Citation Nr: 20003697 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 17-45 743 DATE: January 16, 2020 ORDER Entitlement to service connection for disc herniation, L5-S1 intervertebral disc syndrome (IVDS), claimed as lower back, is denied. Entitlement to service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. The Veteran’s IVDS did not have onset in service, did not manifest to a compensable degree within one year of separation from service, and is not otherwise related to service. 2. The Veteran’s pes planus existed prior to his active service and was not aggravated beyond its natural progression during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for IVDS have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for pes planus, claimed as bilateral feet, have not been met. 38 U.S.C. §§ 1110, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1983 to February 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision. Service Connection 1. IVDS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. 38 C.F.R. § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. Id. Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s service treatment records (STRs) indicate that he had complaint of lower back pain while in-service. In February 1984, the Veteran had a diagnosis of lower back pain. The STRs again show complaint of low back pain in July 1984; however, there were no further complaints relative to the back after that date. The Veteran declined a separation medical examination in association with his discharge from service in 1986. Post-service medical records from Tallahassee Family Medicine reflect treatment for back pain beginning in 1998. In 2001, an MRI of the thoracic spine was normal. Complaints of back pain continued into 2012. In August 2014, a VA medical center record notes the Veteran complaining of low back pain intermittently since 1983. These records also show complaints of low back pain at several points from 2014 to 2016. On VA examination in December 2015, the Veteran reported that his back pain began in 1983 during basic training. The examiner noted a diagnosis of IVDS, however, went on to state that the IVDS was not incurred in or caused by the Veteran’s military service. Specifically, the examiner described how the Veteran’s inservice complaints of low back pain were acute in nature and fully resolved after treatment. Direct service connection necessitates a link between the Veteran’s service and his diagnosed back disabilities; however, as to the Veteran’s diagnosed IVDS no such link is supported by the evidence of record. At the outset, there is no evidence of record which indicated that the Veteran had any diagnosis of any back disability while in-service. Though the Veteran did have a diagnosis of back pain on two separate instances in February and July 1984, there is no evidence of record which would establish or indicate that this condition was continuing in nature or that a disability was diagnosed as a result of his complaint of back pain. Based on the evidence of record, the Veteran’s first post-service complaints of back pain was in 1998, 12 years after the Veteran’s separation from service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Additionally, the medical evidence of record does not establish that the Veteran’s diagnosed back disabilities are related to his active duty service. There is no indication in the Veteran’s VAMC care that any of his VA treating providers related his back symptomology or diagnoses in any manner to his active duty service. The Board also notes that the December 2015 VA examination opinion did not find that the Veteran’s diagnosed back disabilities were related to his active service. The Board finds the December 2015 VA examiner’s medical opinion highly probative to the issue of whether the Veteran’s diagnosed back disabilities were related to service. The examiner possessed the necessary education, training, and expertise to provide the requested opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The opinion was based on a review of the claims file which consisted of his service treatment records and post-service medical evidence, and the Veteran’s contentions, upon which the examiner relied upon in giving the opinion. The examiner took into consideration all relevant factors in giving the opinion. Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In sum, the claims file does not contain competent and credible evidence that the Veteran’s back disabilities are related to his active duty service. Accordingly, as the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Pes Planus A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term “noted,” in 38 U.S.C. § 1111, refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304(b). “[I]f a preexisting 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-connection aggravation of that disorder.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claim, the claimant has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The presumption of aggravation may be rebutted if there is clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). In determining whether there has been aggravation, the statute and regulation indicate that the first question to be asked is whether there was an increase in disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In other words, if there is an increase in disability during service, aggravation is presumed, and this presumption can only be rebutted with clear and unmistakable evidence that the increase was due to the natural progress of the disease. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 30607 (1993). If VA determines that there has been an increase in disability, the presumption of aggravation applies regardless of whether the degree of worsening is enough to warrant compensation under the VA rating schedule. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Veteran’s November 1982 enlistment examination report clearly shows that he was diagnosed with pes planus at the time of his entry into active service. The Veteran’s STRs list a complaint of swollen feet in February 1984. There is no other mention of foot pain in the Veteran’s STRs. At a November 2017 VA examination, the Veteran was noted to have a current diagnosis of pes planus. Regarding the February 1984 complaint of swollen feet, the examiner stated that this was soft tissue trauma, an acute injury that resolves without residual. Additionally, the examiner also noted that there were no other complaints of foot issues contained in the record. After reviewing the Veteran’s STRs, the December 2015 VA examiner opined that there is no objective evidence Veteran’s pre-existing pes planus was aggravated during active duty. The Board accords great probative weight to the December 2015 VA examiner’s opinions. In particular, the examiner provided a thorough rationale and based his conclusions on a review of the record, and examination and interview of the Veteran. The examiner offered clear conclusions with reliance on the supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). (Continued on the next page)   Accordingly, the evidence does not show that the Veteran’s pes planus increased in severity during service. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for bilateral pes planus is not warranted, including based on the theory of service aggravation of a preexisting condition. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, Associate 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.