Citation Nr: 18141132 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 14-29 082A DATE: October 9, 2018 ORDER Service connection for osteoarthritis, tibialis posterior tendonitis, and plantar fasciitis left foot, to include fallen arches, is denied. Service connection for osteoarthritis right foot, to include fallen arches, to include as secondary to claimed left foot disability, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s current left foot disability was incurred in or aggravated by her active service. 2. The preponderance of the evidence is against a finding that the Veteran’s current right foot disability was incurred in or aggravated by her active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for osteoarthritis, tibialis posterior tendonitis, and plantar fasciitis left foot, to include fallen arches, are not met. 38 U.S.C. § 1131, 1132, 1153, 5107; 38 C.F.R. § 3.303, 3.304, 3.306. 2. The criteria for a grant of service connection for osteoarthritis right foot, to include fallen arches, are not met. 38 U.S.C. § 1131, 1132, 5107; 38 C.F.R. § 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from November 1988 to May 1992. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 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). For purposes of establishing service connection, 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 the 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. See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). According to 38 C.F.R. § 3.304(b), the term “noted” denotes only such conditions that are recorded in examination reports. The provisions of 38 U.S.C. § 1153, and its implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a pre-existing disability has been aggravated. According to this statute and regulation, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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. In addition, the usual effects of medical and surgical treatment in service, having the effect of ameliorating conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. Mere temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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 is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran has stated that in service, she had to run, march, or hike many miles while wearing a forty-pound pack, Kevlar, and a helmet while carrying a service rifle without supportive shoes, which led to a fallen arch in her left foot and her currently diagnosed bilateral foot conditions. She also reported that bilateral bunion surgery done in service did not resolve her foot problems, but only covered them up and reduced pain. The Veteran’s service entrance examination revealed the presence of mild pes planus, asymptomatic, and mild hallux valgus, asymptomatic. Her service treatment records contain reports of foot pain, tendonitis, and bunions with bunionectomies conducted on both feet in January 1991 and March 1991. A June 2010 VA medical examination diagnosed the Veteran to have osteoarthritis in both feet; tibialis posterior tendonitis and tibialis posterior tendon dysfunction on the left; and plantar fasciitis with calcaneal spur of the left foot. A VA medical opinion obtained the following month reveals that medical literature showed a correlation between flat feet and the possibility of developing degenerative or arthritic conditions due to the abnormal biomechanical function of the foot and the increased demand on joints which were hypermobile. Literature as well as the opinion provider’s personal experience also establishes that a predisposition exists for the development of tendonitis of the foot as well as plantar fasciitis if a patient has flat feet. With respect to the bunions/hallux valgus, the opinion provider remarked that they had no effect on the current conditions as they are a separate and unrelated problem, that had been successfully treated with the in-service surgery. The Veteran’s treating VA podiatrist completed a Disability Benefits Questionnaire (DBQ) in October 2015 at which time the Veteran was found to have bilateral pes planus and plantar fasciitis. It also was noted that earlier x-rays from 2012, had revealed osteoarthritis of the 1st metatarsophalangeal joint resulting from bunions as a result of overpronation (pes planus). The Board finds that the Veteran’s current foot conditions are not related to her active service. Although her preexisting hallux valgus/bunions were surgically corrected in service, the service records do not show any foot symptoms after her recovery. When combined with the absence of any record of foot problems until many years later, it may be concluded that there was no increase in severity of the underlying condition during service to find in-service aggravation to support an award of service connection. Medical evidence of osteoarthritis, tendonitis, and plantar fasciitis more than twenty years after service does not suggest a permanent aggravation during service of her preexisting pes planus/hallux valgus. Rather, the evidence shows that the Veteran has come to experience the anticipated consequences of the life-long presence of pes planus and hallux valgus, both of which plainly existed prior to service, and neither of which are shown to have increased in severity beyond natural progression during service. The Board acknowledges the Veteran’s belief that her service duties led to her current foot diagnoses. However, she has not been shown to have the requisite medical knowledge to determine the etiology of a complex medical condition, and as such, her opinion is not medically competent evidence. To the extent the Veteran contends her right foot disability is secondary to her left foot disability, as service connection for the left foot disability is not warranted, service connection for the right foot on a secondary basis cannot be granted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel