Citation Nr: 1825629	
Decision Date: 04/26/18    Archive Date: 05/07/18

DOCKET NO.  14-42 628	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for bilateral pes planus. 


REPRESENTATION

Appellant represented by:	Michigan Veterans Affairs Agency


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

P. Poindexter, Associate Counsel 


INTRODUCTION

The appellant is a Veteran who served on active duty from October 1977 to March 1980.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO).  In February 2018, a videoconference hearing was held before the undersigned; a transcript is in the record.  


FINDING OF FACT

Pes planus was noted on induction, and is not shown to have increased in severity during, or as a result of, the Veteran's active service.


CONCLUSION OF LAW

Service connection for bilateral pes planus is not warranted.  38 U.S.C. §§ 1101, 1111, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306(2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

VA's duty to notify was satisfied by a letter dated in March 2013.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103 (c)(2) requires a Veterans Law Judge who conducts a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked.  During the February 2018 hearing, the undersigned identified the issue on appeal, and explained what evidence is needed to substantiate the claim.  A deficiency in the conduct of the hearing is not alleged.  

The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured.  He was afforded a VA examination in August 2013.  The Board finds the VA examination adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  

Legal Criteria

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.  Service connection may be granted for a disease initially 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).

To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability.  See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

Where a Veteran is found to have had a pre-existing disability, 38 U.S.C. § 1153 applies; for service connection to be warranted, it must be shown that the preexisting injury or disease was aggravated by a veteran's active military, naval, or air service.  Aggravation will be found 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 progress of the disease.

Competent medical evidence is necessary where the determinative question is one requiring medical knowledge.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. 
§ 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Factual Background

The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

Non-disqualifying pes planus was noted on the Veteran's June 1977 service entrance examination; he was assigned a #2 profile for lower extremities.  The Veteran's STRs are otherwise silent for complaints, findings, treatment or diagnosis relating to the feet.  On February 1980 service separation examination the feet were normal on clinical evaluation; in an associated report of medical history, he did not endorse having a history of foot trouble.
The earliest postservice clinical record pertaining to the Veteran's feet is in a September 2012 VA treatment record which notes the Veteran's complaint that his feet feel like he is "walking on bricks".  On examination, muscle strength was a 5/5.  There was no specific foot pain over the sinus tarsi or the medial structures.  Non-painful swelling of the right Achilles tendon was noted.  The diagnosis was bilateral pes planus.  X-rays found marginal erosions at the head of the first metatarsal and mild joint with mild soft tissue swelling and spacing narrowing with degenerative osteoarthrosis of moderate severity at the first metatarsophalangeal joint.  
In an April 2013 statement, the Veteran asserted that his feet were under constant stress during service.  He related that during basic training he participated in drills which required daily jumping, running and marching.  He also reported that he experienced cramping and throbbing in his feet, which he self-treated/medicated with asprin.
On August 2013 VA examination, the Veteran reported that he has had pes planus since birth.  He reported having discomfort and pain in both feet after prolonged standing and walking since 1978, but "more so since 2012".  The diagnosis was bilateral pes planus.  The examiner acknowledged that pes planus was noted on the Veteran's June 1977 entrance examination and opined that that his foot condition which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness.  She noted that there is no evidence in the Veteran's medical record that his pes planus was aggravated in service. 
In a November 2013 statement, the Veteran reported that his feet have worsened since he entered the military.  He reported pain and irritation with prolonged standing.   
A July 2015 VA treatment record notes the Veteran's use of orthotics. 
In February 2018, the Veteran submitted statements from family and friends, essentially reporting that he has had foot complaints since his separation from service.  His uncle indicated that following service the Veteran walked with a lump.  
At the February 2018 videoconference hearing before the undersigned, the Veteran testified, in essence that his pes planus increased in severity during service.  He testified that at separation, he was unable to walk as long as he had prior to service.  He testified that the drugs he abused beginning in service and postservice masked his foot pain.  


Analysis

Pes planus was noted on the Veteran's service entrance examination, and he does not dispute that it pre-existed service.  He contends that his bilateral pes planus, was aggravated by his active duty service.  

Aggravation is established by showing an increase in disability (beyond natural progression) during service.  Whether a disability increased in severity during/as a result of service is determined by comparing the states of the disability before, during, and after the period of active duty service.  38 C.F.R. § 3.306(b).   There is limited evidence regarding the state of the pes planus prior to service.  What is shown is that it was capable of being noted on service entrance examination, but was considered non-disqualifying, and an L-2 profile was assigned. 

There is no mention of pes planus in the Veteran's STRs; and on service separation examination his feet were normal on clinical evaluation and he did not endorse a history of foot trouble.  Consequently, the STRs provide no support for the allegation that the pre-existing pes planus increased in severity during service.

There is no contemporaneous evidence regarding the status of the Veteran's pes planus postservice prior to August 2012, when bilateral pes planus was noted on a VA examination scheduled in connection with this claim.   The Veteran reported that he has had pes planus since birth.  He reported discomfort and pain in his feet since 1978, worse since 2012.  The examiner (citing to STRs which are silent for pes planus), opined that there is clear and unmistakable evidence that pes planus was not aggravated by service (i.e., the STRs which do not show worsening). The report of this examination is the only medical evidence that addresses whether the Veteran's pes planus was aggravated by service, and the opinion is against the Veteran's claim.

The only evidence that supports the Veteran's claim is in his own statements indicating that his pes planus was aggravated by his activities in service (and that he self-treated the manifestations by over-the-counter pain medication) and statements by his relatives noting that he complained about his feet after service (to include a report by one that he was observed to be limping).  Comparing what is reported in these statements with what is otherwise shown by record, the Board notes they are essentially recollections of events in the remote past (more than 30 years ago).  Regarding the statement to the effect that the Veteran was observed to be limping, it is noteworthy that the Veteran's service separation examination found no limp and that the VA examination conducted in conjunction with the current claim found a normal gait (i.e., no limp), so any limp noted soon after service would not be corroborating evidence of a chronic increase in severity of disability during service.  Furthermore, the providers of the statements are laypersons and their statements are not competent evidence that any of the Veteran's early postservice complaints (they report he then made) were attributable to a worsened pes planus disability.  The Veteran's own reports that his pes planus was symptomatic during service, and was self-medicated are inconsistent with contemporaneous clinical data, are self-serving, and merit no probative value.

Finally, the lengthy interval between service (when separation examination found and medical history noted no pertinent abnormality, but noted a history of hay fever) is of itself probative evidence that pre-existing pes planus was not aggravated by service.  

In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's pre-existing pes planus was aggravated by service, and against this claim.  Therefore, the benefit of the doubt doctrine does not apply.  The appeal in this matter must be denied.


ORDER

Service connection for bilateral pes planus is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs