Citation Nr: 1807687 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 12-08 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral foot disability, to include pes planus and pes cavus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from June 2001 to June 2006. For his meritorious service, the Veteran was awarded (among many other decorations) the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In December 2013, the Board remanded this claim for additional development, to include a VA examination. The record reflects that the Veteran was scheduled for a VA examination; however, he failed to report for the examination. The Veteran had relocated to Germany without providing the VA with his new address. In August 2015, the Veteran submitted a Declaration of Status Dependents with his new foreign address. Due to the Veteran's self-reported foreign address, in September 2015, the Board determined that the Veteran should be afforded an additional opportunity to have a VA examination in connection with this appeal. That examination has been accomplished. The issue is now before the Board for adjudication. FINDING OF FACT The more probative evidence indicates that the Veteran's bilateral foot disability, to include pes planus and pes cavus is not related to active duty service. CONCLUSION OF LAW The criteria for the establishment of service connection for bilateral foot disorder, to include pes planus and pes cavus, have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Merits of the Claim The Veteran seeks service connection for bilateral foot disorder. The more probative evidence demonstrates the Veteran had a foot disorder upon entry to service and that condition was not aggravated beyond a natural progression and therefore the claim will be denied. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit held that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). See also 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). Further, a veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment 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.A. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Where a disorder is noted on service entrance or a veteran is otherwise not presumed sound on entrance, 38 U.S.C.A. § 1153 applies. 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 (presumption of aggravation), unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. In such claims, a veteran (the evidence of record) must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). " If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease.'" Wagner, 370 F.3d at 1096 (citing 38 U.S.C.A. § 1153). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306 (b) (2017). There is no aggravation of a preexisting disease or injury if the disorder underwent no increase in severity during service on the basis of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). Intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition" that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In addition, as noted above, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In addition, the U.S. Court of Appeals for Veterans Claims (Court) held that the credibility of lay evidence can be affected and even impeached by factors such as inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record. See Macarubbo v. Gober, 10 Vet. App. 388 (1997). Bilateral Foot Disability The Veteran contends that his bilateral foot disability is the result of his active duty service. However, the Board notes that the Veteran's March 2001 enlistment examiner noted an abnormal foot evaluation, diagnosed as moderate asymptomatic pes cavus. As such, the Board finds that the Veteran's pes cavus was noted at entrance into service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.304 (b). Hence, the Veteran's feet were not in sound condition at the time of his entry into active service, and he bears the evidentiary burden to show an increase in severity during his service. Wagner, 370 F.3d at 1096. Service connection may be awarded for a preexisting disability that was aggravated in service. A preexisting injury or disease will be considered to have been aggravated by active service where 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.A. § 1153; § 3.306. In his various statements, the Veteran asserts that he had problems with his feet prior to his deployment in 2005 and the pain and swelling continued after getting back from deployment. In January 2017, the Veteran was provided a VA examination. In regards to the pes cavus, the examiner opined that the condition is a congenital abnormality of the feet for this Veteran and is found in approximately 8-15% of the population. The examiner further opined that medical research and the available medical notes available to him, indicate that adults who participate in activities such as sports or military service will commonly experience pain. He noted, that there are no medical records from the Veteran's active duty service or post military service that show any chronic aggravation of the pes cavus conditions. The examiner considered lay buddy statements noting complaints from the Veteran related to his bilateral foot pain, especially after a long day and activities and they also recall him getting insole care packages. The examiner noted VAMC post service notes that showed "off and on" bilateral foot pain. However, the examiner determined, that based on a review of the information available, the Veteran showed an increase in foot pain during military service, without any development of additional foot conditions that would show a chronic aggravation of his bilateral foot condition; but instead, it is consistent with a natural progression, due to military service activities and training requirements. Regarding a foot disorder other than pes cavus, the January 2017 VA examiner addressed the March 2012 podiatrist note that diagnosed the Veteran with plantar fasciitis. The examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The January 2017 VA examiner opined, that the Veteran's STRs are silent for any foot concerns, and while buddy statements report foot pain and that the Veteran obtained insoles in care packages, the description of pain is generalized and not really ideal for identifying where the pain was located. Additionally the examiner reported, that the first notes related to foot pain were from February 2012; however, those notes did not identify where the pain was located. In providing her rationale, the examiner noted, that no medical evidence of plantar fasciitis was recorded until March 2012, 6 years after military service. Further, the March 2012 podiatry note, also indicated that this was a problem, as per the Veteran's statement, that occurred over a period of months, not years. The examiner pointed out that per her medical research, plantar fasciitis is a very common condition that causes foot pain in adults and that risk factors include: excessive training, faulty shoes, running on unyielding surfaces, pes planus , limited dorsiflexion of ankles, pes cavus or prolonged walking or standing on hard surfaces. The examiner concluded that there is a lack of lay evidence in the lay statements and STRs that show the Veteran had plantar fasciitis while on active duty, or exactly what could have been causing the foot pain during military service and that plantar fasciitis was not found until 6 years after discharge from military service. Regarding arthritis of the foot, the examiner noted that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner opined that no diagnosis of foot arthritis was found in the Veteran's STRs, VAMC, documentation or on radiological review. The January 2017 VA examiner also addressed whether any foot disorder, other than pes cavus is found to be present and related to the Veteran's active duty military service. The examiner determined that the claimed foot condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In providing a rationale for her opinion, the January 2017 VA examiner notes that VAMC post military notes show "bilateral foot pain off and on". X-rays from February 2012 noted probable accessory ossicle versus developmental variant along the medical aspect of the base of the right first toes distal digit, no acute osseous abnormality was noted. It was noted that was not likely the source of any pain. The examiner opined that accessory ossicles are well defined bones in an otherwise normally developed foot and are a normal variant, developed during bone development. The examiner concluded that the accessory ossicle is less likely related to the Veteran's military service and was most likely developed during development. The Board finds that the preponderance of the evidence is against the claim for service connection for bilateral foot disability, to include pes planus and pes cavus. In reaching that determination, the Board finds that the January 2017 VA examination report to be significant, and the highest probative value. The examiner's opinion was based upon a review of the medical evidence of record, the Veteran's lay statements, lay buddy statements, and a physical examination of the Veteran. The examiner addressed all of the Veteran's assertions regarding entitlement to service connection based on a bilateral foot condition. Additionally, the examiner's opinion discussed that the Veteran's pes cavus was not aggravated beyond the natural progression by active service and that the post service medical evidence did not show an increase in the disability. While the Veteran was treated post service for his pes cavus, the VA examiner's opinion that the condition was not aggravated beyond its normal progression by service is most probative and weighs against the claim The Board has considered the reports from the Veteran that his current foot condition was aggravated by active duty service and buddy statements from the Veteran's fellow servicemen that the Veteran did not complain about his feet during the early stages of enlistment. In that regard, the Veteran and others can attest to factual matters of which they has first-hand knowledge, such as foot pain, and can even be used to substantiate his foot condition, therefore, the Veteran's assertions are entitled to some probative weight. However, although lay persons are competent to provide opinions on some medical issues, and can even be used to substantiate a foot condition, to include pes planus or pes cavus, the extent to which the condition may have been aggravated during service beyond the normal progression of the disorder falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran's lay evidence does not constitute competent medical evidence that is equivalent or greater in weight when compared to the January 2017 VA examiner's opinion. There is no competent and credible medical opinion evidence supporting the Veteran's claims regarding entitlement to service connection for a foot condition, to include pes planus or to show that the preexisting pes cavus condition was aggravated beyond its natural progression during service. After review of all of the evidence of record, lay, and medical, the Board finds that the preponderance of the evidence is against the Veteran's claim, and it is denied. 38 C.F.R. § 3.303. Although the Board is sympathetic to the Veteran's claim and appreciative of the Veteran's honorable service to our country, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral foot disability is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs