Citation Nr: 1757501 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-36 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to July 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2011 and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, his bilateral pes planus was aggravated beyond its natural progression by his active service. 2. Resolving all reasonable doubt in favor of the Veteran, his peripheral neuropathy of the bilateral lower extremities is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus are met. 38 U.S.C. §§ 1111, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). 2. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities are met. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 rule, 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). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2017). Where there is "clear and unmistakable" evidence that the injury or disease claimed pre-existed service and was not aggravated during service, the presumption of soundness does not attach. Id. A preexisting injury or disease will be considered to have been aggravated by 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. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 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. § 1153 ; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Bilateral Pes Planus The medical evidence of record reflects that the Veteran was diagnosed with bilateral pes planus prior to active service. See, e.g. May 2013 Private Medical Opinion; see also July 1966 Pre-Induction Examination (documenting flat foot/pes planus as an abnormality). Despite this pre-existing disability, however, the pre-induction examiner determined that the Veteran was fit for duty. Nonetheless, for purposes of this analysis, the Veteran is not afforded the presumption of soundness with regard to his pes planus, given that "flat foot" was noted in his pre-induction examination report. If any in-service aggravation of a preexisting disorder noted at service entrance is shown, the in-service evidence of aggravation is considered sufficient to allow for service connection unless there is clear and unmistakable evidence that the disorder was not permanently aggravated beyond the natural progression of the condition during service. See 38 C.F.R. § 3.306. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase, permanent in nature, in the disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993). Thus, in this case, the presumption of aggravation may be for application. At his videoconference hearing, the Veteran testified that he started to experience problems with his feet in 1984 at Wright- Patterson Airforce Base. See May 2016 Videoconference Hearing Transcript. He reported that he had a feeling in his foot, which was very uncomfortable, and that it was awkward walking. Id. He said that he went to the clinic, where an evaluation was undertaken and he was prescribed with heel cups. Id. In May 2013, an opinion from the Veteran's private physician, Dr. C.R., confirmed the Veteran's diagnosis of pes planovalgus (pes planus). She opined that it is more likely than not that the Veteran's pes planus was moderately aggravated by 27 years of active military service, specifying that "weight-bearing line over or medial to great, tow, inward bowing of the tendon achilles [was] at approximately 10 percent." As the basis and rationale for her opinion, Dr. C.R. indicated that her opinion was based on her evaluation of his feet, and an x-ray and comments from another physician, Dr. J.M. Specifically, Dr. C.R. noted in her report that upon ordering an x-ray of the Veteran's feet, Dr. J.M. noted an increase in the talar declination angle on the lateral view, bilateral; an increase in the talocalcaneal angle of the April view, bilateral; degenerative changes of the matatarso-cuneiform joint bilateral and gapping of lesser metatarsal interspace; and that Dr. J.M.'s diagnoses indicated "ligamentous laxity, bilateral; Morton's neuroma bilateral and pes planus, bilateral. Furthermore, Dr. C.R. explained that the Veteran's medical records show that he had flat feet upon entry into military service, and was accepted. She further indicated that the Veteran told her that during 27 years of active military service, he wore field uniforms that required combat boots; experienced long periods of standing while participating in deployments and military exercises; marched in formation while in training classes; and participated in physical training programs annually. In December 2014, however, a VA examiner opined that the Veteran's pes planus clearly and unmistakably existed prior to service, and was not aggravated beyond its natural progression by an in-service, event, injury or illness. As the basis and rationale for his opinion, the VA examiner first defined "aggravation" as "a long standing effect due to an event resulting in worsening[,] hastening or deterioration of a condition." He further indicated that the Veteran did not meet the standard definition and that there was no evidence that he was actually treated for pes planus. The VA examiner further explained that "[c]linically and radiographically, symptomatic adult flat [ ] foot is a complex abnormality involving . . . three dimensions [(longitudinal arch; hind foot valgus; and forefoot abduction)] and multiple joints within the foot." He further explained that each measurement used to assess flatfoot is a two dimensional representation of this three-dimensional abnormality, "therefore, one must take into account all information available on both views in making an overall assessment of alignment." Upon providing this explanation, the VA examiner then explained that he had no idea what the angle measurements of the Veteran's foot were prior to service, during service, or immediately after service; and that if he had the measurements of specific areas, he could then make measurements and see the changes take place, noting, if any at all, changes throughout time. Accordingly, he concluded that he could not assume, but could only relate to the prior rating guidelines and findings. Considering both probative, but conflicting medical opinions, the Board finds that the evidence is in relative equipoise. Both the Veteran's testimony and the positive opinion indicate that the Veteran's pes planus increased during service. However, it cannot be concluded that there is clear and unmistakable evidence that the Veteran's bilateral pes planus increase was due to the natural progression of the condition during service. Thus, as the presumption of aggravation is for application and has not been rebutted, service connection for bilateral pes planus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017). Peripheral Neuropathy of the Bilateral Lower Extremities At his hearing, the Veteran relayed having tightness, numbness, tingling and pain in his legs. See May 2016 Videoconference Hearing Transcript. He analogized his pain to having some kind of glove over his foot. Id. According to the Veteran, he reported some problems with his legs when he was on active duty, and around 2006 or 2007, a neurologist diagnosed him with peripheral neuropathy. Id. In support of his claim of service connection for peripheral neuropathy of the bilateral lower extremities, the Veteran has provided a May 2013 medical opinion from a board certified podiatrist, Dr. C.R. In this opinion, she indicated that the Veteran's peripheral neuropathy was diagnosed through nerve testing that she ordered from another physician, Dr. M.O., in February 2007. Dr. C.R. opined that it is at least as likely as not that the Veteran's peripheral neuropathy had its onset while he was in active military service. As the basis and rationale for her opinion, she explained that the Veteran experiences cramps and spasms in his feet, tingling, numbness, and the sensation of wearing an invisible glove or shock, and that though peripheral neuropathy is normally associated with a diabetic patient, the Veteran's annual laboratory blood screening showed no evidence of diabetes. She further explained that the neuropathy "does not come from the foot shape, but may have come from some environmental or mechanical force that he was subjected to in the past." Finally, Dr. C.R. further indicated that the Veteran has no other known risk factors that may have precipitated his current condition related to peripheral neuropathy. The Board finds this medical opinion to be the most probative evidence of record, which is dispositive of this issue. This May 2013 medical opinion provides a clear, detailed rationale, which is based on a review of the Veteran's in-service and post-service medical records, as well as the Veteran's credible statements. In this regard, after a review of all evidence of record, the Board finds that the evidence is in relative equipoise. Therefore, resolving all reasonable doubt in favor of the Veteran, service connection for peripheral neuropathy of the bilateral lower extremities is warranted. ORDER Entitlement to service connection for bilateral pes planus is granted. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs