Citation Nr: 18156635 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 15-02 889 DATE: December 10, 2018 ORDER New and material evidence having been received, the claim of service connection for bilateral flat foot is reopened. Service connection for bilateral flat foot, based on service aggravation, is granted.   FINDING OF FACT The Veteran’s bilateral pes planus that preexisted his active duty service was aggravated by such service. CONCLUSION OF LAW The criteria for establishing service connection for bilateral flat foot, based on service aggravation, have been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to November 1990. The case is on appeal from an October 2012 rating decision. In September 2018, the Veteran testified at a Board hearing, at which time the record was held open for 30 days so that the Veteran could procure and submit additional evidence in support of his claims. At the hearing the Veteran also provided a waiver of RO review, and the additional evidence received since then has been considered as part of this decision. See 38 C.F.R. § 20.1304(c). 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for bilateral flat foot. By a January 1992 rating decision, the RO denied the Veteran’s claim of service connection for a bilateral foot problem. He was notified of the decision by letter in January 1992, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in January 2012. No new evidence or notice of disagreement (NOD) was received by VA within one year of the issuance of the January 1992 rating decision for that claim. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since then, the Veteran has submitted September 2013, April 2015, and September 2018 opinions from podiatrists, in addition to his lay statements in support of his claim. This raises the possibility that the preexisting foot condition was aggravated by service. Thus, the Board finds that new and material evidence has been submitted and reopening of the previously denied claim is warranted. See 38 C.F.R. § 5108; 38 C.F.R. § 3.156(a). The reopened claim will further be addressed below. 2. Service connection for bilateral flat foot. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) 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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). If a preexisting disability is noted upon entry into service, service connection may still be granted based on in-service aggravation of that disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting 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. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Due regard will be given to the places, types, and circumstances of service, and combat duty and other hardships of service will be accorded particular consideration. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability. See 38 C.F.R. § 3.306(b)(2). Analysis The Veteran contends that either a new injury occurred, or that any preexisting foot condition worsened, during his active service as an infantryman in Operation Just Cause in Panama. The Veteran asserts that he did not experience pain or other symptoms from a flat foot condition prior to entering service, even with being physically active and playing high school football. He contends that he did not begin having physical problems until engaged in helicopter jumps and 25-mile road marches with heavy equipment while in Panama. The Veteran is competent to identify his flat foot disorder to the extent it is observable, and to recognize increases in pain and symptoms. See 38 C.F.R. § 3.159(a)(2); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Additionally, in September 2018, the Veteran submitted an opinion of a private podiatrist that provided a positive nexus opinion, stating that his foot condition was more likely than not aggravated by military service. The Veteran’s service treatment records (STRs) include the Veteran’s November 1988 entrance examination, wherein the examiner noted that he had moderate pes planus (flat foot). Additionally, a February 1989 STR shows that the Veteran sought treatment for tenderness due to a bunion on the big toe of the right foot, and in April 1990 he was recommended to consult with a podiatrist after complaining of his feet hurting when walking, with accompanied pain radiating up into his shins. In September 1990, the Veteran went before a Physical Evaluation Board (PEB) to determine whether his foot condition required discharge from service. The examination conducted for that proceeding reflected that the Veteran was diagnosed with flat feet, however the severity was not listed. Evidence provided to the PEB also included lay statements from the Veteran’s superiors and fellow soldiers reporting that he “was a good soldier before the injury” and a “productive solder,” but that they “noticed the difference in performance since his feet have started bothering him” and “it was obvious after he came back from Panama that [he] couldn’t perform his MOS.” It was also stated that “the injury was due to the fact that the training of an infantry soldier does . . . road march[es], and P.T. runs,” and it was recommended that the Veteran “be released . . . under medical circumstances that are of no fault of his own.” The PEB found the Veteran unfit to perform his duties as a result of his physical disability (pes planus), and recommended that he be separated from military service but without entitlement to disability benefits. The Board notes that the Veteran’s Certificate of Release or Discharge (DD214) states that the Veteran’s military occupational specialty (MOS) was infantryman. The DD214 also states that the Veteran served in Operation Just Cause in Panama and that he received the Combat Infantryman Badge. If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay or other evidence, and due regard will be given the places, types, and circumstances of service. 38 U.S.C. § 1154(b); 38 C.F.R. §§ 3.304(d), 3.306(b)(2). Accordingly, a rebuttable presumption of aggravation of preexisting flat feet has been established here. VA has the burden to rebut this presumption of aggravation by clear and unmistakable evidence showing there was no increase in the severity of the preexisting condition, or that any increase was the result of natural progression. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). In this case, the presumption of aggravation has not been rebutted with clear and unmistakable proof. There is not sufficient evidence that the symptomatic manifestations during the Veteran’s combat service were due to the natural progress of his flat foot condition. Therefore, after resolving all reasonable doubt in the Veteran’s favor, the Board fins that the Veteran’s bilateral pes planus that preexisted his active duty service was aggravated by such service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. His current claimed condition is the same disease process. Accordingly, service connection for bilateral flat foot, based on service aggravation, is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morford, Associate Counsel