Citation Nr: 20021595 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-01 933 DATE: March 26, 2020 ORDER Entitlement to service connection for bilateral pes planus is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT The Veteran’s bilateral pes planus condition preexisted service and was not aggravated therein. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1995 to June 1995, from July 2007 to September 2007, and from January 2008 to February 2009. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified before the undersigned Veterans Law Judge by videoconference. A transcript of the hearing is of record. 1. Entitlement to service connection for bilateral pes planus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran seeks service connection for his bilateral pes planus. He contends that his periods of active service aggravated his pes planus. However, for the reasons noted below, the Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in active service and for in-service aggravation of a preexisting injury or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. See 38 U.S.C. § 1132; 38 C.F.R. § 3.304 (b). Cases in which the condition is noted on entrance, as here, are however, governed by the presumption of aggravation of a preexisting disability contained in 38 U.S.C. § 1153. This statute provides that 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 clear and unmistakable evidence shows 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. In such cases, the record must simply show by a preponderance of the evidence that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 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). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran’s January 1995 enlistment examination report shows that pes planus 2 -1/2 was noted upon entrance to his period of active service. It was noted to be asymptomatic and to not require orthotics. Pes planus did not cause problems with walking, running, or standing. On his May 2007 enlistment examination, moderate asymptomatic pes planus was noted. Therefore, the Veteran is not presumed sound upon entrance 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. However, the evidence shows there was no increase in the severity of the preexisting pes planus disability during service. The remaining service treatment records for his periods of active duty do not include any complaints or findings related to feet or pes planus. Thus, the competent and contemporaneous evidence does not demonstrate an increase in the Veteran’s preexisting pes planus disability in service. A September 2009 treatment record noted bilateral foot/ankle pain, undiagnosed. In June 2015 the Veteran was seen with compliant of feet pain. In July 2015 he was issued orthotics. An August 2015 treatment record noted that the Veteran was seen for right plantar fasciitis, right Achilles tendonitis, and right foot acquired equinus deformity. The Veteran contends that he aggravated his bilateral pes planus when he fell from a truck/trailer in Iraq in 2008. While the Veteran reported on an August 2009 post-deployment questionnaire that he had experienced loss of consciousness and fallen during his deployment, there are no contemporaneous records supporting an aggravation of his pes planus in such incident. Although the Veteran can report what he saw or experienced firsthand, he has not been shown to possess the education, training, and experience to offer medical opinions on complex matters such as the ability of determining the severity of pes planus, or to attest to the natural progression of it. Further, the clinical finding of pes planus at entrance (with no treatment noted during his periods of active service) weighs against his lay assertion that his condition worsened during service. Accordingly, his assertion is not competent or probative evidence that his pes planus was permanently aggravated in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As a whole, the Board finds that the medical evidence is more probative than the Veteran’s lay statement. In short, the competent and credible evidence of record does not reflect a permanent aggravation of the preexisting pes planus during his periods of active service. As the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved and service connection for pes planus is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a right ankle disability is remanded. The Veteran contends that he injured his back and right ankle in an incident in service in Iraq in 2008 when a blast caused him to fall from a “gooseneck” trailer attached to a truck. The Veteran reported on an August 2009 post-deployment questionnaire that he had experienced loss of consciousness and fallen during his deployment. Based on this, the Board will accept his general testimony regarding the fall in service. A January 2009 post- deployment examination noted that the Veteran denied muscle aches, back pain, and swollen/stiff joints. On the August 2009 post- deployment examination, the Veteran again did not report muscle aches, back pain, or swollen/stiff joints. A September 2009 reserves health readiness referral noted the Veteran had “evidence and symptoms of back condition, undiagnosed, and bilateral foot/ankle pain, undiagnosed.” A November 2009 lumbar spine MRI noted disc protrusion at L5-S1, without significant stenosis. In May 2010, while in the Reserves, the Veteran was issued a profile for ankle pain [did not specify which ankle] and back pain. A March 2012 lumbosacral spine X-ray noted minimal disc narrowing at L5-S1. The impression was minimal lower lumbar degenerative changes. The Veteran received chiropractic treatment for his back in 2013 and 2014. He has received Reserves profiles from 2010-2016 for back and ankle problems. The treatment records during the appeals period contain diagnoses of plantar fasciitis, right calcaneal spur, and gout. The Board finds that a VA examination is warranted to properly assess the Veteran’s claims. The matters are REMANDED for the following action: Schedule the Veteran for appropriate VA examination to determine the nature and etiology of any current lumbar spine/low back and right ankle disabilities. The entire record must be reviewed by the examiner and the Veteran should be asked to provide a complete medical history, if possible. Based on a review of the Veteran’s claims file, including a copy of this remand, and his statements regarding the claimed disabilities, the examiner is to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any low back/lumbar spine and/or right ankle spine disability had its onset during active service, to include the Veteran’s report of a fall from a trailer in Iraq in 2008. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to mere speculation, then the examiner should explain why this is so. 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.