Citation Nr: 1815155 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 15-40 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from February 1995 to February 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In March 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is included in the claims file. This case was previously before the Board in June 2017. At that time, the issues on appeal included a claim to reopen service connection for a left knee disability. The Board reopened and allowed the claim for service connection for a left knee disability and reopened the claim for entitlement to service connection for bilateral pes planus. The reopened claim for pes planus was then remanded for additional development. The case has now returned to the Board for further appellate action. In an August 2017 statement, the Veteran requested additional time to submit evidence from his private podiatrist if the August 2017 VA examiner issued a medical opinion against the claim. Although the August 2017 VA examiner has provided a medical opinion against the Veteran's claim for service connection, in January 2018 the Veteran requested expedited processing of his claim and asked the agency of original jurisdiction (AOJ) to immediately forward his case to the Board. Similarly, the Veteran also stated in January 2018 that he did not have any additional evidence to submit and again requested that his case proceed to the Board as soon as possible. The Board therefore finds that the Veteran has not requested an extension of time in which to file additional evidence and will proceed with a decision in this case. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (2012). FINDING OF FACT Preexisting bilateral pes planus was noted on the Veteran's examination for entrance into service and competent evidence does not establish an increase in severity during active duty service. CONCLUSION OF LAW Bilateral pes planus was not incurred in or aggravated by service. 38 U.S.C. §§ 101, 1110, 1111, 1153 (2012); 38 C.F.R. §§ 3.303, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has certain duties to notify and assist a veteran in the substantiation of a claim. VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran's claim was filed as a fully developed claim pursuant to the Secretary's program to expedite VA claims. Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a Veteran submits all evidence relevant and pertinent to a claim other than service treatment records and treatment records from VA medical centers, which are obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the Veteran with a VA medical examination, may still be required prior to the adjudication of the claim. See VA Form 21-526EZ. The fully developed claim form includes notice to the Veteran of what evidence is required to substantiate a claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings. See id. Thus, the notice that is part of the claim form submitted by the Veteran satisfies the duty to notify. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. The Veteran was provided a VA examination and medical opinion in July 2017. In an August 2017 statement, the Veteran contends that the July 2017 VA examination is not adequate as it was not performed by a podiatrist and did not include a thorough physical examination. With respect to the Veteran's first argument, in general, a VA examiner is presumed competent and qualified to conduct examinations due to their education, training, and experience. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Veteran has not provided any specific argument or evidence concerning the professional competency of the July 2017 VA examiner; rather his argument is based on his observation that the physical evaluation was not as thorough as the one he previously received from a private podiatrist. The Board notes that the private examination (which is included in the claims file) was for the purposes of treatment, while the VA examination was to determine the nature and etiology of the claimed disability. Additionally, the July 2017 VA examination report contains all the necessary information required for this decision and is accompanied by a medical opinion report. The July 2017 medical opinion was based on a full review of the claims file, contains specific reference to the evidence in the claims file, and is accompanied by a well-explained rationale. The Board therefore finds that it the July 2017 VA examination and medical opinion are adequate and the record does not establish that a new VA examination of the Veteran's feet is necessary. For the reasons set forth above, the Board finds that VA has complied with the duties to notify and assist. Service Connection Claim The Veteran contends that service connection is warranted for bilateral pes planus as it was aggravated due to active duty service. He testified in March 2017 that he had no symptoms of flat feet prior to enlistment into military service and experienced progressive foot pain throughout active duty. In an August 2017 statement, the Veteran also described how his service duties included long periods of standing, marching, and carrying heavy equipment which increased the severity of the pain and symptoms of his flat feet. 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). To establish a right to compensation for a present disability, a Veteran must show: (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"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). The record establishes a current disability-bilateral pes planus was diagnosed upon VA examination in July 2017 and in VA and private treatment records dated throughout the claims period. The Veteran entered active duty service in February 1995. The January 1995 enlistment examination specifically noted the presence of mild pes planus of the feet. A veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C. § 1111. The January 1965 examination clearly documents the presence of pes planus and the presumption of soundness is accordingly not for application in this case. 38 U.S.C. § 1111; see VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004). The Board must now determine whether the Veteran's preexisting pes planus was aggravated in service. Generally, a preexisting injury or disease is considered aggravated by active service where there is an increase in the disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity 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; see also VAOPGCPREC 3-2003 (a preexisting injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service). The record does not establish that the Veteran's pes planus underwent an increase in severity during active duty. Service records document multiple complaints and treatment for foot pain, but the Veteran received treatment for several lower extremity conditions during service in addition to flat feet. In January 1996, one year after enlistment, the Veteran was seen for chronic foot, ankle, and knee pain. He stated that his problems began in boot camp and he was diagnosed with mild pes planus, mild hallux valgus, and left knee Iliotibial Band Syndrome (IBS). He was referred for orthotics and orthopedic and podiatry consultations. The Veteran was seen later that same day by a podiatrist who again diagnosed mild pes planus and recommended orthotics. The Veteran did not follow-up with his subsequent scheduled podiatry appointments, but mild pes planus was observed during an April 1996 left knee examination. The Veteran was seen again by a podiatrist in September 1996 and January 1997; on both occasions, the Veteran reported that he had not seen improvement in his feet with the use of inserts and stretching. There are no other complaints of pain related to the Veteran's flat feet during service, but in September 1998 he fractured his right ankle jumping off the back of a vehicle and was treated accordingly. At separation, the Veteran's feet were normal without evidence of pes planus and a right ankle abnormality was noted on the examination report. Service records therefore demonstrate that the Veteran was seen on multiple occasions for pain and other symptoms of pes planus during the first few years of active duty service. The condition was consistently characterized as mild by his treating physicians and the Board observes that the preexisting disability was also characterized as mild on the January 1965 enlistment examination. The December 1998 separation examination does not include any findings of pes planus and the Board finds this evidence indicates that the disability did not worsen in severity during service. Thus, while the Veteran was seen for complaints of foot pain related to pes planus during active duty, the Board finds that the service records do not support a finding that the preexisting disability actually increased in severity during active service. The post-service record is also negative for complaints or treatment related to the feet until October 2009, 10 years after discharge, when the Veteran filed his claim for VA compensation. The Veteran did not report any problems related to pes planus during VA examinations of the lower extremities performed in March 1999 and October 2004. Similarly, the Veteran did not report any foot problems during his initial visit to the VA Medical Center (VAMC) in April 1999, though he did report a history of a service-related right ankle condition. None of his private or VA records document treatment or specific complaints related to the feet until March 2015, when the Veteran was seen by a VA podiatrist for hallux limitus. At that time, the Veteran did not report any symptoms related to pes planus and the podiatrist did not make any findings related to flat feet. In fact, pes planus was not diagnosed after service until February 2016, when a VA podiatrist noted the presence of flat feet during an examination for hallux rigidus. The Veteran sought treatment with a private podiatrist in September 2016, who diagnosed acquired pes planus and hallux rigidus with a 20 years history of foot pain. The private doctor also noted that the Veteran experienced "minimal improvement" with the use of orthotics during service, but did not provide any information regarding whether the condition increased in severity as a result of active duty. The Board finds that the absence of treatment for pes planus for more than 15 years after service is one factor in determining whether the preexisting disability was aggravated during service and in this case weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The record also does not contain any medical opinions in support of in-service aggravation of the Veteran's pes planus. Although the Veteran has stated on several occasions that his private podiatrist provided a medical opinion in support of his claim via a November 2016 Disability Benefits Questionnaire and September 2016 private treatment record, these documents only record contemporaneous findings of pes planus and the Veteran's reported 20 year history of foot pain. They do not contain a medical opinion weighing in favor of aggravation during service. The only medical opinion of record, that of the July 2017 VA examiner, weighs against the claim. After reviewing the claims file, the VA examiner concluded that it is less likely than not that the Veteran's preexisting pes planus increased in disability during active duty. This opinion was based on review of the Veteran's records, particularly his service records, which noted treatment for pes planus and also attributed symptoms of foot pain to other lower extremity conditions and included a normal finding of the feet at separation. The Veteran reports that his feet are painful with weight-bearing and that his pes planus worsened during active duty service. The Veteran is competent to report the symptoms that he experiences and the record establishes the current presence of pes planus. However, the Board finds that the Veteran's lay recollection of events that occurred more than a decade ago are outweighed by the evidence establishing that the disability was not aggravated during service. The contemporaneous medical evidence, including the normal findings at separation, the absence of any complaints or treatment in the medical records for many years after service, and the medical opinion of the July 2017 VA examiner are all probative evidence weighing against aggravation. Therefore, the Board must conclude that the weight of the evidence is against a finding that the Veteran's preexisting pes planus was aggravated during active military service and service connection for this condition is denied. ORDER Entitlement to service connection for bilateral pes planus is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs