Citation Nr: 18160769 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-14 352 DATE: December 28, 2018 ORDER Service connection for left foot pes planus with hallux valgus is denied. Service connection for right foot hallux valgus is denied. The severance of service connection for right foot pes planus was not proper. FINDINGS OF FACT 1. The Veteran’s account of his in-service event, injury or disease pertaining to his left foot pes planus with hallux valgus is not credible. 2. The Veteran’s right foot hallux valgus was not caused by service. 3. The current evidence does not establish that the grant of service connection for the Veteran’s right foot pes planus was clear and unmistakable error. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for left foot pes planus with hallux valgus have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(d) (2017). 2. The criteria to establish entitlement to service connection for right foot hallux valgus have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(d) (2017). 3. The severance of service connection for right foot pes planus was not proper. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.105(d), (i), 3.303(d) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1967 to September 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 and May 2013 rating decision of the Muskogee, Oklahoma Regional Office (RO). Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). 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) (2017). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Left foot pes planus with hallux rigidus The Veteran has asserted undergoing several in-service events pertaining to his left foot: May 2010 statement – the Veteran reported that the military boots he was issued caused left foot pain and at service separation, the service medical examiner told the Veteran that he was flat footed; January 2011 statement – the Veteran reported experiencing left foot pain and swelling due to his military-issued boots and that he did not complain because the drill sergeant didn’t want to hear his complaints; and April 2013 statement – the Veteran reported that he was a kitchen supervisor and that he stood on his feet for 10 hours per day that resulted in left foot pain. Service treatment records (STRs) are silent for complaints or contemporaneous reports pertaining to the Veteran’s left foot. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to statements of medical diagnosis and treatment, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision). In the Veteran’s June 1969 pre-separation medical examination report, no foot abnormalities were noted. In his June 1969 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had foot trouble. In a September 1969 statement, the Veteran indicated that his medical condition had not significantly changed since his pre-separation medical examination. In November 2011, the Veteran was afforded a VA examination. The Veteran reported having flat feet his entire life and that he began experiencing left foot pain after wearing his military-issued boots. He also reported attending sick call several times and was treated with pain pills. A left foot VA radiograph revealed degenerative changes and left foot hallux valgus. However, it was noted that the Veteran could not be evaluated for pes planus because the radiograph images were non-weight bearing. The VA examiner diagnosed the Veteran with left foot pes planus with an initial diagnosis date of 1967. The examiner opined that the Veteran’s left foot pes planus existed prior to service entrance and that it was aggravated beyond its natural progression by active service because the Veteran did not experience left foot pain until he began wearing his military-issued boots. In addition, the examiner explained that the STRs reports of right foot blisters, calluses and pain had aggravated the Veteran’s pre-existing left foot pes planus beyond its natural progression. The November 2011 VA examiner’s medical opinion that the Veteran’s left foot pes planus existed prior to service entrance and was aggravated beyond its natural progression by service is of low probative value. The Veteran’s left foot pes planus was not noted upon service acceptance and there were no left foot abnormalities noted in the Veteran’s September 1967 pre-entrance medical examination report. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). Therefore, the Veteran is presumed sound at service entrance as to his left foot pes planus. In addition, the Board accords no credibility to the Veteran’s report of attending sick call several times and being treated with pain pills for his left foot because STRs are silent pertaining to his left foot and the Veteran denied ever experiencing foot trouble at service separation. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (holding that the Board is charged with the duty to assess the credibility and weight given to evidence). Therefore, the VA examiner’s medical opinion was based upon an inaccurate factual basis and is of low probative value. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background). In a May 2012 VA addendum, the examiner opined that the Veteran’s left foot pes planus was caused by service because the Veteran did not experience left foot pain until active service. The examiner also opined that the Veteran’s left foot hallux valgus was caused by service because hallux valgus was not noted at service entrance and the November 2011 VA left foot radiograph revealed hallux valgus. The May 2012 VA addendum is of low probative value. As noted above, the Veteran’s report of experiencing left foot pain during service is not credible and the VA examiner’s medical opinion concerning left foot pes planus was based upon an inaccurate factual basis. In addition, the medical opinion concerning left foot hallux valgus was not based on an accurate and complete understanding of the Veteran’s medical history because the VA examiner did not discuss the absence of left foot complaints in the Veteran’s STRs and his denial in experiencing foot trouble at service separation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In a June 2012 VA addendum, the VA examiner revised the previous addendum to strike the reference to the Veteran’s left foot because there was no left foot treatment during service. In a March 2013 VA addendum, the VA examiner opined that due to the absence of an in-service injury, event or disease pertaining to the Veteran’s left foot, other factors such as obesity, diabetes and aging, had caused the Veteran’s left foot pes planus and hallux valgus. A preponderance of the evidence is against a finding that the Veteran underwent an in-service event, injury or disease concerning his left foot. The Veteran claimed to have experienced left foot pain and swelling due to his military-issued boots and working as a kitchen supervisor during service, and as a result, he went to sick call several times and was treated with pain pills. As noted above, STRs are silent for complaints or contemporaneous reports pertaining to the Veteran’s left foot. In addition, the Veteran specifically denied ever experiencing left foot trouble at service separation. Therefore, service connection is not warranted and the claim is denied. Right foot hallux valgus In the Veteran’s June 1969 pre-separation medical examination report, no foot abnormalities were noted. In his June 1969 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had foot trouble. In an August 1969 STR, the Veteran reported stepping on a piece of glass that resulted in a small laceration to his right foot hallux distal and plantar first metatarsal head. It was noted that the laceration did not require sutures. In his September 1969 statement of exemption, the Veteran indicated that his medical condition had not significantly changed since his pre-separation medical examination. In a July 2000 private treatment record, the Veteran reported experiencing right foot pain for approximately 3 months. A right foot radiograph revealed a plantar spur and no evidence of a fracture, dislocation or any other significant bone or joint pathology. The examiner did not diagnose the Veteran with hallux valgus; however, it was noted that the Veteran was obese. A September 2001 private treatment record reflects the Veteran’s diagnosis of right foot strain. In the November 2011 VA examination, the examiner did not diagnose the Veteran with right foot hallux valgus. In the May 2012 VA addendum, the examiner diagnosed the Veteran with right foot hallux valgus because a November 2011 VA right foot radiograph revealed hallux valgus. The examiner opined that the Veteran’s right foot hallux valgus was caused by service because it was not noted at service entrance. The May 2012 VA medical opinion is of low probative value because it is conclusory and does not provide the Board with sufficient analysis to consider and weigh the opinion. It does not account for the Veteran’s statements at separation and post-service history. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”). In the June 2012 VA addendum, the VA examiner opined that the Veteran’s right foot hallux valgus was caused by service because a November 2011 VA radiograph revealed evidence of right foot hallux valgus. The June 2012 VA medical opinion is of low probative value because it is conclusory and does not provide the Board with sufficient analysis to consider and weigh the opinion. Stefl, supra. In the March 2013 VA addendum, the VA examiner opined that the Veteran’s right foot hallux valgus was not caused by the in-service glass incident because the Veteran denied ever having foot trouble and no foot abnormalities were noted at service separation. In addition, the examiner indicated that the Veteran’s right foot disorder was caused by his obesity – the Veteran weighed 157 pounds at service entrance, weighed more than 300 pounds in 2001 and weighed 329 pounds in October 2011. Furthermore, the Veteran’s first documented report of right foot pain was in October 2011. A preponderance of the probative evidence is against a finding that the Veteran’s right foot hallux valgus was caused by the in-service glass incident. The Veteran denied ever having foot trouble at service separation. In addition, the March 2013 VA examiner opined that the Veteran’s right foot hallux valgus was not caused by service; rather, it was caused by his obesity. Therefore, service connection is not warranted and the claim is denied. Severance of Service Connection Certain additional procedural requirements apply where service connection is to be severed, and if they are not followed, the severance of service connection is generally void ab initio. Specifically, a rating that proposes severance must be prepared, setting forth all material facts and reasons. The Veteran must be notified at his or her latest address of record of the contemplated action and the detailed reasons, and must be given 60 days to present additional evidence to show that service connection should be maintained. 38 C.F.R. § 3.105(d) (2017). The Veteran may also request a hearing within 30 days of receiving notice. 38 C.F.R. § 3.105(i) (2017). Subject to the limitations contained in 38 C.F.R. §§ 3.114 and 3.957, service connection may be severed only where the evidence establishes that the award of service connection was clearly and unmistakably erroneous, with the burden of proof being upon the Government. A change of diagnosis “may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous.” 38 C.F.R. § 3.105(d) (2017). “Severance of service connection based on any standard less than that established by § 3.105(d) is erroneous as a matter of law.” Stallworth v. Nicholson, 20 Vet. App. 482 (2006). The United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether clear and unmistakable error (CUE) is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). The Court has further stated that CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Court has held that the same CUE standard that applies to an appellant’s CUE challenge to a prior adverse determination under Section 3.105(a) is also applicable in the Government’s severance determination under Section 3.105(d). Once service connection has been granted, 38 C.F.R. § 3.105(d) provides that it may be withdrawn only after VA has complied with specific procedures and the Secretary meets a high burden of proof. See Wilson v. West, 11 Vet. App 383 (1998); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (holding that section 3.105(d) places at least as high a burden of proof on VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking an unfavorable previous determination overturned); Graves v. Brown, 6 Vet. App. 166, 170 (1994) (holding that CUE is defined the same under 38 C.F.R. § 3.105(d) as it is under 38 C.F.R. § 3.105(a)). However, in determining whether service connection will be severed, VA may – and, in fact, must – consider evidence that was generated after the original decision was made. Stallworth, 20 Vet. App. 482 (holding that a “severance decision focuses not on whether the original decision was clearly erroneous, but on whether the current evidence establishes that [service connection] is clearly erroneous.” (quoting 38 C.F.R. § 3.105 (d)); see Daniels v. Gober, 10 Vet. App. 474, 480 (1997) (holding that 38 C.F.R. § 3.105(d) “clearly contemplat[es] the consideration of evidence acquired after the original granting of service connection.”) In the June 2012 rating decision, the RO granted service connection for right foot pes planus. In the March 2013 rating decision, the RO proposed to sever the grant of service connection for right foot pes planus based on the November 2011 VA examination. The VA examiner opined that the Veteran’s right foot pes planus existed prior to service entrance and that it was aggravated beyond its natural progression by service. In a May 2013 rating decision, the RO severed service connection for right foot pes planus, effective August 1, 2013. In the November 2011 VA examination, the examiner diagnosed the Veteran with right foot pes planus with an initial diagnosis date of 1967 due to the Veteran’s report of experiencing flat feet his entire life and that he began experiencing right foot pain after wearing his military-issued boots. The examiner opined that the Veteran’s right foot pes planus existed prior to service entrance and that it was aggravated beyond its natural progression by active service because the Veteran did not experience right foot pain until he began wearing his military-issued boots. The November 2011 VA examiner indicated that the Veteran’s right foot pes planus existed prior to service entrance and that it was aggravated beyond its natural progression by service. However, indicating that the Veteran’s right foot pes planus existed prior to service entrance, the VA examiner presupposed that it was noted at service entrance, when in fact, no right foot abnormalities were then noted. The error is undebatable because it was legally incorrect to indicate that the Veteran’s right foot pes planus existed prior to service entrance when it was not noted at service entrance. Moreover, there is no evidence to suggest that the CUE was not based on the record and law at the time of the June 2012 rating decision. However, the Board must also consider whether the current evidence established that the grant of service connection for right foot pes planus was clearly erroneous. In the May 2012 VA addendum to the November 2011 VA examination, the VA examiner opined that the Veteran’s right foot pes planus was caused by service because the Veteran had no right foot pain until service and the Veteran’s right foot pain developed spurs and other degenerative changes that continued post-service. (Continued on the next page)   The Board finds that June 2012 rating decision was not CUE because the May 2012 VA examiner provided a positive medical opinion on direct service connection, which presumes that the Veteran did not have right foot pes planus at service entrance. Further analysis of the May 2012 VA addendum would indicate disagreement as to how the facts were weighed or evaluated and is not the basis for CUE. Therefore, severance of service connection for right foot pes planus was not proper and the claim to restore service connection is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel