Citation Nr: 1817303 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 11-03 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for bilateral pes planus (claimed as foot condition). REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to February 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a hearing before the RO in February 2011; the transcript is of record. The Board previously remanded this matter for further development in December 2014 and June 2017, which has since been completed. FINDING OF FACT The Veteran's bilateral pes planus is a congenital defect that was not subjected to any superimposed disease or injury during military service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 4.9 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for bilateral pes planus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable law and regulations for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2017). However, service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); and Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)). If, during an individual's military service, superimposed disease or injury does occur, service connection may be warranted for the resultant disability. Analysis After a review of the record, the Board finds that service connection is not warranted for the reasons that follow. The Veteran's November 1977 pre-entrance examination showed a normal examination. Service treatment records do not reflect any complaints or treatment for any acute bilateral foot injuries; only treatment for tinea pedis, a fungal infection on his feet. The December 1979 separation examination reflected an assessment of "pes planus 2[nd degree] - asymptomatic." Post-service treatment records, including records from the Social Security Administration are negative for specific diagnosis of bilateral pes planus. In August 2009, the Veteran underwent a VA examination. The Veteran reported that his feet were bumped by a forklift during service. Upon physical examination, the examiner diagnosed bilateral pes planus, which he found to be congenital. The examiner, however, did not comment on whether the Veteran's congenital bilateral pes planus was subject to a superimposed injury. At the September 2011 RO hearing, the Veteran testified that he had some type of puffy mass under the arches of his feet and had arched feet when in service. See RO Hearing Transcript, 10. The Board remanded this claim in December 2014, in part, to provide the Veteran with another VA examination to clarify whether the bilateral pes planus were an acquired disability, or a congenital or developmental defect. A nexus opinion was also requested. Pursuant to the Board's remand instructions, the Veteran was afforded a VA examination in July 2015. After examining the Veteran and reviewing the claims file, the examiner indicated that the Veteran did not have a current bilateral pes planus condition. The examiner noted that the August 2009 VA examination diagnosis had been made without supporting radiographic evidence. As such, the examiner found no congenital or developmental defect, or acquired flat foot. Consequently, the examiner did not provide the requested etiology opinion. The Board remanded this matter for an addendum opinion in June 2017, as the August 2009 VA examiner based his diagnosis of bilateral flat feet, in pertinent part, on X-ray findings. The Board determined that the Veteran had a current diagnosis of bilateral pes planus for at least a portion of his appeal, which satisfies the requirement of a current diagnosis. Pursuant to the June 2017 Board remand, another examiner reviewed the Veteran's claims folder and medical records in September 2017. This examiner opined that the Veteran's current bilateral pes planus condition is a congenital or developmental defect. The rationale was that pes planus is typically congenital or developmental and it increases the risk of certain conditions, including development of hallux valgus and plantar fasciitis. The Veteran currently has hallux valgus. The examiner reconciled the difference in diagnosis between the August 2009 and July 2015 VA examiners by stating the August 2009 X-ray were non-weightbearing and would not have shown pes planus; the July 2015 examiner found the X-ray report at that time showed calcaneal spurring and hallux valgus. Thus, the September 2017 examiner opined that the Veteran did have bilateral pes planus during the appeal, as the calcaneal spurring and hallux valgus points to a pes planus condition. Additionally, the examiner did not find that the Veteran had a superimposed injury that aggravated the bilateral pes planus condition. The Veteran was noted as symptomatic with respect to his bilateral pes planus upon separation from service. The examiner opined that if the Veteran had a superimposed injury prior to separation, such as that mentioned in the August 2009 VA examination, some indication of a positive finding would have been made upon separation or in the service treatment records. Traumatic pes planus, as an example, would have included issues such as posterior tibial tending injury. However, no findings were made during service or noted currently. The examiner stated that the August 2009 VA examination specifically tested this tendon and did an inversion and eversion bilateral foot test that showed no issues were found. Given the above, service connection for pes planus is not warranted. The August 2009 and September 2017 VA medical opinions are competent and persuasive evidence that demonstrates that the Veteran's bilateral pes planus is a congenital defect that was not subject to a superimposed disability or injury during active service. There is no competent medical evidence to the contrary. The Board has considered the Veteran's lay contentions that he was diagnosed in Germany with bilateral pes planus condition and that he has arch issues on his feet. See September 2011 RO Hearing transcript; October 2014 Informal Hearing Presentation. As a lay person, the Veteran is competent to relate the nature of his pes planus symptoms. He is not, however, competent to determine whether his pes planus is congenital in nature, and whether it is a congenital defect or a disease. He is also not competent to determine whether such congenital defect was subject superimposed injury in service that caused additional disability. There is no suggestion the Veteran has had medical training to otherwise render his opinion competent. As he is lacking appropriate medical training and expertise, his lay assertions regarding nexus have no probative value. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In summary, the Board finds that the Veteran's bilateral pes planus is not related to military service. There is no doubt to be resolved; service connection for bilateral pes planus is not warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Service connection for bilateral pes planus (claimed as a foot condition) is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs