Citation Nr: 1801334 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-00 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for right knee osteoarthritis. 3. Entitlement to service connection for pes planus. 4. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for a back disability and right knee osteoarthritis, and reopened claims for service connection for headaches and pes planus based upon new and material evidence, but continued to deny the claims on the merits. In November 2015, the Veteran testified at a Travel Board hearing before the undersigned Veteran's Law Judge. A transcript of the hearing is associated with the claims file. In February 2016, the Board found that new and material evidence had been received to reopen the claims for headaches and pes planus. The Board then remanded the case for further development of the record, including obtaining outstanding records and VA examinations and medical opinions. There has been substantial compliance with the requested development. Stegall v. West, 11 Vet. App. 268 (1998); see Dyment v. West, 13 Vet. App. 141 (1999). Subsequent to the March 2017 supplemental statement of the case (SSOC), the Veteran submitted additional evidence. The Veteran waived consideration of the evidence by the RO; therefore, the Veteran is not prejudiced by the Board proceeding with adjudication of the claims. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's current back disability has not been shown to be related to service. 2. The Veteran's right knee disability has not been shown to be related to service. 3. The Veteran's pes planus existed prior to service and is a congenital defect. 4. The Veteran's pes planus is not caused by a superimposed injury or disease of the back. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (2016). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (2016). 3. The criteria for service connection for pes planus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1113, 1131, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5013A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim at issue by notice letter dated in July 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R § 3.159(c). Here, the Veteran's service records, VA records, and private treatment records identified by the Veteran have been obtained and associated with the claims file. The Veteran was afforded VA examinations in November 2010 and April 2016. The examinations are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports reflect that relevant records were reviewed and the examiner personally interviewed and examined the Veteran, including eliciting a history from him, and offered opinions. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection Laws and Regulations Service connection may be granted for disability resulting 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, arthritis is a chronic disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do apply. Fountain v. McDonald, 27 Vet. App. 258, 274-75; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of a "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such 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 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. At the time of the service entrance examination, every veteran 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 examination, acceptance, and 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. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). Where a disorder is noted on service entrance or a Veteran is otherwise not presumed sound on entrance, 38 U.S.C.A. § 1153 applies. In such claims, the evidence must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). "If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease.'" Wagner, 370 F.3d at 1096 (citing 38 U.S.C.A. § 1153). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306. However, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin v. Shinseki, 22 Vet. App. 390 (2009) (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"). For purposes of determining whether a disorder is a congenital defect or a familiar disease, VA interprets the terms "disease" and "defects" as being mutually exclusive. "Disease" is broadly 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. See VAOPGCPREC 82-90 (citing Dorland's Illustrated Medical Dictionary 385 (26th Ed. 1974)). On the other hand, the term "defect," viewed in the context of 38 C.F.R. § 3.303(c), is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between "disease" and "defect," indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). 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 v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include 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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of a 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). 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 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 veteran. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). Analysis Back disability The Veteran contends that service connection is warranted for a back disability. Specifically, the Veteran states that he first developed back problems from the rigors of basic training and that his duties during active duty as a food specialist required daily lifting and moving of large, heavy cooking equipment and foodstuffs. See November 2015 hearing transcript; see also April 2017 VA Form 21-4138 (Statement in Support of Claim). The Veteran states that he went to sick call quite often for his back pain and that his back was treated with shots and pills. See November 2015 hearing transcript. On his September 1965 entrance examination, the Veteran denied arthritis or swollen or painful joints, but did check that he had a bone, joint, or other deformity. The Veteran noted that he had broken a finger on his right hand. The examiner found that the Veteran did not have a bone deformity and upon objective examination, found the Veteran's spine to be normal. On his August 1967 separation examination, the Veteran denied having recurrent back pain, arthritis, swollen or painful joints, or a bone, joint, or other deformity. Upon objective examination, his spine was found normal. The Veteran's service treatment records are otherwise silent with regards to complaints of or treatment for back pain. The Veteran states that he began going to the Viera VA facility about a year or two after he got out of service. See November 2015 hearing transcript. However, the Veteran's post-service treatment records are silent for complaints of back pain until March 2010, when the Veteran reported with complaints of severe back pain which began about a month prior and that radiated down his right leg. The Veteran was subsequently diagnosed with degenerative disc disease. See March 2010 private treatment records. The Veteran was afforded a VA examination in April 2016. The examiner noted that the Veteran reported onset of low back pain while in service but was unable to attribute onset to a specific injury or event. The examiner noted that the Veteran was diagnosed with degenerative disc disease of the lumbar spine with disc herniation and stenosis in 2010. The examiner found that the Veteran's entrance and separation examinations were subjectively and objectively normal with regards to the Veteran's back and spine and that the Veteran's service treatment records were silent for back complaints or treatment. Furthermore, the Veteran's post-service treatment records were silent for complaints of back pain until March 2010, when it was noted by the treating physician that the Veteran reported severe back and leg pain for about a month, and that he had been fine prior to that. The examiner noted that the Veteran reported seeking treatment at the Viera VA facility immediately following separation from service; however, the examiner reported that the specific VA clinic did not exist at that time. The examiner noted that the Veteran was diagnosed with degenerative disc disease, which, according to medical literature, is primarily due to aging and can occur at a faster rate in those of working age with a genetic component of predisposition, as well as environmental factors. After reviewing the evidence, including the initial presentation of back pain first in 2010 and the risk factors and causes of degenerative disc disease, the examiner opined that the Veteran's degenerative disc disease was less likely as not due to or a result of active service, but rather it was more likely due to the natural aging process as well as genetic predisposition combined with work history. The Board finds the April 2016 VA examiner's opinion persuasive, as the opinion is informed by a thorough review and analysis of the Veteran's service treatment records, post-service treatment records, and medical literature. The examiner's opinion reflects clear and unequivocal conclusions regarding the relationship between the Veteran's service treatment records, his post-service treatment records, and his current back disability which presented in 2010 and for which the Veteran reported being fine prior to that. The reasoning adequately shows that the examiner's conclusions are supported by the relevant and material information. The opinion is factually accurate, fully articulated, and based on sound reasoning. Thus, the opinion carries significant probative weight. The Board acknowledges that a claimant is generally competent to introduce lay testimony of observable symptoms of disability and continuity of such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, as a lay person, the Veteran is not competent to provide a medical diagnosis or nexus regarding his current back disability and his active service; such a matter requires medical expertise and laboratory testing. See id. at 1377 (noting general competence to testify as to symptoms but not to provide medical diagnosis). As such, the Board finds the Veteran's representations in this regard to be of extremely limited probative value and significantly outweighed by the opinions expressed concerning the relationship between the Veteran's current back disability and his active service in the above compensation examination medical opinions. Regarding the recent diagnosis of degenerative disc disease, service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. There is no medical evidence of arthritis until years after the Veteran's separation from service. The Board acknowledges that, because arthritis is considered a "chronic" disability, the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claim of service connection for a back disability. As arthritis was not noted in service, and as a notation of such condition is a prerequisite for the application of chronicity and continuity of symptomatology, service connection on the theory of chronicity and continuity of symptomatology does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, the evidence of record does not support a finding of continuity of symptomatology for arthritis. It appears instead that the Veteran first complained and was treated for degenerative disc disease in 2010, several decades after his service separation, and he reported that his back was fine prior to that. Accordingly, as there is no evidence of arthritis present within the year immediately after service, nor any competent and credible showing of continuity of symptomatology, service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is unwarranted. The Board finds the preponderance of the evidence is against finding that the Veteran's current back disability is related to his active service. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. Therefore, the Veteran's claim for service connection for a back disability must be denied. Right knee osteoarthritis The Veteran contends that service connection is warranted for right knee osteoarthritis. Specifically, the Veteran states that he first developed right knee problems from the rigors of basic training and that in-service, he was given 800 mg of Motrin for his knee pain complaints. See November 2015 hearing transcript. On his September 1965 entrance examination, the Veteran denied having a "trick" or locked knee, arthritis, or swollen or painful joints, but did mark that he had a bone, joint, or other deformity. The Veteran noted that he had broken a finger on his right hand. Upon objective examination, the examiner found that the Veteran did not have a bone, joint, or other deformity and that the Veteran's lower extremities were normal. On his August 1967 separation examination, the Veteran denied having a "trick" or locked knee, arthritis, swollen or painful joints, or a bone, joint, or other deformity. Upon objective examination, the examiner found his lower extremities normal. The Veteran's service treatment records are otherwise silent with regards to complaints of or treatment for knee pain. The Veteran states that he did not seek treatment for his right knee immediately after service because the knee pain was only on and off. See November 2015 hearing transcript. The Veteran's post-service treatment records are silent with regards to knee complaints until May 2008, when the Veteran reported with complaints of bilateral knee pain lasting for several weeks. See May 2008 VA treatment records. The Veteran was diagnosed with degenerative joint disease and continued to experience knee pain. He underwent bilateral arthroscopies in 2010, followed by left knee and right knee arthroplasties in November 2011 and July 2012, respectively. The Veteran was afforded a VA examination in April 2016. The examiner noted that the Veteran reported onset of right knee pain around 1965 but was unable to attribute onset to a specific injury or event. The examiner noted that the Veteran reported playing baseball and basketball prior to service. The examiner found that the Veteran's entrance and separation examinations were subjectively and objectively normal with regards to the Veteran's knees and that the Veteran's service treatment records were silent for knee complaints or treatment. The examiner also noted that the Veteran's post-service treatment records were silent for knee complaints or treatment until decades after service. The examiner noted that the Veteran was diagnosed with osteoarthritis, which according to medical literature, includes risk factors such as age, sex, obesity, occupation, sports activities, previous injury, muscle weakness, genetic element, calcium crystal deposits, lack of osteoporosis, proprioceptive deficits, and acromegaly. After reviewing the evidence, and noting that there is an enhanced risk of osteoarthritis of the knee among older adults with the combination of obesity and heavy physical activity, the examiner opined that the Veteran's right knee osteoarthritis was less likely as not due to or a result of active service, but rather it was more likely due to the natural aging process as well as genetic predisposition and work history. The Board finds the April 2016 VA examiner's opinion persuasive, as the opinion is informed by a thorough review and analysis of the Veteran's service treatment records, post-service treatment records, and medical literature. The examiner's opinion reflects clear and unequivocal conclusions regarding the relationship between the Veteran's service treatment records, his post-service treatment records, and his current right knee disability. The reasoning adequately shows that the examiner's conclusions are supported by the relevant and material information. The opinion is factually accurate, fully articulated, and based on sound reasoning. Thus, the opinion carries significant probative weight. The Board acknowledges that a claimant is generally competent to introduce lay testimony of observable symptoms of disability and continuity of such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, as a lay person, the Veteran is not competent to provide a medical diagnosis or nexus regarding his current right knee osteoarthritis and his active service; such a matter requires medical expertise and laboratory testing. See id. at 1377 (noting general competence to testify as to symptoms but not to provide medical diagnosis). As such, the Board finds the Veteran's representations in this regard to be of extremely limited probative value and significantly outweighed by the opinions expressed concerning the relationship between the Veteran's current right knee osteoarthritis and his active service in the above compensation examination medical opinions. Regarding the recent diagnosis of osteoarthritis, service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. There is no medical evidence of arthritis until years after the Veteran's separation from service. The Board acknowledges that, because arthritis is considered a "chronic" disability, the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claim of service connection for right knee osteoarthritis. As arthritis was not noted in service, and as a notation of such condition is a prerequisite for the application of chronicity and continuity of symptomatology, service connection on the theory of chronicity and continuity of symptomatology does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, the evidence of record does not support a finding of continuity of symptomatology for arthritis. It appears instead that the Veteran first complained and was treated for right knee osteoarthritis in 2008, several decades after his service separation. Accordingly, as there is no evidence of arthritis present within the year immediately after service, nor any competent and credible showing of continuity of symptomatology, service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is unwarranted. The Board finds the preponderance of the evidence is against finding that the Veteran's current right knee osteoarthritis is related to his active service. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. Therefore, the Veteran's claim for service connection for right knee osteoarthritis must be denied. Pes planus The Veteran contends that service connection is warranted for his pes planus. Specifically, he states that he developed foot problems while in service and reported to sick call with complaints of foot pain. He states that he received shots and pills for treatment, but no special footwear was given. He states when he first left service, the VA diagnosed him with flat feet. See November 2015 hearing transcript. On his September 1965 entrance examination, the Veteran marked that he had foot trouble. It was noted by the examiner that the Veteran did not have a foot disorder but upon objective examination, the Veteran was found to have pes planus. On his August 1967 separation examination, the Veteran denied having foot trouble. Upon objective examination, his feet were marked normal. The Veteran's service treatment records are otherwise silent with regards to complaints of or treatment for pes planus or foot pain. The Veteran's post-service treatment records are silent with regards to complaint of or treatment for foot pain until 2000, when the Veteran was referred for a podiatry consult. See March 2010 VA treatment records. A January 2010 imaging study revealed moderate degenerative joint disease at the first metatarsal phalangeal joint bilaterally, cystic degenerative changes at the head of the first metatarsals bilaterally, and mild bilateral hallux valgus deformities and the Veteran was prescribed inserts for his shoes. See January and February 2010 VA treatment records. A November 2010 VA examination report reflects that the Veteran reported progressively worsening pain in bottom of his feet since service, and that he treated the pain with rest, elevation, and custom-made orthotic inserts. The examiner found no skin or vascular abnormality, evidence of malunion or nonunion of the tarsal or metatarsal bones, and no midfoot or forefoot abnormalities. Noting the January 2010 imaging studies, the examiner concluded that the Veteran's pes planus was a congenital or developmental condition and opined that the pes planus was not increased by military service, but rather due to the natural progression of the disease, as there was no documentation of pes planus problems while in service. In February 2016, the Board remanded the claim for an addendum opinion to clarify whether the Veteran's pes planus was a congenital disease or defect and whether he had a superimposed injury or disease to the back in service resulting in additional injury to his foot. In April 2016, a VA examiner provided an addendum opinion. The examiner clarified that the Veteran's pes planus was a developmental defect, as the Veteran failed to develop an arch. The examiner explained that a flat foot is normal in infants and toddlers, because the arch has not yet developed. Most people will develop arches throughout childhood, but some never develop arches. The examiner stated that this is a normal variation in foot type, and people without arches may or may not have problems. The examiner further opined that the Veteran's pes planus would be categorized as a developed defect, rather than a disease, as it fits the definition of a structural or inherent abnormality rather than a deviation or interruption of the normal structure or function of the foot. As to whether the Veteran suffered a superimposed injury or disease to the back in service resulting in additional injury, the examiner stated that an opinion was not applicable. As discussed above, the examiner found that it was less likely than not that the Veteran's back disability was due to or caused by active service. In this case, the Veteran had congenital pes planus when he entered service and it is not a disease or injury to which the presumption of soundness applies. Similarly, because it is a congenital defect, it is not subject to aggravation as a defect is defined as structural or inherent abnormalities or conditions which are more or less stationary in nature. Therefore, as a congenital defect, it is not subject to service connection. On this basis, the appeal is denied. While congenital defects are not subject to service connection, the exception is if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993) (citing Hunt v. Derwinski, 1 Vet. App. 292 (1991)); VAOPGCPREC 67-90 (July 18, 1990) (published at 55 Fed. Reg. 43,253 (1990)). The Board finds that the weight of the lay and medical evidence does not demonstrate that there was superimposed disease or injury of the back in service of which would support a grant of service connection for pes planus. The Board has considered the Veteran's statements as to in-service complaints of foot pain. While he has testified that he was given "shots and pills" for his feet during service, his feet were clinically normal on service separation in 1967. Further, the evidence does not show evidence of ongoing/chronic foot impairment until 2000, years after the Veteran's separation from service. The November 2010 and April 2016 VA examination reports together show that the examiners reviewed the claims file, took a history from the Veteran and determined that there was no back injury during service. Therefore, there can be no back injury superimposed on the Veteran's pes planus which would support a grant of service connection. The Veteran is not competent to provide a medical opinion, as noted above. Therefore, the Board finds the November 2010 and April 2010 VA examination reports and opinions are probative and competent and outweigh the Veteran's contention regarding the claimed pes planus. As such, the Board finds that service connection is not warranted. The Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but finds that there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for right knee osteoarthritis is denied. Entitlement to service connection for pes planus is denied. REMAND The Veteran contends that service connection is warranted for his headaches. Specifically, he states that during service, his headaches worsened and that he experienced headaches almost every day, often reporting to sick call with headache complaints and to the dispensary for medication to treat his headaches. See November 2015 hearing transcript. The Veteran's 1965 entrance examination reflects that his head and neurologic system were within normal limits. On an associated history form, the Veteran checked that he had a history of frequent or severe headaches. An examiner commented that the Veteran did not have headaches. On a May 1967 medical record, the Veteran marked that he did not have severe or frequent headaches. The Veteran's service treatment records are otherwise silent with regards to complaints of or treatment for headaches. The Veteran's August 1967 separation examination was objectively normal with respect to the head and neurologic system. However, the Veteran again marked that he had a history of frequent or severe headaches. The Veteran's record is silent for complaints of or treatment for headaches until he filed a service connection claim in 1991. The medical record of evidence reflects that the Veteran is currently being treated for headaches. See private treatment records from Dr. K. The Veteran was afforded a VA examination in November 2010. The examiner noted that the Veteran reported having onset of migraine headaches while in service and that he had two to three headaches per week. The examiner noted that the Veteran's entrance examination reflects that he had severe headaches and that his separation examination also reflects complaints of headaches. The examiner was unable to render an opinion without resorting to mere speculation as to whether the Veteran's headaches were related to service because despite complaints of headaches on the entrance and separation examinations, there was no documentation of complaints of or treatment for headaches while on active duty. The Board finds that the current opinion is inadequate. Since the opinion was rendered, the Veteran has submitted private medical records pertaining to the treatment of his headaches, as well as given additional lay statements, which may allow the examiner to render an opinion without resorting to speculation. Furthermore, the evidence of record suggests that the Veteran experienced headaches prior to service entrance. The Board notes that although the November 2010 examiner addressed direct service connection, the examiner did not render an opinion as to whether the Veteran's headaches were aggravated by active service. Therefore, the Board finds that a remand is warranted in order to obtain a new VA opinion as to whether the Veteran's headaches were caused by, related to, or aggravated by active service. Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the November 2010 VA examiner. If the examiner is unavailable, the claims file must be provided to an examiner who is qualified to give an opinion as to the nature and etiology of the Veteran's headaches. A new examination is only required if deemed necessary by the examiner. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. If a new examination is conducted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches are caused by, related to, or aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his active service. If the examiner finds that the Veteran's headaches were aggravated by active service, then he or she should quantify the degree of aggravation, if possible. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If the examiner is unable to provide the requested opinions without resorting to speculation, the reasons for the inability to provide the necessary opinion should be provided. Any missing evidence that would enable the examiner to provide the opinion should be identified. 2. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs