Citation Nr: 20022432 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 14-13 565 DATE: March 31, 2020 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for bilateral pes planus and bilateral valgus deformity is granted. Entitlement to service connection for bilateral plantar fasciitis and bilateral subtalar joint dislocation as secondary to bilateral pes planus by way of causation is granted. Entitlement to service connection for degenerative joint disease of the feet is granted. Entitlement to service connection for pseudofolliculitis barbae is granted. FINDINGS OF FACT 1. The weight of evidence shows that the current left knee disability is related to active service. 2. The weight of evidence shows that the current right knee disability is related to active service. 3. The evidence is in equipoise as to whether the bilateral pes planus and bilateral valgus deformity are not congenital or developmental defects. 4. Clear and unmistakable evidence establishes that the Veteran had bilateral pes planus and bilateral valgus deformity prior to his period of active duty. 5. The record does not show by clear and unmistakable evidence that the Veteran’s preexisting bilateral pes planus and bilateral valgus deformity were not aggravated during his period of active duty. 6. The evidence is in equipoise as to whether the bilateral plantar fasciitis and bilateral subtalar joint dislocation were caused by the now-service-connected bilateral pes planus. 7. The evidence is in equipoise as to whether the Veteran had degenerative arthritis of the feet in service and still has degenerative arthritis of the feet. 8. There is not clear and unmistakable evidence the Veteran had pseudofolliculitis barbae prior to his period of active duty. 9. The weight of evidence shows that the Veteran had pseudofolliculitis barbae in service and that he still has pseudofolliculitis barbae. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). 2. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for bilateral pes planus and bilateral valgus deformity have been met. 38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for bilateral plantar fasciitis and bilateral subtalar joint dislocation as secondary to bilateral pes planus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310 (2018). 5. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for degenerative joint disease of the feet have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2019). 6. The criteria for entitlement to service connection for pseudofolliculitis barbae have been met. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2008 to November 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) regional office (RO). In August 2019, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. At the hearing, the undersigned Veterans Law Judge agreed to hold the record open for 60 days. Hearing transcript, page 2. That 60-day period has expired. 38 C.F.R. § 20.709 (2019). A RO adjudicated an issue of entitlement to service connection for bilateral pes planus. Service treatment records and a December 2014 flatfoot (pes planus) disability benefits questionnaire reveal diagnoses of bilateral valgus deformity, bilateral plantar fasciitis, degenerative joint disease of the feet, and bilateral subtalar joint dislocation. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claim on appeal includes all foot disabilities. Service Connection 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for a right knee disability Governing law and regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis A December 2012 VA examination report reflects that the Veteran complained of right knee pain. The examiner did not diagnose a disability in either knee. VA treatment records reveal that in May 2019 X-rays of the knees showed mild prepatellar and infrapatellar patellar bursitis in the left knee and possible mild prepatellar tendon bursitis in the right knee. In June 2019, the impressions were right anterior knee pain and resolving right knee prepatellar and infrapatellar bursitis. In September 2019, a private chiropractor diagnosed bilateral patellar femoral syndrome with bursitis. Given the most recent diagnosis of a bilateral knee disability by the chiropractor, the weight of evidence shows that the Veteran has a current bilateral knee disability. Thus, Hickson element (1), current disability, is shown. The service treatment records show that in March 2009 the Veteran was treated for bilateral knee pain. In June 2009, the Veteran reported having right knee pain for a year. Patellofemoral syndrome was diagnosed. In August 2009, he complained of bilateral knee pain and patellofemoral syndrome was diagnosed. In January 2011, he again complained of bilateral knee pain. In March 2011, patellofemoral syndrome of the right knee was diagnosed. In August 2011, it was noted that the Veteran had had chronic right knee pain for the past two years. Hickson element (2), in-service disease or injury, is established. Turning to Hickson element (3), medical nexus, in a September 2019 statement the private chiropractor opined that the bilateral patellar femoral syndrome with bursitis began in active service because it is common for high-impact military requirements to cause this knee disability. There is no negative medical nexus opinion of record addressing the bilateral knee disabilities. Accordingly, Hickson element (3) is met. In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for left knee and right knee disabilities. The benefits sought on appeal are accordingly allowed. 3. Entitlement to service connection for bilateral pes planus and bilateral valgus deformity Governing law and regulations 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. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). “Clear and unmistakable evidence” is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the “clear and convincing” burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of “clear and unmistakable evidence”). It is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA’s General Counsel has held that 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. The 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 VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on “thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof.” 38 C.F.R. § 3.304(b)(1). 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. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Service connection cannot be granted for congenital or developmental defect, but service connection can be granted for a superimposed disease or injury. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (July 18, 1990). Analysis The medical evidence shows diagnoses of bilateral pes planus and bilateral valgus deformity. The service treatment records reveal that in April 2009 the pes planus was described as a congenital foot deformity. December 2012 VA X-rays noted that the Veteran had a history of congenital flat foot in the past. The December 2012 VA examiner diagnosed congenital pes planus. In September 2019, the private chiropractor diagnosed congenital pes planus. An April 2019 private treatment record reveals that the bilateral valgus deformity is congenital in nature. Neither the December 2012 VA examiner nor the September 2019 private chiropractor specifically stated that the bilateral pes planus is a congenital or developmental defect as opposed to a congenital or developmental disease. Similarly, the military doctor did not state that the pes planus was a defect and the April 2019 private podiatrist did not state that the valgus deformity was a defect. The doctor who completed the December 2014 disability benefits questionnaire noted that the onset of the flat feet and valgus deformity happened over a period of many years. In light of the above, the evidence is in equipoise as to whether the bilateral pes planus and bilateral valgus deformity are not congenital or developmental defects. Thus, Hickson element (1), current disability, is satisfied. At the April 2007 entrance examination, pes planus and valgus deformity were not diagnosed and the arches were normal on physical examination. Thus, the bilateral pes planus and bilateral valgus deformity were not noted on entrance into service and the Veteran is entitled to the presumption of soundness as to the bilateral pes planus and bilateral valgus deformity. The next matter is whether there is clear and unmistakable evidence that the Veteran’s bilateral pes planus and bilateral valgus deformity preexisted his active service. Medical providers have described the pes planus and valgus deformity as being congenital in nature. Thus, there is clear and unmistakable evidence that the Veteran had bilateral pes planus and bilateral valgus deformity on entrance. The crux of this case thus revolves around whether there is clear and unmistakable evidence that the Veteran’s bilateral pes planus and bilateral valgus deformity were not aggravated during service. Service treatment records reveal that in April 2009 he had had bilateral foot pain for six months. In September 2012, a doctor noted that the Veteran could not run for the next month due to painful pes planus. The December 2012 VA examiner stated that there is no evidence that military service aggravated in any measurable way the natural progression of his pes planus. The doctor who completed the December 2014 disability benefits questionnaire noted that the onset of the flat feet and valgus deformity happened over a period of many years and that these disabilities were aggravated in the long term by standing and walking in the military. The September 2019 private chiropractor stated that it is common that high-impact military requirements would cause congenital pes planus to worsen beyond the normal progression. Given the evidence of aggravation in service, the Board reaches the conclusion that the record, viewed as a whole, does not show by clear and unmistakable evidence that the Veteran’s preexisting bilateral pes planus and bilateral valgus deformity were not aggravated during service. Thus, Hickson elements (2) and (3), in-service aggravation and medical nexus between the current bilateral pes planus and bilateral valgus deformity and the in-service aggravation of these two disabilities, are satisfied. In short, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for bilateral pes planus and bilateral valgus deformity. The benefits sought on appeal are accordingly allowed. 4. Entitlement to service connection for plantar fasciitis and subtalar joint dislocation Governing law and regulations A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis The December 2014 disability benefits questionnaire and the September 2019 statement from the private chiropractor reveal a diagnosis of bilateral plantar fasciitis. The December 2014 disability benefits questionnaire shows a diagnosis of subtalar joint dislocation. Thus, Wallin element (1), a current disability is shown. The Board is granting service connection for bilateral pes planus. Therefore, Wallin element (2), service-connected disability, is established. Turning to Wallin element (3), medical nexus, the doctor who completed the December 2014 disability benefits questionnaire stated that the plantar fasciitis and subtalar joint dislocation pertain to the bilateral pes planus. The September 2019 private chiropractor stated that the plantar fasciitis was secondary to the pes planus. As these medical professionals did not state that the plantar fasciitis and subtalar joint dislocation were aggravated by the pes planus, the evidence is in equipoise as to whether the plantar fasciitis and subtalar joint dislocation were caused by the now-service-connected bilateral pes planus. Therefore, service connection for bilateral plantar fasciitis and bilateral subtalar joint dislocation as secondary to service-connected bilateral pes planus by means of causation is in order. 38 U.S.C. §§ 1110, 5107. In light of the grant of service connection, the Board does not have to address whether the plantar fasciitis and subtalar joint dislocation were incurred in service. The benefit sought on appeal is accordingly allowed. 5. Entitlement to service connection for degenerative joint disease of the feet Governing law and regulations Arthritis is a chronic disease. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. § 3.309. With chronic diseases shown as such in service as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributed to intercurrent causes. 38 C.F.R. §§ 3.303 (b). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. To show a 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a veteran’s claim. C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a veteran had a chronic disease in service and still has that condition. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis There is conflicting medical evidence on whether the Veteran has degenerative arthritis of the feet. Service treatment records show that January 2011 X-rays of the feet showed bilateral spurring at the first metatarsals, medial cuneiforms, and naviculars. The impression was degenerative joint disease. Celebrex was prescribed for degenerative arthritis pain. December 2012 VA X-rays of the right foot showed no appreciable degenerative arthritic spurring. The report, however, notes that the X-rays were not performed in a standing view and that X-rays should be repeated with a lateral standing view. The impression was an incomplete exam. A repeat exam with a lateral weight-bearing view was recommended. The December 2014 disability benefits questionnaire shows that imaging studies of the foot have been performed and the results are available. Degenerative or traumatic arthritis was not documented. The doctor who prepared the questionnaire did not note which X-rays he was referencing. January 2016 private X-rays of the left foot were normal. In the September 2019 statement, the private chiropractor noted the findings in the service treatment records regarding arthritis and stated that the foot disability began in service. Given the specificity of the in-service X-ray report regarding both feet and the incompleteness of the December 2012 VA X-rays of the right foot, the evidence is in equipoise as to whether the Veteran had degenerative arthritis of the feet in service and still has degenerative arthritis of the feet. Therefore, service connection for degenerative joint disease of the feet is warranted under the chronicity provision of 38 C.F.R. § 3.303(b). 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. The benefit sought on appeal is accordingly allowed. 6. Entitlement to service connection for pseudofolliculitis barbae Governing law and regulations Service connection can be granted for a familial disease that was initially manifested itself in service or was aggravated by service. In other words, service connection cannot be denied merely on the basis that a veteran has the genetic trait for the disease. See VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 82-90 (July 18, 1990). For diseases that are congenital, developmental, or familial in origin, VA adjudicators ordinarily are justified in finding that such disease, by its very nature, preexisted a Veterans’ military service. Typically, entitlement to service connection in these cases should turn on the question of whether manifestations of the disease in service constituted aggravation of the disease. This question must be resolved by applying the same stringent legal standards that are applicable in cases involving acquired diseases. VAOPGCPREC 82-90 (July 18, 1990). Subsequent to these VA General Counsel opinions, the General Counsel issued its opinion on the presumption of soundness, which is discussed above in the analysis of the claim of service connection for bilateral pes planus and bilateral valgus deformity. Analysis The December 2012 VA examination report reveals a diagnosis of pseudofolliculitis barbae. Thus, Hickson element (1), current disability, is shown. The December 2012 VA examiner noted that the pseudofolliculitis barbae is a hereditary disease based on his genetic makeup. At the April 2007 entrance examination, the Veteran denied any history of skin disease. The face and skin were normal on examination. Therefore, the Veteran is entitled to the presumption of soundness as to pseudofolliculitis barbae. The Veteran has a hereditary disease based on his genetic makeup, but the question is whether he actually had the disease prior to active service as opposed to merely a genetic predisposition to develop the disease. Though the VA examiner noted that there was no evidence that military service aggravated in any measurable way the natural progression of the disease, there is no medical evidence showing a diagnosis of pseudofolliculitis barbae was made by a medical professional prior to active service. Similarly, there are no treatment records showing that he had any manifestations of pseudofolliculitis barbae prior to active service. The examiner instead merely suggests that the Veteran had to have pseudofolliculitis barbae prior to service because the disease is a hereditary disease based on his genetic makeup. Moreover, the examiner described the disease as being hereditary in nature as opposed to being congenital in nature. The service treatment records are the first evidence of treatment for pseudofolliculitis barbae. Given the lack of evidence of a diagnosis or treatment of pseudofolliculitis barbae by a medical professional prior to active service, the Board reaches the conclusion that the record, viewed as a whole, does not show by clear and unmistakable evidence that the Veteran had pseudofolliculitis barbae prior to his period of active duty. The next matter is whether the pseudofolliculitis barbae was incurred in active service. The Veteran was treated for pseudofolliculitis barbae in service, and the VA examination report reveals that he still has the disease. The weight of evidence shows that the Veteran had pseudofolliculitis barbae in service and that he still has pseudofolliculitis barbae. Therefore, service connection for pseudofolliculitis barbae is warranted. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304. The benefit sought on appeal is accordingly allowed. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.