Citation Nr: 21001018 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-17 180 DATE: January 6, 2021 ORDER Entitlement to service connection for a right shoulder condition is denied. Entitlement to service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. The competent medical evidence does not demonstrate that the Veteran’s right shoulder condition was incurred in service or is otherwise attributable to his service. 2. The evidence clearly and unmistakably shows that the Veteran’s pre-existing bilateral pes planus was not aggravated by in-service injury or as a result of any incident in service. CONCLUSIONS OF LAW 1. Service connection for a right shoulder condition is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1990 to March 1997, with additional service in the Naval Air Reserves thereafter. This matter was before the Board in September 2019, following a May 2019 hearing, whereupon the Board denied entitlement to service-connection for a right shoulder condition. Following the Veteran’s appeal of these denials, the U.S. Court of Appeals for Veterans Claims (Court) in September 2020 issued a Joint Memorandum Decision (JMR) in which the Court vacated the Board’s May 2019 decision as it pertained to the denial of service connection for a right shoulder condition and remanded the matter back to the Board. The Board in its September 2019 decision also remanded the claim for service connection for bilateral pes planus to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a July 2020 supplemental statement of the case continuing the denial of service connection, this matter was returned to the Board for its adjudication, where it was merged with the right shoulder condition claim that had been returned from the Court. Entitlement to Service Connection for a Right Shoulder Condition The Veteran contends that he injured his right shoulder in service and that his currently diagnosed right shoulder condition developed as a result of this injury and has continued to the present. In the alternative, he asserts that his right shoulder condition is nevertheless attributable to the in-service right shoulder injury. The question for the Board is whether the Veteran has a diagnosable right shoulder condition that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran is currently diagnosed with a right shoulder condition, the preponderance of the evidence is against a finding that the condition began during active service, or is otherwise related to an in-service injury, event, or disease, to include on an aggravation basis. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records reflects that he sought treatment for right shoulder pain in September 1993 following an incident in which he contended that he was thrown to the ground during an altercation with military police. A radiographic examination of the right shoulder was negative for any abnormalities. After an in-person evaluation, the impression was a musculoskeletal strain, and the Veteran was prescribed pain medication. Although he was instructed to seek follow-up care as needed, no subsequent records show that the Veteran received any further treatment for his right shoulder as specifically related to the incident in September 1993. Thereafter, a June 1995 outpatient record indicates that the Veteran once again sought treatment for right shoulder pain after he was the victim of a robbery attempt. After a physical examination, the impression was a soft-tissue injury. There are no subsequent records which reflect that the Veteran received any additional treatment for his right shoulder pain in service. Notably, following the September 1993 incident, no abnormalities related to the upper extremities were detailed on the April 1995 discharge examination, and the Veteran did not report any history of right shoulder pain on the corresponding April 1995 Report of Medical History. Similarly, following the June 1995 incident, no abnormalities related to the upper extremities were detailed on the February 1997 discharge examination, and the Veteran did not report any history of right shoulder pain on the corresponding February 1997 Report of Medical History. A review of available post-service medical records does not show that the Veteran has ever been formally diagnosed with a right shoulder condition. Of note, the Veteran was evaluated on a regular basis as part of his duties in the Air Reserves, and on none of these periodic health assessments did he ever report a history of experiencing right shoulder pain. VA medical records do not show any complaints of right shoulder pain prior to an April 2016 outpatient records which reflects that the Veteran reported a history of experiencing chronic right shoulder pain. The Veteran did not specify during this encounter when the pain began or if he believed it to have originated in service. No diagnosis was set forth, and there are no further VA records which show any treatment for symptoms of a right shoulder condition. The Veteran was afforded a VA shoulder examination in March 2016, during which he detailed his history of being the victim of a robbery attempt while in service that resulted in a right shoulder injury. According to the Veteran, he experienced intermittent pain in the right shoulder, especially with strenuous activity. He also stated that he could not lift his right arm above shoulder level due to severe pain. After a physical evaluation and a radiographic examination, the examiner set forth a diagnosis of right shoulder strain. The examiner then opined that it was less likely than not that the right shoulder strain was incurred or otherwise attributable to service. In support thereof, the examiner noted the lack of in-service treatment following both in-service incidents which prompted the Veteran to seek care for his right shoulder symptomatology. The examiner especially highlighted the fact that the Veteran did not report any history of right shoulder pain on both the April 1995 and February 1997 Reports of Medical History. Finally, the examiner reviewed post-service medical reports on which the Veteran consistently denied experiencing any right shoulder pain. This opinion is highly probative, as it is based on a thorough review of the claims file and a reference to the Veteran’s documented medical history. Sklar v. Brown, 5 Vet. App. 140 (1993). During the May 2019 hearing, the Veteran stated that his right shoulder was injured on two occasions in service, first in 1993 during an altercation with base police and again in 1995 when he was the victim of a car robbery. According to the Veteran he had not experienced pain in his right shoulder prior to these two in-service incidents. It was his contention that the shoulder pain began with these two incidents and was worsened by continued physical activity required by the rest of his service and after service when he worked in the Naval Air Reserve. He further stated that he did not report experiencing these symptoms of right shoulder pain during his time in the Naval Air Reserve out of concern that he would be placed on limited duty if he was identified as being physically incapable of performing his duties. The Board acknowledges that the Veteran has asserted, notably during his hearing, that his right shoulder condition began in service and has continued since then. The Veteran is competent to testify as to when his symptoms began. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the fact that the claims file does not contain a diagnosis of a right shoulder condition until the March 2016 VA examination, nearly 20 years after the Veteran was discharged from service, is persuasive evidence tending to demonstrate that there is no continuity of symptomatology after service. Of course, the Board takes into consideration the Veteran’s assertion that he failed to report his right shoulder symptomatology after his discharge despite being evaluated medically on several occasions through is service with the Naval Air Reserve out of concern for his employment. This explanation does not detract, however, from the fact that the Veteran has provided no objective medical evidence in support of his assertion that his right shoulder condition began in service and has continued since his discharge. Indeed, the Veteran has provided no explanation as to why there is no record of his having sought treatment for right shoulder symptomatology outside of his service with the Naval Air Reserve or in the time after he ceased his work with the Naval Air Reserve. Ultimately, the absence of objective medical evidence documenting any treatment for or a diagnosis of a right shoulder condition prior to March 2016 coupled with the probative March 2016 VA examiner’s opinion far outweighs the Veteran’s assertion that his right shoulder condition began in service and that his symptoms have continued since his discharge from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As such, the preponderance of the evidence is against the claim of service connection for a right shoulder condition on either a direct basis under 38 C.F.R. § 3.303(a) or based on continuity of symptomatology under 38 C.F.R. § 3.303(b). The Veteran may still be entitled to service connection for a right shoulder condition if all of the evidence establishes that the condition is otherwise attributable to an in-service occurrence. 38 C.F.R. § 3.303(d). As stated above, however, the Veteran has presented no objective medical evidence to support a determination that the right shoulder condition is attributable to an in-service injury or event, to include the two incidents during which he contends his right shoulder was injured. Moreover, the highly probative March 2016 examiner’s opinion refutes this assertion, and that opinion is supported by the weight of the evidence which shows that the Veteran was never evaluated as having a right shoulder condition in service and continually denied experiencing right shoulder pain until 2016. Furthermore, the Board notes that there is no evidence in the record showing that the Veteran has the medical training, credentials, or other expertise to competently conclude that his right shoulder condition is attributable to service. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). Ultimately, the Board finds that the March 2016 VA examiner’s opinion substantially outweighs the lay evidence of record, including the hearing testimony described above, in light of the rationale presented and the absence of training or credentials on the part of the Veteran. Therefore, the preponderance of the evidence is against the claim for service connection for a right shoulder condition, the benefit-of-the-doubt standard of proof does not apply, and the claim is denied. 38 U.S.C. § 5107(b). Entitlement to Service Connection for Bilateral Pes Planus The Veteran contends that his diagnosed bilateral pes planus, which preexisted his entrance into service, was nevertheless aggravated permanently by his service, and therefore he is entitled to service connection for the condition. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. Clear and unmistakable evidence” is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA’s General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, bilateral pes planus was noted upon entrance into service on the February 1990 entrance examination, and so the Board must conclude that the condition clearly and unmistakably preexisted service. Accordingly, the Board finds that the first element of the presumption of soundness has been rebutted; the next query is whether the preexisting bilateral pes planus clearly and unmistakably was not aggravated permanently by the Veteran’s service. To that end, the Board notes that a preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Mere “temporary or intermittent flare-ups” of a preexisting condition are generally insufficient to show that in-service worsening has occurred. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). However, the degree of in-service worsening need not be so great as to warrant compensation in order for the presumption of aggravation to attach. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Notably, once the presumption of aggravation does attach, the government bears the burden of showing, by clear and unmistakable evidence, “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; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004). A review of available service treatment records reflects that the Veteran sought treatment for left foot pain in May 1990 after he landed wrong on his left heel while playing basketball. A May 1990 X-ray examination revealed no abnormalities in the left foot other than mild flattening of the plantar arch. The impression was a soft tissue injury, and a review of subsequent records does not show that the Veteran received any follow-up care for symptomatology stemming from this injury. Indeed, there is no further documentation of complaints of or treatment for foot pain symptomatology for the rest of the Veteran’s service. The February 1997 discharge examination did not note any foot abnormalities, and the Veteran also did not report any history of foot pain on the February 1997 Report of Medical History. The Board also notes that a September 1999 examination undertaken as part of the Veteran’s duties in the Naval Air Reserves also did not document any foot abnormalities, and the Veteran similarly did not report any history of foot pain on the September 1999 Report of Medical History. The Veteran was afforded a VA examination to evaluate the nature and likely etiology of the pes planus in March 2016, whereupon he detailed that he was told that he had bilateral pes planus upon entrance into service, but he did not experience pain in his feet until he began service. According to the Veteran, an X-ray examination of his feet in service was negative for any condition. After an in-person evaluation, the examiner confirmed a diagnosis of bilateral pes planus, and then opined that it was less likely than not that the condition was incurred in or otherwise attributable to service. In support thereof, the examiner noted that the pes planus was diagnosed upon the Veteran’s entrance into service and further noted that there was no evidence of aggravation during service. The examiner highlighted the Veteran’s denial of foot symptomatology on various periodic self-assessments as well as the lack of treatment records both during service and immediately preceding service. In summation, the examiner stated that the Veteran’s current foot pain was consistent with the natural progression of his pes planus. The March 2016 examination is probative, as the examiner supported her opinion with a thorough rationale that took into consideration the Veteran’s medical history and referenced his lack of in-service treatment for symptomatology of bilateral pes planus. Sklar v. Brown, 5 Vet. App. 140 (1993). That being said, the Board in September 2019 nevertheless concluded that it could not rely on this examination solely in rebutting the presumption of soundness as the March 2016 examiner did not set forth her opinion to the “clear and unmistakable” standard as is required for such a rebuttal. Accordingly, pursuant to the Board’s September 2019 remand instructions, the Veteran’s claims file was returned to the March 2016 examiner in December 2019 in order to elicit an addendum opinion from her as to whether the bilateral pes planus “clearly and unmistakably” preexisted service. After reviewing the claims file and the Board’s remand instructions, the VA examiner reaffirmed her previous opinion that the Veteran had preexisting bilateral pes planus that was not aggravated during service, and set both portions of this opinion to the “clear and unmistakable” standard as requested by the Board. In support thereof, the examiner noted that the Veteran had documented bilateral pes planus on his February 1990 entrance examination. As for the in-service treatment for foot symptomatology, the examiner highlighted that there was only instance of treatment for foot pain which followed an injury in May 1990 when the Veteran landed wrong on his heel while playing basketball. The examiner detailed the results of the corresponding May 1990 X-ray examination which showed no abnormalities other than mild flattening of the plantar arch consistent with preexisting pes planus. It was also noted that the Veteran had no subsequent documentation of treatment for symptoms that could be attributed to bilateral pes planus and denied any history of foot pain on two subsequent in-service Reports of Medical History. On this basis, the December 2019 examiner found no objective evidence that the preexisting pes planus was aggravated by military service. In addition, as the examiner found the preexisting bilateral pes planus was not aggravated by service, she also concluded that it was less likely than not that the condition was incurred in or otherwise attributable to service for purposes of direct service connection. The Board finds this opinion as to whether the bilateral pes planus clearly and unmistakably preexisted service to be highly probative, as it was based on a thorough review of the claims file and is supported by a rationale that referred to the available service treatment records. Sklar, supra. During the May 2019 hearing, the Veteran denied that he experienced any symptoms of bilateral pes planus prior to entering service. He attested, instead, that his symptomatology began during service, which he attributed to a combination of the left foot injury as well as his physical duties during service. According to the Veteran, he did seek treatment for foot pain in service and was only given pain medication without undergoing a formal evaluation. After a review of the claims file, the Board finds that the evidence does not substantiate that there was an increase in disability of the Veteran’s preexisting bilateral pes planus during service. Instead, the Board determines that any degree of symptomatology recorded during service was a “temporary or intermittent flare-up” of the condition that does not reflect an increase in its severity. Accordingly, the Veteran has not met his burden of showing that his preexisting condition worsened in service. As noted previously, there is no documentation in service of the Veteran having sought treatment for symptomatology that may be attributable to his bilateral pes planus other than one instance in May 1990 where he sought treatment for left foot pain after he landed on his heel while playing basketball. The X-ray examination at that time confirmed the existence of bilateral pes planus, but the records of the Veteran’s treatment following the injury do not indicate that the pes planus had worsened in severity since the Veteran’s entrance. Moreover, there are no subsequent records documenting any treatment for bilateral foot symptomatology during service, which further suggests that the preexisting condition did not worsen in severity after the Veteran’s entrance into service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). This conclusion is additionally supported by the probative opinions of the March 2016 VA examiner, to specifically include her December 2019 addendum opinion which conformed to the “clear and unmistakable” standard of evaluation. The Board does recognize that the Veteran has contended that he sought treatment for worsening foot pain while in service and did not received formal medical care, which would explain the lack of documented treatment in service for symptoms of bilateral pes planus. However, the Veteran has not offered an explanation as to why he repeatedly denied experiencing a history of foot pain on several examinations that he underwent during service and in the nearly 20 years after his active service when he continued to perform duties as a member of the Naval Air Reserves. Moreover, while he is competent to report as to incidence of his pes planus symptoms, his lay opinion as to the etiology of his pes planus does not constitute competent evidence, as he lacks medical training or credentials. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Ultimately, objective medical evidence is needed to support a finding that the preexisting disorder increased in severity in service, and the Veteran has not submitted any medical evidence which would serve to suggest that his preexisting bilateral pes planus may have increased in severity during active service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The Veteran’s contentions, unsubstantiated as they are, must be considered in light of the highly probative opinions of the May 2016 VA examiner, who supported her conclusions in May 2016 as well as in December 2019 by reference to the claims file and the Veteran’s documented medical history. In the Board’s estimation, the Veteran’s contentions are far outweighed by the objective medical evidence of record, which overwhelmingly suggests to the “clear and unmistakable” standard that the Veteran’s preexisting bilateral pes planus was not worsened beyond normal progression during service. Accordingly, the Board concludes that service connection for bilateral pes planus by way of aggravation or direct service connection, is not warranted. The Board further notes that as the presumption of soundness has been clearly and unmistakably rebutted, there is no further need to evaluate whether the Veteran is entitled to service connection on any alternative basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is clearly and unmistakably against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.