Citation Nr: 1626898 Decision Date: 07/06/16 Archive Date: 07/14/16 DOCKET NO. 09-39 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 2000 to November 2000, from December 2003 to March 2005, from June 2007 to August 2008, and from December 2010 to February 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Jackson, Mississippi, RO has jurisdiction of the current appeal. The Board has reviewed both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to ensure a total review of the evidence. In May 2014, the Board reopened and remanded the issue on appeal to the Agency of Original Jurisdiction (AOJ) in order to obtain service treatment (medical) records, service personnel records, and provide the Veteran with a VA examination with opinion regarding the etiology of the bilateral pes planus disability on appeal. Because the above-referenced development has been completed, the Board finds that the AOJ substantially complied with the May 2014 Board remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran has a current bilateral pes planus disability for VA compensation purposes. 2. The Veteran's bilateral pes planus preexisted service as it was noted upon service entrance. 3. The preexisting bilateral pes planus was permanently worsened during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral pes planus are met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative of any information, and any 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). In this case, the Board is granting service connection for bilateral pes planus, which constitutes a full grant of the benefit sought on appeal with respect to this claim. As there remains no aspect of this claim to be further substantiated, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Legal Authority Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A veteran is presumed 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 examination, acceptance, 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; 38 C.F.R. § 3.304. 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; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. §§ 3.304, 3.306. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 C.F.R. § 3.306. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection for Bilateral Pes Planus The veteran contends that service connection for bilateral pes planus is warranted because his congenital pes planus was considerably worsened by his duties as a convoy truck driver while serving in Iraq from 2003 to 2005. The Veteran reported bilateral heel pain manifested by feelings of needle-like pain with weight-bearing. The Veteran asserted that he received post-separation treatment at VA for severe congenital pes planus (symptomatic) on July 11, 2005, within one year of release from the active duty period from December 2003 to March 2005. See, e.g., December 2011 VA Form 646. The Board finds that the Veteran has a current disability of bilateral pes planus. The November 2014 VA examination report shows a diagnosis of bilateral pes planus. The Board finds that the Veteran's bilateral pes planus preexisted service and was "noted" upon service entrance. The December 1999 service enlistment examination noted "severe" asymptomatic pes planus. As stated above, the Veteran has multiple active duty service periods, and the bilateral pes planus was "noted" upon entry into the first active duty service period from July 2000 to November 2002. Therefore, bilateral pes planus is considered "noted" for all subsequent active service periods, especially in light of the absence of service entrance examinations upon entrance into any of the subsequent active service periods. Based on the foregoing, in order to establish service connection for bilateral pes planus, there has to be a showing of aggravation (worsening beyond normal progression) of bilateral pes planus during any of the active service duty periods. After a review of all the evidence, both lay and medical, the Board finds that the evidence is in relative equipoise on the question of whether the Veteran's preexisting bilateral pes planus underwent a permanent worsening during service. As stated above, the December 1999 service enlistment examination noted "severe" asymptomatic pes planus. While the service treatment records for the active service periods from July 2000 to November 2000, and from December 2003 to March 2005 do not show any complaints or treatment pertaining to the bilateral pes planus disability, a July 2005 VA treatment record shows complaints of foot pain. The February 2006 VA examination report shows that the Veteran reported that he started experiencing bilateral foot pain when he joined the military, and that he had current bilateral foot pain, which he rated at 8 to 10 out of 10 in severity, and indicated that it was relieved by rest (no weight-bearing). Therefore, the evidence shows that the Veteran's bilateral pes planus was symptomatic approximately four months after separation from the active service period from December 2003 to March 2005, which weighs in favor of finding that the bilateral pes planus worsened during the active service period from December 2003 to March 2005. Service treatment records for the active service period from June 2007 to August 2008 demonstrates further worsening of the bilateral pes planus. An October 2007 service treatment record shows that the Veteran had swelling in both feet, as well as bilateral foot pain as a result of running. A January 2008 service treatment record shows a history of severe pes planus worsened with prolonged walking and running. The January 2008 service clinician assessed bilateral severe symptomatic pes planus. Service treatment records during this period also show that the Veteran was placed on permanent profile with limitations on running, marching, and jumping jacks as a result of the bilateral pes planus. See, e.g., May 2008 physical profile. Based on the foregoing, the evidence reflects that the underlying condition of bilateral pes planus, as contrasted to symptoms, was worsened during service. Hunt, 1 Vet. App. at 297. Evidence weighing against a finding that the Veteran's bilateral pes planus disability was aggravated in service includes the April 2015 VA examiner's opinion that the Veteran's bilateral pes planus, which clearly and unmistakable preexisted service, was not less likely than not aggravated beyond its natural progression by the Veteran's military service. In reaching this conclusion, the April 2015 VA examiner reasoned that the Veteran had bilateral pes planus prior to his military service, that he was placed on a permanent profile while in service, and had his physical training requirements reduced to compensate for his complaints of foot pain. The April 2015 VA examiner explained that the Veteran would have foot pain as a result of his flatfeet regardless of whether or not he served in the military, especially that that the Veteran's physical training requirements were reduced compared to other soldiers, and was treated appropriately while in the service for his feet by receiving arch supports. Because the evidence shows worsening occurred during service, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner, 370 F.3d at 1096. The Board finds that the evidence in this case is not clear and unmistakable to show that no aggravation of the pre-existing bilateral pes planus took place; therefore, the Board finds that the preexisting bilateral pes planus was aggravated by service, that is, that the preexisting bilateral pes planus worsened beyond its normal progression during service to warrant service connection for bilateral pes planus. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. ORDER Service connection for bilateral pes planus is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs