Citation Nr: 20022535 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 15-17 552 DATE: April 1, 2020 ORDER Entitlement to service connection for bilateral pes planus is denied. FINDING OF FACT The record evidence shows that the Veteran’s bilateral pes planus is not related etiologically to active service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from July 1977 to May 1982. The appeal originates from an August 2014 decision of a Department of Veterans Affairs (VA) Regional Office. The matter was remanded initially in June 2018 for an examination with opinion. As discussed below, the opinion obtained in December 2018 (with a January 2019 addendum) was inadequate. The matter was remanded again in May 2019 for additional development. The Board directed that the Veteran identify and authorize VA to obtain private treatment records. A new examination with opinion also was requested. In June 2019 correspondence, the Veteran indicated that no such private treatment records exist. An examination with opinion was obtained in August 2019. Thus, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the prior Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). In May 2011, VA personnel concluded in a formal memorandum to the file that the Veteran’s complete service treatment records were not available for review. In cases where the Veteran's service treatment records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). Having reviewed the record evidence, the Board finds that it is reasonably certain that all available service treatment records have been obtained and further efforts to obtain additional service treatment records would be futile. 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 by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of service connection for bilateral pes planus. The Veteran contends that he developed a bilateral foot disorder from his in-service physical duties, including marching and running. The August 2019 VA examination report indicates a diagnosis of bilateral pes planus. Element (1) of Shedden is met. Id. As noted above, the Veteran’s complete service treatment records, including his entrance examination, are unavailable. The available service treatment records are silent with respect to complaints, treatment, or diagnosis of a bilateral foot disorder. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The Veteran reports experiencing in-service foot pain due to his physical duties, however. As discussed in detail below, he is not a credible historian of his symptomology; therefore, his reporting of in-service symptoms is afforded no weight. Given that there is no other evidence of an in-service injury or disease, element (2) of Shedden is not conceded. Id. Regarding a medical nexus or Shedden element (3), the August 2019 VA examiner opined that bilateral pes planus is less likely as not related to service. This examiner noted that service treatment records are silent for pes planus or related foot problems. This examiner also explained that medical treatment records, including podiatric evaluation, fail to show continuous, ongoing, chronic foot problems proximate to separation and chronic symptoms were not shown objectively until recent years. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Consideration is given to lay statements from the Veteran describing continuous foot pain since service, including his report of being treated by a doctor shortly after separation. His mother also submitted statements in November 2011 and June 2014 to similar effect. The record contains years of VA treatment records which cast doubt on this reporting, however. See April 2015 Medical Treatment Record. For example, the Veteran was seen for an initial visit at VA primary care in September 2010. He reported numerous health concerns, including back pain which he linked to service, but had no foot complaints. He reported being very physically active and powerwalking two to three miles a day around six to seven days per week. Evaluation of the lower extremities was normal. He was followed in primary care across many VA outpatient treatment visits throughout 2011, 2012, 2013, and early 2014 with no foot complaints. The Veteran also began receiving pain management consultations in 2012. In December 2012, he reported back pain but specifically denied any other painful areas of the body. He received further consultations in 2013 and early 2014 and continued to deny experiencing pain in areas other than the back. He did not seek treatment for foot pain until 2015, which is confirmed by a note from his primary care provider identifying the onset of symptoms requiring treatment in 2015. See April 2017 CAPRI; July 2017 Medical Treatment Record. Having reviewed the record evidence, the Board finds that the lay statements of record describing the Veteran’s alleged longstanding bilateral foot symptoms are not credible. The lay evidence itself is contradicted by the Veteran’s own reporting when seeking medical treatment for many years and are offered decades after service. The Board notes that he has impairment of long-term memory due to his service-connected psychiatric disability (as noted on VA examination in November 2017) which weighs against his recollection of decades-old symptom history as well. The Board affords greater weight to contemporaneous evidence, which tends to show that chronic foot symptoms developed many years after service, than the lay evidence of record. The Board acknowledges the December 2018 VA opinion and January 2019 addendum concerning the contended etiological relationship between bilateral pes planus and active service. The December 2018 VA examiner’s opinion opines that bilateral pes planus is related to service but provides a negative rationale. The December 2018 VA examiner reversed this finding in an addendum in January 2019, opining that bilateral pes planus is not related to service. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Given their internal inconsistencies, the Board affords the December 2018 and January 2019 VA examiner’s opinions no probative weight. The Board also has considered numerous arguments presented by the Veteran. He contended in a September 2019 Appellate Brief that his bilateral pes planus existed prior to service and was aggravated by service. As previously discussed, the available service treatment records are silent regarding the feet (although the Board again acknowledges that it is not necessarily fatal to his claim). There is no objective evidence of foot problems for decades after service. And the lay evidence is not credible as to the Veteran’s alleged historical foot symptoms. In other words, the Board finds that there is not nearly clear and unmistakable evidence which is necessary to rebut the presumption of soundness. The Veteran next challenges the adequacy of the August 2019 VA examination, contending that he was not treated as a credible witness by the examiner who conducted this examination. See August 2019 Correspondence. It is true that the May 2018 Remand directed the prior examiner to accept the Veteran as a credible historian. The Board finds this Remand instruction puzzling at best, and contradictory to the record evidence at worst, because the Veteran is not a credible historian (as discussed above) and should not be accepted as a credible historian by any VA clinician. The Board notes that no justification was offered for this Remand instruction. To the contrary, the previous discussion establishes that the Veteran is not a credible historian of his symptomology. Therefore, the Board finds that the August 2019 VA examiner did not err in not accepting the Veteran’s reported medical history because he is an unreliable historian. The Veteran next contends that the August 2019 VA examiner is not a foot specialist and made incorrect findings pertaining to specific symptoms such as flareups, tenderness on palpation, and functional impact. Contrary to the Veteran’s assertions, the Board notes that the August 2019 VA examiner, a physician, performed a detailed examination, diagnosed a bilateral foot disorder, and provided a nexus opinion. With respect to the specific symptoms challenged by the Veteran in his argument on appeal, the Board notes that he did not explain how the claimed severity of his bilateral foot disorder bears on the question of a nexus to service. The Veteran also asserts that the August 2019 VA examiner misunderstood the meanings of incurred, caused, and aggravated. The Board notes that a review of the August 2019 VA examiner’s opinion shows no such confusion as alleged by the Veteran. This examiner distinguished between a theory of aggravation of a preexisting disorder, incurrence, and causation, and provided a reasoned medical explanation for the negative nexus opinion. All of these opinions were fully supported. See Stefl, 21 Vet. App. at 124. The Veteran also references a July 2019 VA podiatry treatment record in support of his claim. See September 2019 Correspondence. That treatment record contains his statement that foot pain started from walking in active service and that he was told he had flat feet at entry to service. These contentions have been considered and found not to be credible. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for bilateral pes planus. In summary, the Board finds that service connection for bilateral pes planus is not warranted. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alhinnawi 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.