Citation Nr: 21000615 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 12-05 394 DATE: January 5, 2021 ORDER Entitlement to service connection for bilateral pes planus is granted. FINDING OF FACT The Veteran’s bilateral pes planus preexisted service and increased in severity in service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 2004 to April 2006. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in September 2016. The hearing transcript is of record. The Board remanded the claim in December 2018 as consistent with a Joint Motion for Partial Remand (JMPR) at the United States Court of Appeals for Veterans Claims (Court). The Board remanded the claim again in August 2020 for further development by the RO. The case has been returned to the Board for further appellate action. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) the 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). It is well established that every veteran will be presumed 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. 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). Here, the Veteran’s July 2003 entrance examination noted mild, asymptomatic pes planus. Accordingly, it was noted that a pes planus condition existed prior to acceptance and enrollment for active military service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304. Therefore, the presumption of soundness does not apply in this case. 38 U.S.C. § 1111. Because a preexisting pes planus disability was noted upon entry into service, the Veteran’s claim cannot be considered one for in-service incurrence of that disorder; but rather, must be analyzed based on aggravation of a preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting disease or injury will be considered to have been aggravated by military 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 progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The record must contain some evidence demonstrating that the preexisting disability increased in severity during service for the presumption of aggravation to attach. See Wagner, supra; Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence. See Cotant v. Principi, 17 Vet. App. 116, 130 (2003); 38 C.F.R. § 3.306(b). Here, the Veteran contends that she began having problems with her feet in basic training. She stated that being constantly on her feet every day, as well as carrying and maneuvering heavy equipment, exacerbated her symptoms. She also stated that she went on sick call for her foot symptoms. See September 2016 Board hearing. The Veteran’s service treatment records (STRs) include an April 2004 note of pes planus. The Veteran’s February 2006 separation examination indicates normal feet. However, a December 2006 VA examination noted mild bilateral pes planus with residuals. The Veteran has provided credible and competent testimony regarding an increase in severity of her pes planus during service. Based on the first two elements of service connection being satisfied, the Board twice sought a competent medical opinion regarding whether the pes planus increased in severity beyond the natural progression of the disability during service. The Board finds that neither of these opinions adequately addresses the Veteran’s lay statements or the medical evidence of record. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, given the Veteran’s contentions and the evidence of record, as discussed above, the Board finds that the Veteran’s pes planus did increase during service. As such, this increase triggers the application of the presumption of aggravation. As it has not been rebutted by clear and unmistakable evidence that the increase was due to the natural progression of the disease, the Board finds that the Veteran’s preexisting bilateral pes planus was aggravated by service. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, Associate 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.