Citation Nr: 18143744 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-24 546 DATE: October 23, 2018 ORDER Service connection for a back disability is denied. Service connection for bilateral flatfoot is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s back disability began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that the Veteran’s preexisting bilateral flatfoot was aggravated by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for bilateral flatfoot have not been met. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime), 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.306(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). 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) (2018). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(b) (2018). 1. Service connection for a back disability The Veteran asserts that he injured his back in service, once while moving boxes from the pier to the ship and again while carrying powder bags. Service treatment records do not show any complaints, findings, or diagnoses of a back disability. He denied having any arthritis or painful joints when reporting his medical history in March 1989, January 1988, and April 1990. He denied having recurrent back pain at his July 1990 separation examination, and evaluation of the spine was normal at that time. There are no medical records dated prior to the Veteran’s February 2014 claim for benefits. A June 2016 statement from a fellow sailor reflects that he remembers when the Veteran injured his back moving boxes from the pier to the ship in 1987 and again while moving powder bags during general quarters, and that the Veteran often complained of back pain after those injuries. A June 2016 statement from the Veteran’s wife indicates that the Veteran has been complaining of back pain since they met in 1991. At an August 2016 VA examination, the Veteran reported injuring his back in service in 1987 moving boxes from the pier to the ship, being unable to move for 30 minutes, and being taken to sick call where he was given a bottle of Tylenol. He reported reinjuring his back in 1988 moving powder bags and again being unable to move for 30 minutes. The examiner opined that the Veteran’s back disability was not incurred in or caused by active service as there are no medical records showing that he had any back pain or injury in service. Given the above, the Board finds that the preponderance of the evidence is against finding that the Veteran’s back disability began during active service. The service treatment records simply do not document any back problems. The Veteran denied having recurrent back pain at his separation examination. He also denied having similar complaints of arthritis on three reports of medical history. Post service, there is no evidence of back problems until the filing of the Veteran’s claim in February 2014. While not dispositive, the passage of many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board also finds that the Veteran’s back disability is not otherwise related to an in-service injury, event, or disease. The VA examiner opined that the Veteran’s back disability was not incurred in or caused by active service. The examiner aptly noted that there are no medical records showing that the Veteran had any back pain or injury in service. That is the only competent medical opinion of record and unfortunately it is against the claim. The Board notes that a lay person is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that a lay person is competent to address the etiology of a disability in some limited circumstances in which a nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the objective evidence of record dates the onset of back symptoms to over a decade after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his disability. Even if the Veteran did injure his back in service as asserted by the fellow sailor, the objective evidence of record indicates that any such injuries did not result in a chronic back disability. As discussed, the Veteran did not report back problems on numerous reports of medical history during service and he specifically denied back problems at his separation examination. Similarly, while his wife indicated that the Veteran has had back problems since they met in 1991, her recall of such history is not supported by the objective evidence of record. The competent medical evidence shows that his back disability is not related to active service. In conclusion, service connection for a back disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for bilateral flatfoot The Veteran asserts that his preexisting bilateral flatfoot was aggravated by service. Service treatment records show that the Veteran had mild bilateral flatfoot with hammertoes at his entrance examination. While they show complaints of athlete’s feet, they do not show any complaints regarding flatfeet during service. He denied having any arthritis or painful joints when reporting his medical history in March 1989, January 1988, and April 1990. Other than athlete’s feet, he denied having any problems with his feet at his July 1990 separation examination, and evaluation of the feet was normal at that time. There are no medical records dated prior to the Veteran’s February 2014 claim for benefits. A May 2016 statement from a private physician reflects that the Veteran should be excused from wearing boots at work as he has bilateral flatfoot and cannot tolerate wearing them. A June 2016 statement from a fellow sailor reflects that he remembers that the Veteran complained of his feet throughout service, especially after the physical fitness tests. A July 2016 statement from a private physician reflects that the Veteran’s flatfeet were aggravated by his years of service as a supply ship man with prolonged standing on hard surfaces from 1986 to 1990. At an August 2016 VA examination, the Veteran reported that he was born with flatfeet and fitted with special shoes at age 10. He reported wearing boots for 14 hours a day in service with long hours of standing. He indicated that a physician advised him against wearing boots as the boots he wore in service worsened his flatfeet. The examiner opined that the Veteran’s bilateral flatfoot was not aggravated by active service as he could wear boots and there are no medical records showing any complaints of foot pain during service. The examiner noted that while the Veteran complained of athlete’s feet in service, he did not complain of any foot pain. Given the above, the Board finds that the Veteran’s bilateral flatfoot preexisted active service as it was noted at service entrance. The Board also finds that the preponderance of the evidence is against finding that the Veteran’s preexisting bilateral flatfoot was aggravated by active service. The service treatment records do not document any foot problems related to flatfoot. The only foot problem reported by the Veteran during service and at his separation examination was athlete’s foot. He also denied having similar complaints of joint pain on three reports of medical history. Post service, there is no evidence of foot problems until the filing of the Veteran’s claim in February 2014. While not dispositive, the passage of many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson, 230 F.3d 1330. The VA examiner opined that the Veteran’s bilateral flatfoot was not aggravated by active service. The examiner noted that there are no medical records showing that the Veteran had a foot problem in service other than a fungal infection. That is the only competent medical opinion of record and unfortunately it is against the claim. The Board notes that a lay person is competent to give evidence about observable symptoms such as pain. Layno, 6 Vet. App. 465. A lay person is also competent to address the etiology of a disability in some limited circumstances in which a nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372. In this case, the objective evidence of record dates the onset of foot symptoms to over a decade after separation from active service and the question of aggravation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his disability. Even if the Veteran did complain of foot pain as asserted by the fellow sailor, the objective evidence of record indicates that any such complaints did not represent an increase in disability that required treatment or profile against wearing boots. As discussed, the Veteran did not report any foot pain on numerous reports of medical history during service and, while he reported foot trouble at his separation examination, he clarified that such trouble referred to his athlete’s feet. The Board finds the lack of complaints in this case to be of great probative value as the Veteran complained of a foot disorder in service, athlete’s feet, but not of any foot pain. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). The competent medical evidence shows that his bilateral flatfoot was not aggravated by active service. In conclusion, service connection for bilateral flatfoot is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel