Citation Nr: 1756876 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-08 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for bilateral pes planus (flat feet). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran served on active duty in the Army from May 12, 1976 to June 17, 1976 and on active duty for training in the Army National Guard from January 4, 1982 to June 23, 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In April 2016, the Veteran testified before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In July 2016, the Board remanded this matter for additional development. The development has been completed and the case has been returned to the Board for appellate review. FINDING OF FACT The Veteran's has congenital pes planus, and there was no disease or injury superimposed on it in service. CONCLUSION OF LAW Pes planus was not incurred in or aggravated by active military service. 38 U.S.C. §§ 1131, 1112, 1113, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Pes planus is not listed as a "chronic disease" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) does not apply. Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The one-year presumption does not apply to this case as pes planus is not listed in 38 C.F.R. § 3.309(a). Under VA regulations, every person employed in the active military, naval, or air service 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 where evidence of medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1132. Only such conditions as are recorded in examination reports are considered as noted at enlistment. 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a finding that the increase in disability is due to the natural progress of the disease. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of record. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. VA General Counsel has held that service connection can be granted for congenital diseases which are aggravated by service. See VAOPGCPREC 82-90 (July 18, 1990) (a disease considered by medical authorities to be of familial (or hereditary) origin by its very nature preexist claimants' military service; however, service connection for congenital, developmental or familial diseases could be granted if manifestations of the disease in service constituted aggravation of the condition). A defect is a structural or inherent abnormality or condition, which is more or less stationary in nature. A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Id. Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. However service connection is generally precluded by regulation for such "defects", because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Thus, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of the laws and regulations governing compensation for service-connected disabilities. See 38 C.F.R. § 3.303 (c); see also Quirin v. Shinseki, 22 Vet. App. 390, 394, 396, 397 (2009); Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). Service connection is only possible for a congenital defect if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. Competency of evidence differs from weight and credibility. The former 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"). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that pes planus was aggravated in service as a result of wearing boots that did not fit well. The Veteran had active service from May 1976 to June 1976. The May 1976 enlistment examination shows a normal clinical evaluation of the feet. Pes planus was not noted on the enlistment examination. Service treatment records show that the Veteran was examined by a podiatrist approximately two weeks after enlistment. The Veteran reported a long history of foot problems. He reported recurrent pain with long marching, standing, and running. He was diagnosed with congenital pes planus, existing prior to service. The report noted that the Veteran did not meet retention standards. A report of medical board proceedings dated in June 1976 recommended separation due to pes planus. Post-service VA treatment records reflect diagnoses of congenital pes planus. The Veteran had a VA examination in May 2014. The VA examiner diagnosed congenital pes planus. The examiner noted that a May 1976 entry in the service treatment records showed a long history of foot problems and recurrent pain with standing, marching, and running. The Veteran was diagnosed with congenital pes planus, not service aggravated and was deemed medically unfit for service. The examiner noted that the Veteran has a long history of foot problems prior to service. The examiner opined that there is no evidence in the service treatment records to indicate any aggravation of his pes planus during service. The examiner reasoned that the Veteran was medically boarded out in June 1976, well before any further aggravation beyond the natural progression of his pes planus would have occurred. The examiner noted that the Veteran now has severe diabetes, which complicate his medical picture and required the amputation of all 10 toes. In August 2016, the examiner provided an addendum opinion. The examiner opined that the Veteran's pes planus is considered a congenital defect. The examiner opined that it is less likely than not that a superimposed disease or injury during military service resulted in additional disability. The examiner noted that the Veteran has a documented history of pes planus. A Report of Medical History dated on 5/27/76 noted "bad feet." The Veteran complained of pain in both feet, and the impression was "rule out pes planus." In May 1976, a medical board proceeding found that the Veteran was unfit for enlistment due to pes planus. The examiner stated that any non-diagnosis of congenital pes planus either before or after May 1976 and June 1976 was in error, most likely as not due to an oversight. There are no positive medical opinions showing that the Veteran's congenital pes planus was aggravated by superimposed disease or injury in service. The Board has considered the Veteran's statements about his foot disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran is competent to identify flat feet. He is also competent to relate the symptoms that he experiences, but he is not competent to opine on whether there is a link between the his current foot disability and his service because such conclusions require specific, highly specialized, medical knowledge and training. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL is too "medically complex" for lay diagnosis based on symptoms); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a disorder capable of lay diagnosis). For the reasons set forth above, the Board finds that the Veteran entered service with congenital pes planus, which not subject to a superimposed injury or disease in service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. Therefore, entitlement to service connection for bilateral pes planus must be denied. There is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for pes planus is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs