Citation Nr: 19108294 Decision Date: 02/04/19 Archive Date: 02/01/19 DOCKET NO. 14-35 934 DATE: February 4, 2019 ORDER Service connection for bilateral pes planus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The Veteran’s preexisting pes planus was not aggravated beyond its natural progression during active duty. CONCLUSION OF LAW The criteria for service connection for a bilateral pes planus has not been met. 38 U.S.C. §§ 1110, 1101, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.125 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran testified before the undersigned Veterans Law Judge in an October 2018 Travel Board hearing. A transcript of that hearing has been associated with the file. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. See Wagner v. Principi,370 F.3d.1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 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 C.F.R. § 3.306 The Veteran testified that he had pes planus upon entering service. He described his foot pain as increasing and continuing in service. His DD-214 shows that he served from December 1987 to July 1990. Military personnel record shows that he served in the National Guard and as a reserve from October 1991 to May 1992. The October 1987 enlistment examination indicates that the Veteran was diagnosed with pes planus prior to entering service. It was described as moderate and asymptomatic. An October 1991 enlistment examination for the National Guard indicates that the Veteran was diagnosed with pes planus, noted as moderate and asymptomatic. February 1992 service treatment records show treatment for an infected toe and infected ingrown toenail. No other service treatment records show treatment for his bilateral feet. The Veteran underwent a VA examination in February 2012. The VA examiner confirmed the diagnosis of bilateral pes planus. No medical opinion was provided. In June 2012 the same VA examiner that performed the February 2012 examination, provided a medical opinion. He opined that it is less likely than not that the Veteran’s pre-existing bilateral pes planus was aggravated beyond the natural progression by his military service. The rationale provided was that there was no record of treatment for foot problems in service, and thus, no aggravation. The examiner noted both entrance examinations that stated the Veteran’s pre-existing pes planus was moderate and asymptomatic. In April 2013 another VA examiner provided a medical opinion. The examiner reviewed the file and the opinion from the June 2012 VA examiner. The examiner opined that there is no change from the June 2012 VA examiner’s opinion. The examiner stated that he personally reviewed the enlistment examination and the enlistment examination for the National Guard, and both described moderate pes planus, asymptomatic. He concluded it was unchanged throughout active duty. A private examiner provided a letter dated May 2014, and opined that the Veteran’s plantar fasciitis is more likely than not related to the service connected plantar fasciitis. The rationale stated was that many people who have served in the armed forces develop biomechanical structured foot complaints based on their training. Another opinion by the same private provider was submitted October 2018. It indicated that the entry examination and compensation examination were reviewed. He opined that the Veteran’s military service aggravated his pes planus beyond its natural progression. His rationale was that many military personnel developed lower extremity biomechanical pathology secondary to their training (carrying heavy packs, road marches), while serving in the Armed Forces. Pes planus flat foot condition is a painful manipulation of military personnel such as the Veteran. He also noted that the Veteran is seen on an ongoing basis in their podiatry clinic. He did not discuss any in-service evidence of why he believes the Veteran’s pes planus was aggravated beyond its natural progression during service. Based upon the review of the record, the Board concludes that the Veteran’s bilateral pes planus is not etiologically related to service. The Veteran is competent to report that he experiences foot pain, but he is not competent to self-diagnose a foot disability or opine that his preexisting foot disability was aggravated during service. Thus, the Veteran, as a layperson, is not competent to offer a diagnosis with respect to the cause of his foot disability as he does not possess the education, training, or experience to diagnose any foot disability or opine as to any in-service aggravation. The Veteran’s pes planus was noted upon entry into service; therefore, he is not presumed sound as to this disability. The most probative evidence of record does not show that his preexisting pes planus was aggravated beyond its natural progression during service. The Board notes that there are service treatment records that show treatment for an ingrown toenail. These do not equate to a worsening of pes planus symptoms, or symptoms of a mechanical foot disability. Nor does it indicate any increase in severity of the Veteran’s pes planus while in service. There are four medical opinions of record with respect to the etiology of the Veteran’s foot disability. In assessing the medical opinions of record, the Board finds the private opinions to be of minimal probative value. Both private opinions are from the same provider. The May 2014 opinion lacked any rationale other than a general discussion of service members having complaints of foot problems due to their training. The private provider’s opinion stated that the Veteran’s foot disability caused his foot disability. The second opinion (October 2018) was clearer with respect to the medical conclusion, but it too lacked rationale, and did not discuss whether the claimed pes planus was aggravated during service. The October 2018 private opinion only stated general conjectures, providing no rationale, and devoid of any discussion of the Veteran’s medical history. Lastly, it did not address itself to the question of whether a preexisting bilateral pes planus increased in severity during service. The June 2012 and April 2013 VA examiners provided clear, detailed rationale to support their conclusion. For example, they noted that the Veteran’s disability pre-existed service and that there was no indication from the record that the Veteran’s asymptomatic pes planus was aggravated, or increased in severity during service. The examiner highlighted the fact that there was no objective evidence to illustrate a worsening of the Veteran’s disability while in service. The Board finds these medical opinions to be credible and highly probative as to whether his preexisting pes planus was aggravated beyond its natural progression during service. Under the circumstances described above, the Board concludes that the Veteran’s pes planus was noted on entry, and therefore, he is not presumed sound as to pes planus. The most probative evidence of record, namely, the STRs and the VA examination reports, do not show not show that there was an increase in the disability during service. Service connection for bilateral pes planus is not warranted. Because the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 54-56 (1990). REASONS FOR REMAND The evidence indicates a current diagnosis of PTSD and depression. The Veteran contends that his psychiatric disability is related to an event that occurred during his ranger training. He testified that he witnessed one of the sergeants hitting another service member in the sternum with his gun, killing him. There is no evidence to corroborate the Veteran’s claimed in-service stressors. Additionally, there is no VA examination related to his claim. Given the current diagnosis of a psychiatric disorder and the Veteran’s reports of symptoms beginning in service, the Board finds that a medical opinion regarding the etiology of his psychiatric disorder is required. The matter is REMANDED for the following action: 1. Obtain and associate any outstanding VA treatment records documenting treatment for any psychiatric disorder. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records. 2. Schedule the Veteran for an appropriate VA examination for an examination to ascertain the nature and likely etiology of his claimed acquired psychiatric disorder. The claims file must be made available to the examiner for review, and the examiner should note that it has been reviewed in full. The examiner should be directed to elicit a complete history from the Veteran. Based on examination of the Veteran and review of the record, the examiner must provide opinions that respond to the following: For any acquired psychiatric disability diagnosed, the examiner should enter an opinion as to whether it is due to an in-service event, injury, or disease. The Veteran’s reported stressors have not been verified. A complete rationale for the opinions expressed should be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel