Citation Nr: 20028084 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 17-09 527 DATE: April 22, 2020 ORDER Service connection for bilateral pes planus is granted. FINDING OF FACT 1. The Veteran has a current diagnosis of bilateral pes planus. 2. The pes planus preexisted service as it was noted upon service entrance. 3. The preexisting pes planus worsened beyond its natural progression during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 1131, 1132, 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from April 1986 to December 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision from the Regional Office (RO), which denied service connection for bilateral pes planus. Service connection for bilateral pes planus was previously before the Board in March 2019. In the March 2019 Board Decision, the Board denied service connection for bilateral pes planus. The Veteran appealed the matter to the Court of Appeals for Veterans’ Claims (Court). In a November 2019 Joint Motion for Remand (JMR), the parties agreed that a remand was warranted for the Board to provide adequate reasons and bases regarding whether the preexisting pes planus was aggravated during active service. The Board finds that the duties to notify and assist the appellant in this case have been rendered moot by the grant of service connection for bilateral pes planus, which is a full grant of the benefits sought on appeal. Service Connection for Bilateral Pes Planus The Veteran generally contends that service connection for bilateral pes planus is warranted. Specifically, the Veteran contends that, while bilateral pes planus was diagnosed at service entrance, prior to service entrance he had no history of pain or other symptoms of the feet. The Veteran contends that the boots he was provided for military duties combined with working 14-hour shifts on his feet as a cook caused him to develop pain and discomfort in his feet. The Veteran reports that, despite increased foot pain and discomfort during service, he did not seek treatment for his symptomatic feet during service or shortly after service due to fear of being placed on light duty or impeding his ability to become a state trooper after service separation. The Veteran reports that he first sought treatment for foot pain in 2010, when running on a treadmill became unbearable. See November 2014 Correspondence. Under the relevant laws and regulations, 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; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). 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 there is a specific finding 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; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 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. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. Id. The Board finds that the Veteran has a current disability of pes planus, as reflected in the February 2011 and January 2020 private treatment notes. The bilateral pes planus disability preexisted service and was “noted” upon service entrance. The January 1986 service entrance examination reflects that clinical evaluation of the feet was abnormal and the examining military physician noted that the Veteran had moderate, asymptomatic pes planus at the time of service entry. See January 1986 service treatment record. As the bilateral pes planus disability was noted at service entrance, the presumption of soundness at entry into active service does not attach. See 38 U.S.C. § 1111. Because the Veteran’s preexisting pes planus disability was noted at the time of entry into service, service connection for bilateral pes planus may be granted only if it is shown that the pes planus disability worsened in severity beyond its natural progression during service (i.e., was aggravated by service). 38 U.S.C. § 1153; 38 C.F.R. § 3.306. After review of all the lay and medical evidence of record, the Board finds that the evidence is in relative equipoise as to whether the preexisting bilateral pes planus was aggravated by (worsened during) service. Evidence weighing against in-service aggravation are the service treatment records and post-service treatment records that show no symptoms, clinical signs, or treatment for bilateral pes planus during service or for many years after service separation. Although moderate pes planus was noted at service entry, the military physician noted that the foot disorder was asymptomatic and that the Veteran was qualified to serve at service entrance. See January 1986 service treatment record. Service treatment records are silent for symptoms, objective findings, or treatment for the bilateral pes planus during service, as the feet were described as normal during a March 1988 examination for overseas duty and during the October 1993 service separation examination. The Veteran also reported no health problems and specifically denied swollen or painful joints and foot trouble at service separation. See March 1988, October 1993 service treatment records. Post-service treatment records reflect that the Veteran first sought treatment for foot pain in 2010, as he reported right heel pain for a month after running on a treadmill. During follow up appointments, the Veteran also reported a history of flat feet that had been managed with arch supports for years. The Veteran endorsed equal pain in both feet with prolonged standing, and reported that the symptoms were getting worse as he aged. See August 2010, December 2012, January 2013 private treatment records. Evidence weighing in favor of in-service aggravation by service include lay statements describing increase in symptoms in the feet during service and a positive medical opinion from an examining provider. Lay statements provided by the Veteran reflect that he was unaware of the preexisting pes planus prior to service entrance, as he had no symptoms of pain in the feet prior to service entrance despite leading an active lifestyle that included running track, playing baseball, and wrestling in high school prior to service entrance. The Veteran contends that he developed foot pain and discomfort during service due to ill-fitted boots and working 14-hour shifts on his feet as a cook. The Veteran’s spouse and a fellow service member asserted that they observed the Veteran with increased and excruciating foot pain following being on his feet for 14 to 16 hour shifts during service, and they observed the Veteran self-treat his symptoms by using over the counter shoe inserts and massaging the feet after work. See November 2014, Correspondence; August 2013 Statement in Support of the Claim. In January 2020, Dr. Stover examined the Veteran’s feet and diagnosed bilateral talipes planus. Dr. Stover considered the Veteran’s lay reports of having asymptomatic pes planus at service entrance that increased in terms of severity of symptoms of pes planus during service due to poor shoe gear and the conditions of working in the kitchen during service. Dr. Stover opined that it is definitely possible, and even likely that wearing poor shoe gear while standing and maneuvering in tight spaces on hard surfaces for 14-hour workdays as a cook during military service has driven the arches of the Veteran’s feet to fall further down. See January 2020 private treatment record. Based on the foregoing, the evidence is in relative equipoise as to the question of worsening of the preexisting pes planus during service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that there was worsening of the preexisting bilateral pes planus during service, there is no competent and credible evidence that the increase in disability is due to the natural progress of the disease, and the evidence in this case is not clear and unmistakable to show that no aggravation of the preexisting bilateral pes planus took place. For these reasons, the Board finds that the preexisting bilateral pes planus was aggravated by service, to warrant service connection for bilateral pes planus. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.