Citation Nr: 18141035 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 07-15 561 DATE: October 9, 2018 ORDER Entitlement to service connection for a right foot disability to include the right ankle is denied. FINDINGS OF FACT 1. The Veteran has no current disability as it relates to his right ankle. 2. The Veteran’s right foot disability is a pre-existing disability that was noted upon the Veteran’s entry into active duty military service and was not aggravated in-service. CONCLUSION OF LAW The criteria for service connection for right foot disability to include the right ankle are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty for training from March 1986 to July 1986. Subsequently, the Veteran served on active duty from April 1989 to April 1993, and from May 1993 to September 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2010, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A copy of the transcript is associated with the evidentiary record. The VLJ that conducted that hearing is no longer employed at the Board. In July 2017, the Veteran provided a written statement indicating that he did not wish to have a hearing before another VLJ. See July 2017 Hearing Related. This case was remanded in October 2010, September 2014, March 2016 and August 2017 for further development. I. Legal Standards A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110, 1131. Generally, to establish a right to compensation based on service connection, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a condition is noted on an entrance examination report, the presumption of soundness never attaches. The only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. The burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden 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.” 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in underlying disability during service. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Where the evidence shows that there was an increase in disability during service, there is a presumption that the disability was aggravated by service. To rebut the presumption of aggravation, there must be clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a) and (b). 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. § 3.306(b). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition as contrasted to symptoms is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In a recent case, the Court of Appeals for Veterans Claims (CAVC) held that pain without an identified underlying diagnosis can constitute a disability if the pain results in functional impairment. To establish a disability based on pain, the Veteran must show that their pain reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F. 3d 1356 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). I. Facts and Analysis The Veteran contends that he is entitled to service connection for a right foot disability to include the right ankle. The Veteran reports an onset of joint pain and right foot pain during his 1993 service in Korea. Post service, he reports ongoing right foot pain extending to his right ankle, the bottom of his feet and his knees, with pain exacerbated by walking. See June 2010 Hearing Testimony. Right ankle Despite the Veteran’s contentions, the evidence does not establish a current right ankle disability. Service treatment records note right ankle sprains in 1986, 1995 and 1996. See January 2006 Service Treatment Records at 6-8, 10. See also November 2016 Service Treatment Records at 26. However, there is no evidence of an ongoing ankle disability at the time of, shortly before or anytime during the pendency of his claim for benefits. Specifically, in a December 1997 exam, the Veteran described his health as good and denied having any conditions that would limit his ability to perform his primary military job. See June 2010 Service Treatment Records- Medical at 69. Moreover, despite his history of ankle sprains, the Veteran continued his active duty service as an infantryman until September 2000 when he was honorably discharged. See October 2014 Certificate of Release or Discharge. Post active duty service, there is no diagnosis of a right ankle disability. In June 2006, the Veteran underwent a VA examination of the right ankle. The examination showed no ankle stiffness or weakness. Further, the Veteran used no assistive devices. The Veteran reported being unable to stand or walk for more than one hour due to right ankle pain. However, the Veteran denied that his right ankle condition interfered with his full-time job as a caretaker for mentally challenged patients. The examiner opined that despite subjective complaints, the record did not support a diagnosis for the right ankle. See June 2006 VA Examination at 3, 4. A January 2012 VA examination showed normal right ankle plantar flexion, normal ankle range of motion and no objective evidence of painful motion. See March 2018 CAPRI at 214. The examiner also noted that while active duty records indicated a right ankle sprain, there was no evidence of significant ongoing problems with the right ankle since the Veteran’s discharge. See January 2012 VA Examination at 16. A November 2014 VA examination noted full ankle strength bilaterally with no ankylosis. See March 2018 CAPRI records at 223, 224. In January 2017 and August 2017, following a review of the Veteran’s records, a VA examiner opined that the Veteran’s right ankle condition was less likely than not incurred in or caused by the claimed in-service injury, based on evidence showing no indication of ongoing significant foot problems after treatment of a cold injury in service injury. See January 2017 C&P Exam, August 2017 C&P Exam. Based on the evidence, the Veteran does not have a currently diagnosed right ankle disability. As noted above, there have been no objective findings of any right ankle disability upon repeated testing during the course of this appeal. To the extent that the Veteran reports pain in his right ankle, pain without an identified underlying diagnosis can constitute a disability if the pain results in functional impairment. See Saunders v. Wilkie, 886 F. 3d 1356 (2018). To establish a disability based on pain, there must be evidence that the Veteran’s pain reaches the level of a functional impairment of earning capacity. Saunders 886 F. 3d 1356 at 1367, 1368. In assessing functional impairment, the Board must consider both lay statements and objective medical evidence. 38 C.F.R. § 3.303(a). While the Veteran asserts ankle pain exacerbated by walking, the Veteran’s January 2012 VA Examination noted no functional loss related to the Veteran’s right ankle. The examiner noted that the Veteran’s right ankle does not interfere with the Veteran’s employability. Moreover, the Veteran retained normal range of motion with no evidence of ankylosis. See March 2018 CAPRI at 214. Based on this evidence, the Board finds that the Veteran’s ankle pain does not constitute a disability. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for a right ankle disability is denied. Right foot Regarding the right foot, the Veteran has been diagnosed with pes planus. See January 2012 VA Examination at 31. During an April 1989 entrance examination, the Veteran was noted to have a foot abnormality. See Military Personnel Record at 22. Subsequently, a May 1993 enlistment examination noted asymptomatic pes planus. See Military Personnel Record at 36. Accordingly, the Board finds that the Veteran’s pes planus was noted at entry and is therefore a pre-existing condition. 38 C.F.R. § 3.306. A pre-existing disability can be service connected if the disability is aggravated in service. Here, the evidence does not establish aggravation in service. In 1996 the Veteran was treated for foot pain following a cold foot injury. While the Veteran sustained blisters, foot pain and some swelling, these symptoms were noted to be in his left foot, not his right foot. See March 1996 STR Medical at 45, 46. Service treatment records show that the Veteran reported some pain on extension and flexion of his foot in August 2000. See January 2012 STR Medical Photocopy at 2. However, the are no subsequent complaints of right foot pain or injury. Post service, the Veteran was prescribed orthotics for his pes planus in December 2003. See June 2010 STR Medical at 63. Treatment records do not show any other ongoing treatment for the Veteran’s right foot. The Veteran underwent a VA examination in January 2012. Upon examination the Veteran was noted to have mild pes planus, bilaterally. However, there was no evidence of tenderness on palpation. See January 2012 VA Examination at 31. An x-ray of the Veteran’s right foot showed no abnormality. See January 2012 VA Examination at 33. The examiner opined that the Veteran’s disability was less likely than not incurred in or caused by the claimed in-service injury event. In November 2014 the Veteran was afforded another VA Examination. See CAPRI at 213. A right foot x-ray remained normal. See CAPRI at 213; see also November 2014 Medical Treatment Record- Government Facility at 1. Similarly, measurements of the Veteran’s right foot angles were also normal. See CAPRI at 213-216. Pursuant to the imaging of the Veteran’s right foot, examination results and a review of the evidence of record, the examiner opined that the Veteran’s right foot pes planus pre-existed the Veteran’s military service. The examiner noted rigidity of the deformity with negative Hubsher movement. The examiner opined that the Veteran’s pes planus had not progressed much. This opinion was based on evidence that the flat foot angles were relatively normal except for the Veteran’s lower than normal calcaneal inclination angle, which the examiner noted is common in flatfoot types. He also opined that there was no evidence of aggravation of the Veteran’s pes planus in service; the change in the Veteran’s pes planus from flexible to rigid was a natural progression of pes planus; and the progression of the Veteran’s pes planus occurred after the Veteran left the military. See November 2014 VA Examination. The Board affords probative weight to these opinions. The examiners’ opinions are well supported by rationale, and are consistent with the evidence of record showing pes planus noted during the Veteran’s 1993 entrance exam and no objective evidence of aggravation during service. Overall, the record shows one complaint of right foot pain in service and prescription for orthotics post 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. § 3.306(b). Further, the November 2014 VA examiner opined that the Veteran’s pes planus was aggravated after his military service and only mildly. Finally, the Board acknowledges that, with respect to the right foot, the record contains some evidence regarding hallux valgus. Upon reviewing the evidence, the Board finds that the preponderance of the evidence establishes that the Veteran does not have hallux valgus. While a VA examiner opined in January 2012 that the Veteran has mild hallux valgus, this is inconsistent with the examiners notations on the disability benefits questionnaire, where he indicates that the Veteran has never had hallux valgus. See March 2018 CAPRI records at 239, see also January 2012 VA Examination at 24. Later, during the November 2014 VA examination, a VA examiner opined that based on evidence showing no clinical or radiographical deformity, the Veteran did not have hallux valgus. This examiner’s opinion was based on the evidence of record, including measurements of the Veteran’s hallux abductovalgus (HAV) during the examination. The probative value of the November 2014 examination outweighs that of the January 2012 examination because the November 2014 VA examination is internally consistent and supported by the objective testing designed to determine the presence of hallux valgus. Accordingly, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran has hallux valgus. With respect to the Veteran’s lay testimony of foot and ankle pain related to a disability incurred in or aggravated by military service, the Board finds that the probative value of the Veteran’s statements is outweighed by the other opinions and objective medical evidence of record. The Veteran is not competent to diagnosis a current right ankle disability, and he is not competent to opine as to whether the pre-existing pes planus was aggravated during military service. Considering the evidence of record, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a right ankle and foot disability is denied. 38 U.S.C. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Wimbish, Associate Counsel