Citation Nr: 21000146 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-18 339 DATE: January 4, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. FINDING OF FACT 1. The Veteran’s pes planus was not noted at entry into service. 2. The probative evidence of record clearly and unmistakably establishes that the Veteran’s pes planus preexisted service, but was not permanently aggravated byond the natural progression during his period of active duty service. CONCLUSION OF LAW The criteria for service connection for pes planus are not met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Marine Corps from August 1965 to February 1966. In December 2019, the Veteran testified before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. Procedural history The Veteran’s claim was denied by the agency of original jurisdiction (AOJ) in an October 2016 rating decision. In that decision, the AOJ reopened the Veteran’s claim for pes planus noting a June 1976 rating decision, but continued to deny the claim for service connection. Regardless of the AOJ’s actions, the Board must make its own determination as to whether to reopen a claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In this case, the claim for service connection for pes planus was previously denied in June 1976. The Veteran did not appeal that decision. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The claim would be considered final. However, there are exceptions to this rule. One exception is that newly discovered service treatment records (STRs) can serve as a basis for providing an early effective date under 38 U.S.C. § 3.156 (c). That is, 38 C.F.R. § 3.156 (c)(1) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). Under 38 C.F.R. § 3.156 (c)(3), an award made based “all or in part” on additional service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. “In this sense, the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits maybe granted.” Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008). In this instance, the Veteran initially applied for service connection pes planus in January 1976. As above, a June 1976 rating decision denied the Veteran’s claim and he did not appeal of that decision. At the time of the rating decision, no STRs were associated with the Veteran’s file. Thereafter, in 2016, relevant STRs documenting his pes planus were associated with the file. Given that relevant STRs were associated with the file after the Veteran’s initial application for service connection for pes planus, the Board finds that the original claim is reconsidered. The merits of the claim are discussed below. Service Connection Entitlement to service connection for pes planus The Veteran contends that while he had pes planus prior to service, it was asymptomatic and his pes planus greatly worsened during service. In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A veteran is 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, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304 (b), and that “[h]istory 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)(1). If a disorder was not “noted” on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306 (2016); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that “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 and the claim is denied. 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. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s service treatment records include his July 1965 enlistment examination. His feet were evaluated as normal. As such, the Board finds that pes planus was not noted at entry and the presumption of soundness attaches. Accordingly, the burden has shifted to VA to rebut the presumption of soundness – specifically to determine whether there is clear and unmistakable evidence of both a preexisting disability and an in-service aggravation of that disability. Service treatment records further document that he entered service in August 1965, and that in November 1965, the Veteran appeared before a Medical Board. A specialist report documents that the Veteran experienced pain and numbness in his feet shortly after beginning his training while marching. He was fitted with arch supports but his pain increased so they were discontinued. Medical heel wedges were tried but also provided no benefit. Standing for any length of time, and marching for more than one half mile caused symptoms to recur. Specialist examination of the feet revealed severe planovalgus deformity. X-rays revealed the absence of the arches but no degenerative changes. A diagnosis of Pes Planus, Grade III, was rendered and it was determined that the Veteran did not meet the minimum standards for enlistment or induction and that he was unfit for further military duty. It was recommended that he be discharged, and such was accomplished, noting that the pes planus existed prior to entry and was not aggravated by service. The Board finds the service treatment records to demonstrate that the pes planus clearly and unmistakably preexisted service. The question then turns to whether it was clearly and unmistakably not aggravated beyond the normal progression by service. The Veteran attended a VA examination in September 2016, but this opinion addresses whether the Veteran sustained an injury causing pes planus during service, not whether service aggravated the Veteran’s pes planus. Thus, it is of little probative weight. An addendum opinion was obtained in December 2016. The clinician stated that the Veteran had bilateral symptomatic pes planus on enlistment. He was given arch supports, but they did not help, and in November 1965 he was diagnosed with symptomatic grade three pes planus. Overall, the Veteran’s service spanned seven months from 1965-1966. While, the rigors of basic and physical training aggravated the symptoms of his pes planus during service, it is unlikely that it aggravated it beyond natural progression, since his condition was severe at enlistment and his service was only for seven months. The Board finds this opinion to be of significant probative value. The Veteran entered service in August 1965, and by November 1965, just four months later, he had significant symptoms. As discussed above, 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. Notably, the Veteran testified that he was provided arch supports in service that caused pain and blisters, but after service, when the arch supports were gone, he no longer had foot pain or saw a doctor. This is further evidence against any aggravation beyond the natural progression of the preexisting disability. Thus, the Board finds that the Veteran has pes planus that clearly and unmistakably preexisted service, but that the pes planus was not clearly and unmistakably permanently worsened by service. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the claim is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.