Citation Nr: 20005686 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 11-08 560 DATE: January 23, 2020 ORDER Entitlement to service connection for scoliosis is denied. Entitlement to service connection for pes planus (flat feet) is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for a foot disability other than pes planus, including bilateral hallux valgus, bunion associated with right foot hallux valgus, osteoarthritis of the right great toe, and hammer toe of the right second toe status post amputation, is denied. FINDINGS OF FACT 1. The Veteran’s scoliosis and bilateral pes planus both preexisted his military service and were not aggravated by his military service – meaning worsened beyond their natural progression. 2. The preponderance of the evidence is against finding that he has had a back disability (apart from scoliosis) at any time during or approximate to the pendency of this claim.   3. The preponderance of the evidence is against finding that any other foot disability (meaning aside from pes planus), including bilateral hallux valgus, bunion associated with right foot hallux valgus, osteoarthritis of the right great toe, and hammer toe of the right second toe status post amputation, began during the Veteran’s active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The Veteran’s preexisting scoliosis and preexisting bilateral pes planus were not incurred in or aggravated by his active military service. 38 U.S.C. §§ 1110, 1132, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306. 2. The criteria also are not met for entitlement to service connection for a back disability other than scoliosis and for a foot disability other than pes planus, including bilateral hallux valgus, bunion associated with right foot hallux valgus, osteoarthritis of the right great toe, and hammer toe of the right second toe status post amputation. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1963 to May 1967. This appeal is before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a hearing before the undersigned Veterans Law Judge (VLJ) of the Board in February 2015. A transcript of the hearing is of record. In May 2015 and February 2018, the Board remanded these claims for further development. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). According to VA regulation, every person employed in the active military, naval, or air service 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 the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or where evidence of medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1132. Only such conditions as are recorded in examination reports are considered as noted at enlistment. 38 C.F.R. § 3.304(b). See also Quirin v. Shinseki, 22 Vet. App. 390, 394, 396 (2009). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a finding that the increase in disability is due to the natural progress of the disease. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of record. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. During the Veteran’s May 1963 enlistment examination, the examiner noted that the Veteran had pes planus (flat feet) and “slight scoliosis.” The examiner also noted that each of these conditions was “NCD”, i.e., “not considered disabling.” A condition does not have to be considered disabling, however, to be noted, else, every condition noted at time of examination for anticipated entrance into service necessarily would be a preclusion to a Veteran serving in the military so the question of aggravation of a pre-existing disability resultantly never would arise.   Because these conditions were noted during the Veteran’s military enlistment examination, he cannot bring a claim for service connection for these conditions on the premise they were directly or even presumptively incurred during his service, only instead a claim predicated on the alternative notion that his service aggravated these conditions – again, meaning worsened them beyond their natural progression. In this circumstance 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation of these pre-existing disabilities by his service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010), citing Wagner, v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). But the presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). That said, as already alluded to, 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. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are insufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 1. Entitlement to service connection for scoliosis and bilateral pes planus The Veteran asserts that his preexisting scoliosis and bilateral pes planus were aggravated by his military service as a result of physical activity and exercise including, among other things, playing basketball and exercising while wearing combat boots. The weight of the evidence demonstrates that the preexisting scoliosis and pes planus did not increase in severity during the Veteran’s active service beyond their natural progression, that is, they were not aggravated by his service. His service treatment records (STRs) are grossly unremarkable for complaints of back pain, foot pain, or other symptoms referable to his back or feet. During his April 1967 separation examination, he marked “no” in response to the questions regarding whether he had experienced recurrent back pain and foot trouble, and he indicated he was in “good” health on his self-completed Report of Medical History. Additionally, the examiner at that April 1967 separation examination noted that the Veteran’s spine and feet were normal. This indicates that neither his scoliosis nor pes planus had worsened at all, much less due to his service or while in service, including to an extent beyond the natural progression of these conditions. His service ended in May 1967. In January 2019, on remand, the Veteran underwent VA examinations for his spine and feet. He reported that his low back pain had onset approximately 20 years prior, so in 1999 or thereabouts. Even if true, that was some 32 years after his separation from active service. During his foot examination, he reported experiencing pain as a constant ache that had onset only about 6 years prior, so even if true meaning around the beginning of 2013. That, too, was long after his military service ended, indeed, some 46 years after his separation from service. Concerning the Veteran’s claimed back disability, the January 2019 VA examiner concluded the Veteran did not have a current back disability, including scoliosis. Concerning the Veteran’s claim referable to his feet, the January 2019 VA examiner indicated the Veteran’s congenital pes planus was less likely than not incurred in, caused by, or a result of his military service, also that his congenital pes planus was less likely than not aggravated by his military service. The examiner diagnosed “minimal asymptomatic bilateral pes planus”, further indication there was not the required worsening of this condition during or owing to the Veteran’s service.   There conversely are no supporting medical opinions showing the Veteran's pre-existing scoliosis and/or pes planus were aggravated by his service – including such that he now has additional disability owing to superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990) (discussing characterization of a congenital abnormality as a “defect” versus a “disease”). In fact, the medical evidence of record does not support the notion that the Veteran’s scoliosis or bilateral pes planus worsened in any way during his active military service. The January 2019 VA examinations note that he does not have a current back disability and that his pes planus is currently asymptomatic. Again, 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 Board additionally has considered the Veteran's statements about his scoliosis and pes planus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). He is competent to identify flat feet since this is visibly evident even to a layman. He is also competent to relate the symptoms that he experiences, such as pain in his back and feet, but he is not competent to opine on whether there is a link between his current pain and his service – including in terms of whether the pain represents the required worsening of the underlying conditions, not just their associated symptoms, because these conclusions require specialized medical knowledge and training. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that an anterior cruciate ligament (ACL) tear is too "medically complex" for lay diagnosis based on symptoms); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a disorder capable of lay diagnosis). For these reasons and bases, the Board finds that the weight of the evidence demonstrates that neither the preexisting scoliosis nor pes planus increased in severity during service beyond their natural progression – i.e., neither was aggravated by the Veteran’s service or has resulted in additional disability owing to superimposed disease or injury. Therefore, the criteria for service connection for scoliosis and for bilateral pes planus, including based on aggravation in service, have not been met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. 2. Entitlement to service connection for a back disability other than scoliosis The Board concludes that the Veteran does not have a current diagnosis of a back disability and has not had one at any time during the pendency of this claim or recent to the filing of it. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). June and October 2015 VA treatment records show the Veteran, while seeking treatment for his non-service-connected left knee disability, stated he also had low back pain. The January 2019 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of back pain, he did not have a diagnosis of a back disability. Further, despite intermittent complaints of back pain, VA treatment records do not contain a diagnosis of any back disability, even as recently as May 2019. At his January 2019 VA examination, the Veteran noted that he had low back pain that had onset in around 1999, roughly 32 years after his separation from service. He noted that he walks with a cane to help alleviate pressure on his back. He also reported experiencing functional limitation due to his back pain because he is limited because he cannot walk more than 100 feet, cannot stand or sit in one position for more than 10 minutes, and has trouble twisting his back, squatting, running, and lifting more than 50 pounds. The January 2019 VA examiner did mark that the Veteran’s back condition impacts his ability to work, however, the examiner then merely repeated the same general functional limitations as stated above, which were subjectively reported by the Veteran. The January 2019 VA examiner did not find objective evidence that the Veteran had any back disability, or functional limitation from his back pain, other than that subjectively reported by the Veteran. The examiner observed that the Veteran had full range of motion in his spine and did not demonstrate pain on movement or with weight bearing. The Veteran conceded he did not suffer from flare-ups of his lower back pain, and he was able to complete repetitive-use testing with no additional loss of function or range of motion. The examiner observed the Veteran’s disturbance of locomotion was a contributing factor in his low back pain. The Board is cognizant of the rather recent ruling in Saunders v. Wilkie, which found that pain alone can constitute a disability. 886 F.3d 1356, 1368 (Fed. Cir. 2018). However, in Saunders, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Id. Rather, the Court clarified that "[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity." Id. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). With these holdings in mind, even if the Veteran’s back pain does objectively rise to the level of causing functional impairment in his earning capacity, it has been attributable to his non-service-connected disturbance in locomotion rather than to any incident, injury, or disease incurred in service or as a result of his service. The Veteran is not competent to attribute his subjective back pain to an underlying diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). He also is not competent to, in turn, attribute the pain to a disease, injury or event during his service. Consequently, the Board gives more probative weight to the competent medical evidence, including the January 2019 VA examination and opinion. The Board therefore finds that service connection for a back disability even other than scoliosis is not warranted as there is no current diagnosis of a disability or objective medical evidence indicating the Veteran experiences pain that causes a functional impairment of his earning capacity owing to his military service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).   3. Entitlement to service connection for a foot disability other than pes planus, to include bilateral hallux valgus, bunion associated with right hallux valgus, osteoarthritis of the right great toe, and hammer toe of the right second toe status post amputation The Veteran asserts that his foot disabilities other than pes planus did not preexist his military service, namely, his bilateral hallux valgus, bunion associated with right hallux valgus, osteoarthritis of the right great toe, and hammer toe of the right second toe status post amputation, but instead were all caused by his service from walking and exercising in combat boots. Presumed Service Connection for Chronic Disability - Osteoarthritis of the right great toe Certain chronic diseases will be presumed to have been incurred in service, absent an intercurrent cause, if they were shown as chronic in service or if they manifested to a compensable degree within a presumptive period following separation from service or if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of osteoarthritis of the right great toe, as confirmed by a February 2016 X-ray. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within the one-year presumptive period following service, and was not noted in service with attributable continuity of symptomatology in the years since. VA treatment records show the Veteran was not diagnosed with osteoarthritis of the metatarsophalangeal of the right great toe until January 2016, 49 years after his separation from service and 48 years outside of the applicable presumptive period. As such, presumptive service connection for this foot disability, namely, for osteoarthritis of the right great toe, is not warranted. Despite this, service connection for osteoarthritis, and all other claimed foot disabilities not preexisting service, can still be established under the theory of direct service connection. Direct Service Connection - bilateral hallux valgus, bunion associated with right hallux valgus, osteoarthritis of the right great toe, and hammer toe of the right second toe status post amputation (“foot disability”) The preponderance of the evidence also is against any notion of entitlement to service connection on a direct-incurrence basis. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In January 2019, the Veteran underwent a VA foot examination. During this examination, the examiner was asked to review all possible foot disabilities in the medical evidence of record, including those that did not preexist the Veteran’s military service, and comment on them. The Veteran reported that he has limitations with walking more than 10 minutes, standing in one position more than 10 minutes, and running. He also reported that he uses arch supports and built-up shoes for both feet. But the January 2019 VA examiner found that none of the Veteran’s foot disabilities were as likely as not related to his military service. The January 2019 VA examiner explained that the Veteran’s foot disability is not at least as likely as not related to an in-service injury, event, or disease, including wearing and exercising in combat boots. Additionally, the January 2019 VA examiner opined that the Veteran’s foot disability is less likely than not caused by or aggravated by his asymptomatic congenital pes planus. The rationale was that the medical evidence of record does not show an onset of any foot disability while in service, including as being caused by or a result of or aggravated by the Veteran’s service. Additionally, the evidence of record does not support that any of his foot disabilities have been caused by or aggravated by his bilateral pes planus.   As a layman, the Veteran is not competent to make these critical determinations regarding causation and aggravation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). See also 38 C.F.R. § 3.159(a)(1) and (a)(2). Consequently, the Board gives more probative weight to the competent medical evidence. As such, entitlement to service connection for a foot disability even other than pes planus is not warranted on either a direct or presumptive basis. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K Pak, 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.