of the pes planus during active service. Post service, the February 1990 VA examination did not reveal pes planus and the June 2012 VA examiner stated that the Veteran did not have clinically significant pes planus. The lack of findings shortly after discharge from active service and essentially a finding of only mild pes planus over 20 years later further indicate that the pes planus did not undergo an increase in disability due to active service. Moreover, the October 2014 VA examiner opined that the Veteran's pes planus had not been permanently aggravated by active service. As the opinion was based on a review of the claims folder and examination of the Veteran, the Board finds it to be of great probative value, particularly as the examiner opined that another disability, that of a hammertoe deformity, had been permanently aggravated by active service. See Hayes v. Brown, 5 Vet. App. 60 (1993). That is the only competent medical opinion of record and, unfortunately, it is against the claim. Given the above, the Board finds that there was no increase in disability of the pre-existing bilateral pes planus during active service. Thus, the Board concludes that bilateral pes planus was not incurred in or aggravated by active service. A lay person is competent to give evidence about observable symptoms such as foot pain. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is also competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the question of aggravation extends beyond an immediately observable cause-and-effect relationship. The Veteran, as a lay person, is not competent to address the question of aggravation. Also, as discussed, the medical evidence shows that his pes planus was not aggravated by active service. In conclusion, service connection for bilateral pes planus is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral pes planus is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs