Citation Nr: 18145322 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-58 363A DATE: October 26, 2018 ORDER Service connection for left shoulder disability is denied. Service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. Left shoulder disability is not shown during the appeal. 2. Pes planus was noted on service entry; pes planus was not worsened beyond its natural progression as an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral pes planus are not met. 38 U.S.C. §§ 1110, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 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. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). 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 disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). However, aggravation may not be conceded where the disability underwent no increase in seventy 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 U.S.C. § 1153; 38 C F R § 3 306(b), Falzone v Brown, 8 Vet. App. 398, 402 (1995). 1. Entitlement to service connection for left shoulder disability. The Veteran contends that he has left shoulder disability that are related to in-service injury. The Board concludes that the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current left shoulder disability. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Although the Veteran had left shoulder impingement/strain in service, the more probative evidence shows that there is no functional impairment or loss related to the left shoulder. Service treatment records (STRs) show complaints of left shoulder pain in September 2014. Diagnostic imaging showed normal bone mineralization, humeral head normally located, acromioclavicular joint is maintained, soft tissues normal, and no acute fracture or osseous lesion. The physician noted a normal left shoulder. A September 2014 STRs reflects an assessment for left shoulder impingement. A February 2015 STR reflects shoulder strain. Although the Veteran reported a history of shoulder injury in July 2014 and that he still has pain during his July 2015 service separation examination, clinical evaluation of the upper extremities was normal. The physician noted the Veteran completed four weeks of physical therapy following an injury, but the shoulder was not fully healed before departure on deployment. The physician noted that the Veteran had no conditions which prevent duty or separation. Following service, a September 2015 VA examination reflects no abnormal pathology of the left shoulder. In this regard, although the Veteran reported that pain flares during certain movements, the examiner found no pain during movement and full range of left shoulder motion and neither muscle atrophy nor joint instability. The examiner found that pain, even during flare ups, did not appear to significantly limit functional ability. The examiner reported that there is no abnormal pathology to render a diagnosis for left shoulder disability. The Board accept that the Veteran had a left shoulder injury during active service and his report of pain flares during certain movements is both competent and credible. However, as discussed above, neither the lay nor the medical evidence demonstrates the presence of “disability.” In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See McClain v. Nicholson, 21 Vet. App. 318, 321 (2007) (The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). The Board has considered whether the Veteran’s report of pain constitutes a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (pain alone can constitute a “disability” under 38 U.S.C. § 1110 because pain can cause functional impairment). However, the Board concludes that the Veteran does not have a present disability of the left shoulder as he has not presented evidence of any functional loss or impairment due to left shoulder symptoms including pain. The medical evidence shows that there is no functional impairment and the Veteran has not described any specific functional loss or impairment due to left shoulder pain, which he reports occurs with certain movements. The weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for bilateral pes planus. The Veteran served on active duty from September 2011 to September 2015. The Veteran contends that preexisting pes planus was aggravated beyond its natural progression as a result of service. The Board concludes that the preponderance of the evidence is against the claim. Pes planus was not aggravated beyond its natural progression as a result of service. 38 U.S.C. §§ 1110, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.303, 3.306. First, the Board finds that, because pes planus is noted on the Veteran’s service entrance examination, the condition preexisted service. 38 U.S.C. § 1111. Second, the more probative evidence of record shows that the condition did not undergo an increase in disability during such service. 38 U.S.C. § 1153. In this regard, STRs dated in February 2012 indicate complaints of left foot pain when running. At this time, the Veteran reported purchasing new shoes prior to onset of symptoms. Objectively, there was pain on palpation. The assessment was callus of the superior left foot. On July 2015 service separation examination, the Veteran reported a history of feet pain when standing. However, clinical evaluation reflects that pes planus was asymptomatic. A September 2015 VA examination reflects a diagnosis of pes planus. The Veteran complained of pain on movement and with weight bearing. The examiner noted excess fatigability, disturbance of locomotion, interference with standing, lack of endurance, and pain on movement, weightbearing, and non-weightbearing. However, objectively, imaging studies were negative for arthritis, fractures, or other significant bone, joint, or soft tissue abnormality. A January 2016 VA medical opinion reflect that pes planus was not aggravated beyond what is naturally expected. The physician reasoned that a specific incident which resulted in foot problems and persisted for at least six months was necessary in order for aggravation beyond natural progression to have occurred. The physician indicated that the opinion was predicated on a review the record, including the notation of moderate pes planus on service entry coupled with the absence of any specific treatment during active service. The Board has considered the Veteran’s statements regarding the aggravation of pes planus. While he is competent to report his symptoms, the Board finds that his report that his condition worsened beyond normal progression is not corroborated by other evidence and, thus, is less persuasive. In this regard, his report is not supported by the STRs (noting that his pes planus was asymptomatic at service separation) and he has not presented a favorable medical opinion or treatment records showing that the condition worsened. Therefore, his statements have diminished probative value. The Board assigns greater probative value to the January 2016 VA medical opinion as this was prepared by a skilled, neutral medical professional after review of the relevant records and because it includes a complete rational for the conclusion reached. On balance, the weight of the evidence is against the claim. (Continued on the next page)   Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel