Citation Nr: 19119359 Decision Date: 03/18/19 Archive Date: 03/15/19 DOCKET NO. 17-26 393 DATE: March 18, 2019 ORDER Service connection for left ulnar nerve neuropathy, claimed as a left arm condition, is granted. Service connection for pes planus, based upon in-service aggravation, is granted. FINDINGS OF FACT 1. The evidence of record indicates the Veteran’s left ulnar nerve neuropathy is likely related to active service. 2. The Veteran’s pes planus was noted upon entry onto active duty and underwent an increase in severity during service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ulnar nerve neuropathy have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service-connected aggravation of pes planus have been met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2001 to February 2011. These issues come on appeal to the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service Connection in General Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). Analysis The Board has reviewed all the evidence in the Veteran’s claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 1. Service connection for left ulnar nerve neuropathy, claimed as a left arm condition, is granted. The Veteran contends he has a left elbow condition, claimed as a left arm condition, that is due to his active military service. An essential element of a claim for service connection is evidence of a current disability. The claims folder shows the Veteran has a diagnosis of left ulnar nerve neuropathy. See September 2015 VA medical examination. Based on the medical evidence provided, the Board finds the Veteran has met an essential element of having a disability for VA purposes. A second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. The claims folder reflects the Veteran was diagnosed with left ulnar nerve neuropathy and experienced left arm symptoms while on active service. As such, the Board finds the element of an in-service injury has been met. A third element for service connection is competent credible evidence of a nexus between the current disability and the in-service disease or injury, or, in some cases, continuity of symptoms. Regarding this, in the September 2015 VA medical examination report, the examiner opined the Veteran’s left arm disability was not due to his active military service. The examiner found no objective findings that the Veteran had carpal tunnel syndrome or ulnar neuropathy. The Veteran did not exhibit swelling, and a normal range of motion for the left elbow was found on examination. An EMG had been performed, but the results were unreadable. The examiner also noted the Veteran’s condition occasionally bothered him when he typed or lifted, and he experienced numbness and pain around the elbow. The examiner went on to note the Veteran “still has some symptoms and he does have some night pain as well.” For the following reasons, the Board finds service connection for left ulnar nerve neuropathy, claimed as a left arm condition, is warranted. As the claims folder reflects the Veteran was injured in service, experienced left arm symptoms and diagnosed with left ulnar nerve neuropathy during his active service, and continues to experience left arm symptoms or flare-ups since his active service, the Board finds service connection for the Veteran’s claim is warranted. While the VA examiner found the Veteran’s left elbow condition was asymptomatic, the examiner did note the Veteran experiences left arm symptoms. Accordingly, while there was not objective evidence on examination of the Veteran’s left elbow on the day of the examination, the Veteran did report symptoms and flare-ups that occur during certain activities and at night. This is credible evidence that the Veteran’s condition is not asymptomatic. Accordingly, the Board finds service connection for left ulnar nerve neuropathy is warranted. 2. Service connection for pes planus, based upon in-service aggravation, is granted. VA regulations provide that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b). If a pre-existing disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service- connected aggravation of that disorder. In that case 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C. § 1153 arises, the burden 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." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. If the Veteran has a condition that pre-existed military service, the issue becomes whether the disease or injury was aggravated during service. 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 progression of the disease. The Veteran has been diagnosed as having pes planus, with pain on weight-bearing, interference with standing, and disturbance of locomotion. He uses orthotics. See VA examination report, dated in August 2015. On entrance examination in November 2001, the Veteran denied a history of foot trouble. On clinical examination, the examiner noted that the Veteran had mild pes planus, asymptomatic. As such, the presumption of soundness does not attach in this case. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1). This is so because on entrance examination the Veteran was noted to have pes planus. Therefore, pes planus was a pre-existing condition. As the presumption of soundness does not apply, the evidence must establish that aggravation of the Veteran's pes planus occurred during service. As stated above, 38 U.S.C. §1153 contains a presumption of aggravation when it is shown that a pre-existing disorder underwent an increase in disability during service. Here, the record demonstrates that the Veteran's pre-existing pes planus underwent an increase in severity during service. On entrance examination in November 2001, his pes planus was described as mild and asymptomatic. In contrast, the Veteran was treated for foot pain associated with pes planus during service beginning in July 2009. In April 2010, it was noted that he had foot pain, posterior tibial tendon pain, and ankle instability. He was provided orthotics. In August 2010, the Veteran reported right foot pain for more than two years. He was diagnosed as having flat feet, continued pain even with insoles. In light of the foregoing, the Board finds that the presumption of aggravation has been raised. There is competent and credible evidence of a worsening of the Veteran's right pes planus during service. His pes planus was asymptomatic on entrance examination in November 2001. It became symptomatic in approximately 2009, and in 2010 the Veteran required the use of orthotics. The August 2015 VA examiner concluded that the Veteran’s pes planus was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, her rationale is flawed. As a rationale, the examiner merely noted “No marked injury that would have aggravated his pes planus condition was noted in pertinent medical records.” As the examiner’s opinion lacks probative value, the Board finds that there is no clear and unmistakable evidence of record showing that the increase in disability was due to the natural progress of the disease. Thus, service connection for pes planus based upon in-service aggravation is warranted. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs