Citation Nr: 20003200 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 18-03 576 DATE: January 14, 2020 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a bilateral foot condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a thoracolumbar spine or lumbosacral spine condition at any time during or approximate to the pendency of the claim. 2. A bilateral foot condition (pes planus) was noted upon entrance to service and was not permanently aggravated by active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a bilateral foot condition have not been met. 38 U.S.C. §§ 1101, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to August 1983. He had subsequent Army Reserves service. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for a back disability The Veteran contends that he has a chronic disability manifested by back pain that he believes is related to an injury in April 1987 when he fell from a truck while in the Army Reserves. The service treatment records from the Veteran’s period of active duty from 1979 to 1983 do not note any back complaints or back pathology. An April 1987 Reserves treatment record noted that the Veteran was seen with complaints of intermittent pain in the upper-mid back following his having fallen from a truck a month earlier. The Veteran was noted to be tender over the T4-T5 area. He had normal deep tendon reflexes, good active range of motion, and positive strength. The assessment was probable myalgia. Following service, in July 2006 the Veteran was seen following a motor vehicle accident. X-rays at that time noted no fractures of the lumbosacral spine. Very minimal degenerative changes of the lumbosacral spine were noted. On VA examination in June 2014, the examiner found no current diagnosis of a thoracolumbar spine condition. The examiner noted the April 1987 Reserves record that diagnosed myalgia. On examination, the Veteran reported that he had experienced neck and back pain for many years and that he currently took Gabapentin for pain. The examiner opined that the Veteran’s claimed back condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner explained that review of the service treatment records gave no indication that Veteran was evaluated or treated for a chronic back condition while in active military service. After careful review of the evidence, the Board finds service connection is not warranted. The Board concludes that the Veteran does not have a current diagnosis of a thoracolumbar or lumbosacral spine condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a current diagnosis, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992). The Board is mindful of Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) in which the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. However, in this case, there is no showing of impaired earning capacity due to back pain. In reaching this conclusion, the Board has considered the Veteran’s statements in support of his claim. However, the Board finds the objective medical evidence more probative in this instance. Though the Veteran was seen with a complaint for back pain in 1987 during his Reserves service, there is no evidence to suggest that he has a current diagnosed thoracolumbar spine or lumbosacral spine condition. While the Veteran believes he has a back disability related to his active service, the Board gives more probative weight to the June 2014 VA examination and the other objective medical evidence of record. The examiner found no diagnosis of a back condition. The opinion reflects consideration of the Veteran’s history, to include his in-service and post-service statements regarding his back, and it makes clear the basis of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, the examiner is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions. There is no competent evidence of a current back condition for which service connection can be granted. The Veteran has not asserted, nor provided any supporting evidence of, impaired earning capacity due to back pain Thus, the preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for a back condition is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a bilateral foot condition A preexisting 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 (a). 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. §§ 3.304, 3.306(b). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306 (a). Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). The Veteran’s February 1979 enlistment examination showed that mild pes planus, asymptomatic, not considered disabling, was noted. In October 1980, the Veteran complained that his feet hurt for the past two weeks. The Veteran reported he worked on the wash rack, washing vehicles. Examination showed callouses on both feet near the toes. The callouses were shaved down and moleskin was applied to the area. The Veteran was advised to use moleskin daily and to keep the callouses trimmed. There were no further foot treatments or complaints noted during the Veteran’s period of service. He did not have a separation examination prior to separation in August 1983. A VA foot examination in June 2014 shows a diagnosis of bilateral pes planus that had been noted on entrance into service in 1979. On examination, the Veteran did not report any pain of the feet. No pain was elicited on palpation of either foot. There were no foot callouses present. There was no tenderness to the plantar surfaces of either foot. The examiner noted decreased longitudinal arch height of both feet. The examiner stated that the Veteran did not have any foot injuries or foot conditions other than pes planus. The examiner opined that there was no clinical indication that the Veteran’s diagnosis of pes planus, that existed prior to military service, was aggravated beyond natural progression while in active military service. He further noted that on the current examination, the Veteran did not complain of any symptoms secondary to pes planus bilaterally and had no other foot injuries or conditions. The diagnosed condition had no functional impact on the Veteran’s ability to function or perform occupational tasks. After careful review of the evidence, the Board finds that service connection for a bilateral foot condition is not warranted. As a bilateral foot condition (pes planus) was noted upon entrance to active duty, the Veteran is not presumed sound upon entrance to his period of active duty service as it relates to his feet. 38 C.F.R. § 3.304. As noted above, a preexisting injury or disease will be considered to have been aggravated by active service 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. 38 C.F.R. § 3.306. The Veteran bears the burden of establishing aggravation of a pre-existing condition. Jensen v. Brown, 1417. Here, the evidence shows there was no increase in the severity of the underlying bilateral foot condition during active service despite the Veteran being seen with a vague complaint of foot pain in October 1980. In this regard, the Board notes that there is no indication that the foot callouses noted in October 1980 were related to his pes planus. In any case, there are no other treatment records showing continued complaints or treatment for a foot problem in service. Post-service treatment records also do not establish permanent aggravation of the Veteran’s bilateral pes planus. The VA examiner in June 2014 found no evidence to support a finding of aggravation of the Veteran’s pes planus in service. The examiner specifically noted that the Veteran did not have current foot pain or other complaints related to his pes planus. In light of the foregoing, the Board finds that the presumption of aggravation has not been raised. That is, the competent and contemporaneous evidence does not demonstrate an increase in the Veteran’s preexisting bilateral foot disability, pes planus, during service. Based on the evidence of record, the Board finds that the preponderance of the evidence does not establish that the Veteran’s preexisting bilateral foot disability was aggravated by service. Further, to the extent that the Veteran may believe that the foot calluses noted in service in October 1980 represented a bilateral foot disability that was incurred in service, there is no competent evidence to support such a finding. There is no medical evidence showing chronic foot callouses following service. The June 2014 VA foot examination found no foot disability other than pes planus, and the examiner specifically noted that no calluses were present. Therefore, service connection for a bilateral foot disability is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.