Citation Nr: 1750178 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 13-04 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a disability manifested by fallen arches. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from February 2, 1994 to June 6, 1994 (and is a Veteran by virtue of having established service connection for bilateral shin splints incurred during such service, rated 10 percent). This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, a videoconference hearing was held before the undersigned; a transcript is associated with the record. In April 2015, this matter was remanded for additional development. FINDING OF FACT Fallen arches were not manifested in service or for many years thereafter, and are not shown to be etiologically related to the Veteran's service or to have been caused or aggravated by his service-connected shin splints. CONCLUSION OF LAW Service connection for fallen arches is not warranted. 38 U.S.C.A. §§ 101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VA's duty to notify was satisfied by a letter in March 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires a Veterans Law Judge who conducts a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position. During the January 2015 hearing, the undersigned identified the issue and explained what is needed to substantiate the claim. Thereafter, the Board arranged (by remand) for substantial further development of evidence. A deficiency in the conduct of the hearing is not alleged. The Board finds that there was compliance with 38 C.F.R. § 3.103(c)(2), in accordance with Bryant. The Veteran's service treatment records (STRs) are associated with his record, and VA has obtained pertinent records he has identified. He was afforded VA examinations in December 2012, June 2015 and April 2017. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist). The RO has complied substantially with the Board's April 2015 remand directives. The Veteran has not identified any evidence that remains outstanding; VA's duty to assist is met. Legal Criteria Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 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 an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C.A. § 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Factual Background The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or does not show, with respect to the claim. The Veteran contends that he developed fallen arches secondary to his service-connected bilateral shin splint disability. His service treatment records (STRs) are silent for complaints, treatment, or diagnosis pertaining to fallen arches. A report of a May 2010 private evaluation for fallen arches and other disabilities notes the Veteran's report of fallen arches leading to chronic foot pain. On examination of the lower extremities, there was an "abnormal antalgic gait with right foot drag", tenderness to palpation of bilateral anterior tibiae, and no edema. The physician, Dr. Moore opined that the Veteran has a "severe bilateral flatfoot deformity" and his gait alteration has resulted in the development of secondary problems including shin splits. Dr. Moore concluded that the "Veteran's reported problems do logically derive from his known service connected injuries and exposures". On December 2012 VA examination, the Veteran reported that he began having sharp pain in his shins in basic training that later progressed to his legs and feet. He reported that he tired orthotics but they did not help. The diagnosis was flat feet. On physical examination, there was pain on use of the feet and pain on manipulation, however, the examiner noted that the pain was in the Veteran's shins. There was no indication of swelling on use, characteristic calluses or extreme tenderness of plantar surface. There was decreased longitudinal arch height and "inward" bowing of the Achilles tendon. It was noted that the Veteran occasionally used a cane. The examiner opined that the Veteran's flat feet were less likely than not caused by service or the result of service connected shin splints. In a February 2015 letter, Dr. Moore stated that the Veteran's "fallen arches/flat foot have been determined to be a consequential secondary related to his previous accepted condition of shin splints." In a February 2015 statement, the Veteran's private physician, Dr. Ellis stated, "it appears that the chronic shin splints [were a] contributor to this diagnosis of severe pes planus." On June 2015 VA examination, the Veteran reported functional loss or impartment of the feet due to pain. On examination, there was pain on use of the feet and decreased longitudinal; arch height of both feet. The examiner noted that there was no functional loss or pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the feet are used repeatedly over a period of time. The examiner opined that the Veteran does not have a current diagnosis of pes planus (flat feet). On April 2017 VA examination, the Veteran reported functional loss or impartment of the feet due to pain on prolonged standing and walking. The diagnoses were bilateral flat feet (pes planus) and plantar fasciitis. On examination, there was pain on use and manipulation of the feet. There was decreased longitudinal arch height of both feet and the weight bearing line was noted to fall over or medial to the great toe. There was no lower extremity deformity other than pes planus causing alteration of the weight bearing line and no "inward" bowing of the Achilles tendon". The examiner opined that the Veteran's pes planus is less likely than not related to his service-connected shin splints. He observed that there are no studies or reports in medical textbooks or literature that shin splints can cause or increase the risk of developing pes planus; however, there is support in medical literature that pes planus could aggravate, or increase the risk of developing, shin splints. The examiner further opined that it is less likely than not that the Veteran's bilateral pes planus was aggravated beyond natural progression due to his service-connected bilateral shin splints. He explained that the current examination found pes planus to be "asymptomatic" and opined that the mild tenderness noted in the heel area is due to the Veteran's bilateral ankle enthesopathy, and not pes planus. He stated, "[e]ssentially, there is no evidence on current exam of a permanent disability pertaining to his bilateral pes planus that could be attributed to aggravation beyond natural progression." Analysis It is not in dispute that the Veteran now has fallen arches (flat feet/pes planus); such pathology was diagnosed by private providers and on April 2017 VA examination. However, as such disability is not shown to have been manifested in service or clinically demonstrated prior to May 2010; direct service connection for the disability (on the basis that it was incurred or aggravated in service) is not warranted. The theory of entitlement proffered is primarily one of secondary service connection, i.e., that the Veteran's fallen arches were caused and/or aggravated by his service-connected shin splints. Whether or not fallen arches were indeed caused or aggravated by the Veteran's service-connected shin splints is a medical question, beyond the realm of common knowledge and incapable of resolution by lay observation. It requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The record includes both medical evidence that tends to support the Veteran's claim and medical evidence that is against his claim. The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71(1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In May 2010 Dr. Moore noted that the Veteran has a "severe bilateral flatfoot deformity" and that his gait alteration has resulted in the development of secondary problems including shin splits. This opinion supports the inverse of the relationship which must be established to substantiate the secondary service connection theory of entitlement proposed (what must be shown is that shin splints caused or aggravated the pes planus (fallen arches), not that the pes planus caused or aggravated shin splints). It therefore does not support the Veteran's claim. The Veteran has also presented February 2015 private opinions by Dr. Moore and Dr. Ellis. Both providers are medical professionals competent to offer medical opinions regarding the etiology of the Veteran's fallen arches; however, their opinions lack probative value. The opinion by Dr. Moore is unaccompanied by rationale that cites to supporting factual data; the opinion by Dr. Ellis is stated in speculative terms, i.e., it "appears that the chronic shin splints [were a] contributor" and it also is unaccompanied by rationale. The only competent (medical) evidence in the record that fully and adequately addresses whether the Veteran's fallen arches were caused or aggravated by his service-connected shin splints is found in the opinion offered on April 2017 VA examination, which is against the Veteran's claim. The provider expressed familiarity with the entire record and clearly explained the rationale for his opinion that the Veteran's pes planus was less likely than not caused or aggravated by his service-connected shin splints. The provider explained that a review of medical literature found no support for the proposition that shin splints can cause or increase the risk of developing pes planus, and that medical literature suggests that pes planus can aggravate or increase the risk developing shin splints (which does not support the secondary service connection theory of entitlement). The examiner also identified an alternative (nonservice-related) etiology for the foot pain noted on the physical examination, noting that mild tenderness noted on the heel is due to bilateral ankle enthesopathy, not pes planus, and indicated that the Veteran's pes planus is "asymptomatic" (which weighs against a finding that it was aggravated by shin splints). The Board finds the opinion to be probative evidence in the matter, and, in the absence of probative evidence to the contrary, persuasive. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim. Accordingly, his appeal seeking service connection for a disability manifested by fallen arches must be denied. ORDER Service connection for a disability manifested by fallen arches is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs