Citation Nr: 1804508 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-16 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bilateral pes planus (previously claimed as bilateral arches falling (flat-footed)), to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1982 to March 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In an April 2014 statement, the Veteran requested a Travel Board hearing at the local RO. In an August 2014 statement, the Veteran requested a hearing before a Decision Review Officer (DRO) as her first choice and a video conference hearing before the Board as her second choice. The Veteran's request to withdraw her Board hearing request was received in February 2015, and her request to withdraw her DRO hearing request was received in August 2015. Since the case was certified to the Board in September 2015, additional evidence not relevant to the issue on appeal has been obtained and associated with the record. As a result, a waiver of initial Agency of Original Jurisdiction review is not needed and the Board may proceed with the claim. FINDING OF FACT The Veteran has not been shown to have bilateral pes planus attributable to painful arches or associated with a service-connected disability at any time since separation from active service in March 1983. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral pes planus, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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 a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In a January 2012 VA Form 21-526 (Application for Compensation or Pension), the Veteran requested service connection for bilateral arches falling (flat-footed). In the April 2014 VA Form 9, the Veteran raised a secondary theory of causation due to or aggravated by her service-connected chronic stress reaction of the right ankle. She further reported that her painful arches began during basic training, as noted in the April 2014 VA Form 9 and statements dated June 2012 and September 2014. Review of VA treatment records are silent for any indication the Veteran has had a diagnosis of bilateral pes planus at any time since separation from active service in March 1983. At a March 2012 VA Disability Benefits Questionnaire (DBQ) examination for flatfoot, the Veteran reported her arches fell while in active service, her right foot hurts in the arch, and her left foot hurts very little. The examiner also noted the Veteran's report of pain on use of both feet, swelling of both feet, and symptoms relieved by arch supports. Upon clinical evaluation, the Veteran demonstrated tenderness to palpation along the plantar fascia. Diagnostic testing of both feet revealed "plantar calcaneal spurs and distal enthesophyte changes bilaterally, large right-sided talar beak, no pes planus or cavus deformity bilaterally, and very mild forefoot degenerative changes bilaterally." The VA examiner concluded the Veteran does not have evidence of pes planus on physical examination or radiographic examination. Review of the evidentiary record shows there is no competent or probative evidence showing that the Veteran has had bilateral pes planus during the appeal period. As there is no current disability during the appeal period, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); see Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (symptoms alone, without a finding of an underlying disorder, cannot be service connected). The Board has considered the Veteran's reported history of symptomatology related to her claimed disorder throughout the appeal period. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, her statements do not rise to a level of competency to offer an opinion as to the existence of bilateral pes planus. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran asserted that she experiences painful arches, a medical professional considered all of the evidence and found that the Veteran does not have or has ever had a diagnosis of bilateral pes planus. As a result, the probative value of her lay assertions is low and are outweighed by the findings of the VA examiner. In sum, the Board finds that the evidentiary record does not contain positive probative evidence to establish that the first criterion to establish service connection on a direct or secondary basis has been met. See 38 C.F.R. §§ 3.303, 3.310. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral pes planus, to include as secondary to a service-connected disability, is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs