Citation Nr: 20004209 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 17-20 611 DATE: January 16, 2020 ORDER Entitlement to service connection for deep peroneal nerve neuropathy, chronic ankle sprain, and degenerative arthritis of the tibiotalar joint, is granted. Entitlement to service connection for hallux valgus, hallux rigidus, chevron bunionectomy with left foot and ankle reconstruction, is granted. Entitlement to service connection for pes planus is granted. FINDINGS OF FACT 1. The most probative evidence of record demonstrates that deep peroneal nerve neuropathy, chronic ankle sprain, degenerative arthritis of the tibiotalar joint, hallux valgus, hallux rigidus, and chevron bunionectomy with left foot and ankle reconstruction, had onset during active service. 2. The most probative evidence of record demonstrates pre-existing pes planus was aggravated during service. CONCLUSIONS OF LAW 1. The criteria for service connection for deep peroneal nerve neuropathy, chronic ankle sprain, degenerative arthritis of the tibiotalar joint, hallux valgus, hallux rigidus, and chevron bunionectomy with left foot and ankle reconstruction, has been met. 38 U.S.C. §§ 1110 ,1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for service connection for pes planus have been met. 38 U.S.C. §§ 1101, 1110, 1131 1153, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.306 (2018) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2007 to April 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019 the Veteran appeared with her representative for a Board hearing before the undersigned Veterans Law Judge. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service- the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any 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) (2018). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012). 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. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2018). The term “noted” includes only such conditions as are recorded in examination reports. 38 C.F.R. § 3.304(b). In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). A Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116, 132 (2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131; Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. 38 C.F.R. § 3.304(b). In a claim for aggravation, the burden falls on the Veteran, not VA to establish aggravation. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2018); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 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. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 1. Entitlement to service connection for a left foot disorder 2. Entitlement to service connection for a left foot disorder The Veteran contends her left foot/ankle disorders are related to active service. At her October 2019 Board hearing, the Veteran asserted that her disorders are related to an injury she sustained during basic training. Further, she states the injury led to surgery to rebuild her left foot and ankle. See September 2014 Statement. First, the Board finds that the evidence of record supports a finding that there are current disabilities. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). August 2014 VA examination reports note diagnoses of deep peroneal nerve neuropathy, chronic ankle sprain, degenerative arthritis of the tibiotalar joint, hallux valgus, hallux rigidus, and chevron bunionectomy with left foot and ankle reconstruction. Thus, the first element of service connection is met. Second, the in-service disease and injury element of service connection is met. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Initially, the RO denied the Veteran’s case based on a finding that a preexisting left bunion disorder was not aggravated by service. However, the Veteran’s November 2006 enlistment examination did not note any defect or preexisting left foot bunion or ankle deformity. Thus, the Veteran is presumed to have entered service in sound condition, and the burden falls on the government to rebut this presumption by clear and unmistakable evidence that the disorders pre-existed and was not aggravated thereby. 38 U.S.C. § 1111. The August 2014 VA examiner expressly found that the left bunion did not pre-exist service. Although a March 2007 Entrance Physical Standards Board (EPSBD) clinical found that the Veteran’s left bunion and dorsal exostosis existed prior to service and were not aggravated by service, this is belied by the normal clinical evaluation of the feet just one month prior (except for pes planus). The Board finds that these findings do not show clear and unmistakable evidence that the disorders preexisted service, as they do not rise to the high standard set by 38 U.S.C. § 1111. Based on the evidence of record, the Board finds that the presumption of soundness is not rebutted, and the Veteran is presumed sound regarding any left foot disorder (except for pes planus) during service. Next, the Veteran’s service treatment records (STRs) demonstrate the presence of a left bunion, dorsal exostosis, and hallux valgus. Thus, these disabilities appear to have onset during active duty. Additionally, the August 2014 VA examiner found that each of the above-noted diagnoses, to include the residuals of left foot and ankle reconstruction, began during active duty. The VA examiner stated that the Veteran’s foot and ankle conditions were severe enough at discharge to required extensive surgery within 7 months. Accordingly, the second element of service connection is met. Third, the Board finds that the evidence indicates that there is a nexus between the in-service diagnoses and symptoms and the Veteran’s current disabilities. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Notably, a May 2007 private medical record noted that the Veteran sought treatment for her left foot disabilities, to include surgery; this is approximately one month after service discharge. She eventually had surgery in October 2007 to attempt to fix the bunion and other disabilities. The August 2014 VA examiner opined that it was as likely as not that each of the foot and ankle diagnoses had onset during service. The examiner reviewed the relevant evidence of record, to include the Veteran’s lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). Specifically, the examiner noted the Veteran’s STRs and the well-documented private treatment history, including extensive reconstructive surgery on her left ankle and foot to include post-operative diagnoses of deep peroneal nerve decompression from entrapment within seven months of discharge. This supports a finding that left foot symptoms have been present since service and supports her testimony at the October 2019 hearing regarding the same. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, demeanor at a hearing, and consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Therefore, the Board finds that a nexus is demonstrated, and service connection for the Veteran's left foot and ankle deep peroneal nerve neuropathy, chronic ankle sprain, degenerative arthritis of the tibiotalar joint, hallux valgus, hallux rigidus, chevron bunionectomy with left foot and ankle reconstruction and residuals thereof, is warranted. 3. Entitlement to service connection for pes planus Regarding the pes planus, the Veteran contends her disorder was aggravated by service by an injury sustained in boot camp. See September 2014 statement. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The August 2014 VA examination record documents a diagnoses of pes planus. Accordingly, the first element of service connection is met. Second, the Board finds that pes planus pre-existed service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.306. The Veteran’s entry report of medical examination in November 2006 documents the examiner’s finding of pes planus, mild, asymptomatic. Accordingly, the issue for resolution is whether this pre-existing disability was aggravated by active service. In March 2007 the Veteran’s left foot was evaluated. The EPSBD report documents a diagnosis of left bunion and dorsal exostosis. The report documents the Veteran stated she had left foot pain since arriving to boot camp and she denied falling or injuring her joints. The report concluded the disorders existed prior to service and were not aggravated by service and recommended she be separated from the military for not meeting entrance standards. At the October 2019 Board hearing the Veteran conceded that she signed the report that indicated she had not sustained an injury; however, she stated that no one explained to her what she was signing. Also, at the hearing the Veteran described that she had in fact fallen during obstacle course training and landed wrong on her left foot sustaining an injury. The Board finds the Veteran’s testimony in this regarding both competent and credible as she is capable of reporting an injury to her left foot and based on her demeanor at the hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, demeanor at a hearing, and consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Private treatment records from May 2007 to May 2014 document a history of treatment for the Veteran’s left foot. An October 2007 report from the Veteran’s private physician, noted the Veteran underwent surgery for her left foot. In August 2009 she presented with a painful right bunion and painful retained screw left heel. She underwent another surgery in August 2009 to address the screw in her left heel. The Veteran was afforded a VA medical examination in August 2014. The examiner diagnosed flat foot (pes planus), degenerative arthritis, and deep peroneal nerve neuropathy. Based on a review of the Veteran’s history, the examiner opined the Veteran’s pes planus clearly and unmistakably existed prior to service, was aggravated beyond its natural progression in service. The examiner provided a thorough review of the relevant evidence, including the Veteran’s STRs, private medical records, and the Veteran’s lay statements. The examiner concluded the Veteran now has progression of the mild pes planus to moderate, severe, with inward bowing of achilles tendons and severe flatness of arch. Thus, the Veteran must show her pes planus disorder was aggravated beyond its natural progressing during active duty. The Board finds that the preponderance of evidence shows that the Veteran’s pre-existing pes planus disorder was aggravated by service. In making this finding, the Board accords the findings to the August 2014 VA examiner significant probative value as it is based upon a thorough assessment of the relevant medical evidence and supporting explanation was provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). This finding is supported by STRs indicating that there was mild pre-existing pes planus, VA examination noting a progression from mild to moderate/severe pes planus, private treatment reports, and the Veteran’s lay statements. In conclusion, the Board finds that the Veteran’s pre-existing pes planus disorder was aggravated by service; therefore, service connection is warranted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.