Citation Nr: 18156861 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 13-28 221 DATE: December 11, 2018 ORDER Service connection for bilateral pes planus is denied. FINDING OF FACT Bilateral pes planus was noted upon entry and was not worsened during or as a result of service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus are not met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to August 1968. The Board denied the claim for service connection for pes planus in a September 2017 decision. The Veteran then filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the Veteran's representative and VA General Counsel filed a joint motion for partial remand (joint motion), addressing only the portion of the Board’s decision involving pes planus. The Court granted the joint motion later that month and the claim is now before the Board for further consideration. The Board acknowledges that the Veteran submitted a September 2018 statement and bilateral ankle and foot X-ray and requested that the claim be remanded for consideration of this evidence in the first instance. However, the information contained in the Veteran’s statement regarding how long and hard he worked during military service is redundant of the Veteran’s Board hearing testimony that was already considered in the 2017 Board decision. Furthermore, the fact that the Veteran has a current bilateral ankle or foot disability is not only redundant of the evidence already considered by the Board in 2017 but is not at issue in this case. As this evidence is redundant and/or not directly pertinent to the issue now on appeal, consideration in the first instance by the agency of original jurisdiction (AOJ) or a waiver of AOJ jurisdiction is not needed. See 38 C.F.R. §§ 19.37, 20.1304(c). 1. Entitlement to service connection for bilateral pes planus The Veteran is claiming entitlement to service connection for pes planus, which he asserts worsened during his active duty service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A veteran is presumed to be in sound condition when examined and accepted into service except for defects or disorders noted at that time. 38 U.S.C. § 1111. In this case, however, the Veteran acknowledges that he had bilateral pes planus prior to military service and moderate bilateral pes planus was noted upon pre-induction examination in August 1966. Therefore, the presumption of soundness does not apply. A pre-existing injury or disease is considered to have been aggravated by active service if there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). VA bears the burden to rebut the presumption of aggravation in service. Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). However, aggravation is not conceded where the disability underwent no increase in severity during service based on 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). Importantly, temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted with symptoms, has worsened. See Davis v. Principi, 276 F.3d. 1341, 1346-46 (Fed. Cir. 2002); Maxson v. West, 12 Vet. App. 453, 458 (1999). To that end, the Board finds that the evidence does not demonstrate that the Veteran’s bilateral pes planus was aggravated during service beyond the natural progression of the disability. The Veteran’s service treatment records are negative for any treatment of bilateral pes planus. Pes planus was noted during his discharge examination in August 1968, but there was no indication that the disability had worsened during service. The Board is cognizant of the fact that he denied any symptoms of foot trouble when he entered service, but mentioned “foot trouble” at separation. However, as was explained above, the presence of symptoms is insufficient to establish aggravation. What is required is an actual worsening of the condition. Moreover, while the Veteran reported having “trouble” with his feet during service at a November 2011 VA examination and in an August 2012 notice of disagreement, such statements are somewhat repetitive of what was observed in service. Again, having symptoms without an actual worsening is insufficient. This is particularly relevant here, as he did not report symptoms related to pes planus again until in 1971, and about three years post-discharge. During the Board hearing, the Veteran reported that his pes planus was asymptomatic upon enlistment and that he never sought treatment for his pes planus because he was raised not to whine or complain. See Board Hearing Transcript (Tr.) at 9. When asked why he thought the military made his feet worse, the examiner stated, “because of the hours we worked and the time off, we never had that much time off to relax.” He reported that he worked long hours and was always on his feet. See Board Hearing Tr. at 9-10. During the hearing, and in fact throughout the claim, the Veteran has not reported specifically in what ways his pes planus worsened beyond what was observed upon entry. To the contrary, a VA examiner in November 2011 noted that the Veteran’s pes planus was essentially clinically asymptomatic throughout service according to the service treatment records. Importantly, the examiner also stated that the current symptoms the Veteran experiences are related to arthritis of the knees, osteoarthritis of the first metatarsal phalangeal (MTP) joints bilaterally, and alcohol-related peripheral neuropathy. The examiner stated that there is no evidence of pes planus-related symptoms currently, during service, or even since service. The Board notes that the Veteran has asserted that he now has osteoarthritis as the result of aggravation of his bilateral pes planus. However, despite this assertion, he has not stated, nor does the evidence demonstrate, that he incurred arthritis in his feet or ankles during or within one year of service. The 2011 VA examiner stated that the first evidence of the severe osteoarthritis that the Veteran currently has in the first MTP joints involves X-rays performed in 2008, 40 years after service. The examiner stated that there is nothing in the service treatment records or the evidence prior to 2008 indicating or demonstrating such arthritis. Therefore, the examiner found, there is no evidence of arthritis during or within one year of service. The Board acknowledges that an August 2012 letter from the Veteran’s treating private physician, Dr. M.R., stated that the Veteran’s long-standing pes planus contributed to the osteoarthritis in his feet “better than 50 percent.” However, the statement did not indicate that osteoarthritis was incurred during or within one year of military service or that pes planus was aggravated beyond the moderate pes planus found upon enlistment and beyond the natural progression of the disability during or as a result of military service. Based on the foregoing, the Board concludes that the Veteran’s pre-existing bilateral pes planus did not worsen in severity during his active duty service. While the lay evidence demonstrates that the Veteran’s pes planus became symptomatic during service, this alone is not enough in this case, as there is insufficient evidence of an actual worsening, let alone a worsening beyond the natural progress of the disability, during service. This is further supported by the fact that the Veteran never sought treatment for the newly symptomatic disability during service or during the three years following discharge. It stands to reason that a moderate pes planus would be symptomatic during the long periods of standing and hard work that the Veteran described during the Board hearing. That does not mean automatically indicate that the Veteran’s disability had worsened. Furthermore, there is no evidence that the Veteran is competent to opine as to the clinical origin of his symptoms during service. This issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body. The Veteran has not been shown to demonstrate the kind of medical expertise that would be required to opine as to the etiology of the in-service symptoms or to say that his symptoms of pain and swelling began as a result of a worsening of his pre-existing pes planus as opposed to some other cause. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The VA examiner, on the other hand, has the requisite medical expertise and rendered an opinion based upon the evidence of record and supported by a complete rationale. For these reasons, the Board finds the VA examiner’s opinion is of more probative value than that of the Veteran. The only medical evidence of record regarding a connection between service and pre-existing bilateral pes planus is that of the 2011 VA examiner, which is against the claim. The examiner provided a thorough rationale for the opinion, which relied significantly on the evidence of record, including the lack of treatment or reported symptoms during service, and the Veteran’s own statements regarding his experiences during service. The Board concludes that the evidence of record demonstrates bilateral pes planus clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated beyond the natural progression of the disability during military service. Accordingly, the claim for service connection for pes planus is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.B., Counsel