Citation Nr: A20000037 Decision Date: 01/02/20 Archive Date: 01/02/20 DOCKET NO. 190517-5635 DATE: January 2, 2020 ORDER Service connection for pes planus of the left foot is granted. Service connection for pes planus of the right foot is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, pes planus of the left foot clearly and unmistakably existed prior to active duty service and was aggravated by service. 2. Resolving all doubt in the Veteran’s favor, pes planus of the right foot clearly and unmistakably existed prior to active duty service and was aggravated by service. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus of the left foot have been met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.306. 2. The criteria for service connection for pes planus of the right foot have been met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 21, 1978, to April 19, 1978. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program “RAMP”, the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. The Veteran opted in to RAMP on July 6, 2018, and selected the Higher-Level Review lane. In September 2018, the agency of original jurisdiction (AOJ) issued its Higher-Level Review with respect to the claim for service connection for pes planus (claimed as bilateral pes planus), considering the evidence of record as of the date VA received the RAMP election form. In response to the unfavorable September 2018 higher-level review, on February 19, 2019, the Veteran submitted a RAMP election form and requested Higher-Level Review of the September 2018 higher-level review decision. However, the regulations state that the Veteran is not able to request Higher-Level Review of a higher-level review decision (see 38 C.F.R. § 3.2500), therefore, this request is invalid. However, the Veteran then submitted a VA Form 10182 received on May 17, 2019, requesting a Board appeal of the denial of service connection for pes planus, listing the decision on appeal as October 2017. Although the Veteran listed the October 2017 pre-implementation date rating decision, it appears that it was the Veteran’s intent to request review of the September 2018 RAMP higher-level review rating decision for pes planus, which is a valid appeal pursuant to the AMA. 1. Entitlement to service connection for pes planus of the left foot 2. Entitlement to service connection for pes planus of the right foot The Veteran contends that his pre-existing pes planus was asymptomatic at his enlistment examination, but the rigors of training aggravated his bilateral pes planus despite the short length of his service. See VA Form 9, received in March 2018. The Veteran’s service treatment records (STRs) show he reported asymptomatic pes planus of the feet at his November 1977 enlistment examination. The examiner indicated that the feet were fully flexible with no evidence of rigidity and that pes planus was not considered disqualifying. In March 1978, the Veteran was referred for a podiatry consultation for flat feet associated with pain. He was assessed with symptomatic severe flat feet, which was not amenable to treatment. In April 1978, the Veteran underwent a Medical Board evaluation in conjunction with a Medical Board Proceeding. The Veteran reported the he was unable to continue prolonged periods of marching, running, jumping, or standing without severe pain in both feet. X-rays revealed pronation of both feet. The Veteran was assessed with symptomatic, congenital pronation of both feet not amenable to treatment. The examiner determined that the Veteran was unfit for enlistment and should be separated from service. On a report of medical history form prepared in conjunction with the examination, the Veteran reported that his “feet hurt with standing or walking for long periods of time. I have flat feet.” The Veteran was afforded a VA foot examination in February 2017. The Veteran indicated that he remembers having pes planus since he was a teenager with occasional foot pain. The Veteran reported that he hit his left foot on a tree in 1978 in Fort Dix. The examiner indicated that there was no treatment for a left foot injury, but the Veteran was ultimately discharged from service for painful congenital pes planus. The Veteran reported chronic and progressive painful pes planus, left greater than right foot, for decades. The Veteran underwent a surgical procedure of the left foot for pes planus in April 2007. The Veteran reported severe left foot pain and mild right foot pain. Following a clinical evaluation, the examiner diagnosed the Veteran with pes planus and indicated that the condition was diagnosed in 1970. The examiner opined that pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner’s rationale was that the Veteran has congenital severe pes planus that started when he was a child and has naturally progressed since. The examiner also noted the Veteran was in service less than a year and that STRs indicate that he reported bilateral foot pain due to severe pes planus. The examiner indicated that there is no evidence, such as a significant traumatic event, that the Veteran’s feet were aggravated beyond its natural progression by the limited time period in service. He opined that in the forty years since discharge, the pes planus has continued to progress unrelated to anything that occurred in service. The examiner concluded that the Veteran’s bilateral flat feet, which clearly and unmistakably existed prior to service, were not aggravated beyond the natural progression by multiple complaints and treatment for flat feet, which eventually led to his discharge from service. Private treatment reports from D. Moats, D.P.M., dated in May 2018 reveal active problems including congenital pes planus of the left and right foot, pain in the left and right foot, and plantar fascial fibromatosis. Dr. Moats indicated that the Veteran’s conditions are caused by his military duty. The Veteran reported that he had flat feet when he joined the military, which was noted by the examining officers at his entrance into service. Dr. Moats opined that it is more likely than not that the Veteran’s pes planus was aggravated beyond the normal progression while in service. Specifically, he found that rigorous training and marching in combat boots had significantly contributed to the aggravation of the Veteran’s condition. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran who served in the active military, naval, or air service after December 31, 1946, is 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 disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1132. Only those conditions recorded in examination reports can be considered as noted and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b). Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion or a later medical opinion based upon statements made by the veteran about the pre-service history of the condition. Miller v. West, 11 Vet. App. 345 (1998); Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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 C.F.R. § 3.306(a). 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. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition 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). In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is entitled to service connection for pes planus of the left and right foot. Here, the Board finds the competent medical evidence of record supports a finding that the Veteran’s pes planus of the left and right foot clearly and unmistakably pre-existed service and underwent an increase in severity during service. The STRs reflect that the Veteran’s bilateral flat feet were asymptomatic at his entrance to service. However, during service he developed painful feet and was discharged with a diagnosis of symptomatic flat feet. As such, the Board finds the evidence reveals that the pre-existing bilateral pes planus underwent an increase in severity during service. If a pre-existing disability undergoes a permanent increase in severity during service, that increase is presumed to be aggravation unless there is a showing that it represented only the natural progression of the disability. Consequently, the remaining issue is whether the increase in disability clearly and unmistakably was not aggravated by service beyond the natural progress of the disease. Here, the Board acknowledges that the VA medical opinion provides evidence against the claim. However, the private clinician concluded that the Veteran’s bilateral pes planus was aggravated during his active duty service. In this case, resolving reasonable doubt in favor of the Veteran, the Board finds that his bilateral pes planus, which clearly and unmistakably pre-existed service and, due to service, underwent a permanent increase in severity beyond the natural progression of the disease. As a result, service connection for pes planus of the left foot and right foot is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.