Citation Nr: 21002790 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-37 285 DATE: January 14, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. FINDING OF FACT The Veteran’s bilateral pes planus was noted at entry on active duty and thus preexisted his active duty service, and clear and unmistakable evidence demonstrates that the Veteran’s bilateral pes planus was not aggravated during service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force as a nondestructive inspection specialist from September 1977 to October 1979. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans’ Law Judge at a Board video conference hearing in October 2018. A transcript of the hearing has been associated with the claims file. Previously, the claim was before the Board in March 2019 and was remanded for additional development. The Board finds there has been substantial compliance with the prior remand directives, and the claim is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: “(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 or aggravated during service” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. Every veteran shall be 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. § 1111. In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder 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. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that “[a] preexisting 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 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Entitlement to service connection for bilateral pes planus The Veteran contends that service connection is warranted for his current bilateral pes planus. The Veteran reports that his current pes planus was aggravated by service. The Veteran testified in October 2018 that during service he had ongoing foot pain and was given orthotics, and that the in-service marches aggravated his flat feet. The Veteran reports that aggravation of his flat feet has worsened over time and resulted in his current difficulty walking. The Veteran is competent to describe his current symptoms, in-service events, and the occurrence of ongoing symptoms, and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The first question for the Board is whether the Veteran’s bilateral pes planus preexisted his service. Then the next question for the Board is whether the Veteran’s bilateral pes planus was clearly and unmistakably not aggravated by service, and whether any increase in the Veteran’s bilateral pes planus disability occurred in-service, and whether such was due to the natural progress of the disease. The Veteran has a diagnosis of bilateral pes planus. The Veteran’s service treatment records (STRs) have been associated with the claims file. At entrance on the report of medical examination in December 1976, clinical evaluation of the feet noted bilateral pes planus. In service, in February 1978 treatment records note the Veteran reported that the arches of his feet hurt after marching for 8 days. Examination noted flat arches and pes planus bilaterally. Arch supports were recommended, and the Veteran was to return for care if needed. In January 1979, a clinician examined the Veteran for a different abnormality but noted that the Veteran played a lot of basketball. At separation on the report of medical examination in October 1979, clinical evaluation of the feet and lower extremities was normal. The examiner noted the Veteran’s reports of trouble with flat feet but noted no significant abnormal findings on examination. At separation on the report of medical history in October 1979 the Veteran reported foot trouble. In this case, the evidence of record clearly establishes that the Veteran’s bilateral pes planus was noted at entry, and he is not presumed sound with respect to this disability. Next, the Board must determine if there is clear and unmistakable evidence that the disorder was not aggravated during service. During the October 2018 Board hearing, the Veteran testified that he ran in combat boots during basic training and later during technical school he was provided orthotics for his foot pain. He testified that this was the first time he wore them and has continued to do so after service. The Veteran was afforded a VA examination in October 2020. The examiner noted bilateral pes planus. The Veteran reported developing pain in his feet during service while wearing combat boots. The Veteran currently reports ongoing symptoms of pain in the arches of his feet, pain in his knees and difficulty standing/walking for prolonged periods of time. The Veteran reports flare ups when walking for long periods of time at the casino. Prior to retiring the Veteran reported that he would often have to miss work due to pain in his feet. The Veteran reported functional loss in that he has daily pain and on occasions this would cause him to miss work when working as a groundskeeper. Pain on use of the feet and pain on manipulation on the right side was noted. The Veteran used bilateral arch supports. The Veteran experienced pain which contributes to functional loss. The Veteran’s foot condition impacted his ability to perform occupational tasks in that it limits prolonged standing and walking. The VA examiner noted an extensive review of the Veteran’s claims file. The VA examiner noted that the Veteran had asymptotic pes planus at entrance to service, and that it is less likely than not that the Veteran’s preexisting pes planus was aggravated during service. The examiner noted that there is no objective evidence to support such, as at separation from service there was no objective evidence of foot pain, and clinical evaluation noted pes planus but noted no ongoing symptomology. Evidence of regular foot pain began over 30 years after separation from service with reports of foot pain and knee pain bilaterally in 2012. Further, the examiner noted that previously the Veteran has attributed his foot pain to his bilateral knee pain, noting he did not experience foot pain until after his knee replacements, then more recently he has reported his foot pain began during service. The examiner noted that the Veteran’s lay statements and testimony reporting that his foot pain began during service is not credible as it contradicts the documented medical records from 2012 through 2017 and the separation examination. The examiner noted that there is no evidence of ongoing foot pain in the 1970s, and that there is no evidence of aggravation of the Veteran’s pes planus until 2012 with pain over the metatarsals. The examiner noted that the Veteran’s bilateral pes planus has worsened however the Veteran’s pes planus was not aggravated beyond its natural progression by service. The VA examiner found that the Veteran’s current bilateral foot pain was shown to develop around 2012 and such is attributed likely to his advanced age and the natural progression of his congenital pes planus combined with aging and working as a groundskeeper for 40 to 50 years. The examiner noted that that it is less likely than not that the Veteran’s preexisting pes planus was aggravated during service. The examiner noted that that it is not clear and unmistakable that the Veteran’s preexisting pes planus was not aggravated during service, as there is no way to prove a negative. However, the issue is whether the disorder worsened during service. The examiner noted that there is a complete lack of evidence that the Veteran’s preexisting pes planus was aggravated by service, and there is no evidence to support such a claim. The examiner found no objective evidence of foot pain, foot complaints or a worsening of the Veteran’s pes planus over the course of the 30 years after separation from active duty. Further, the examiner noted that previously the Veteran has reported that his foot pain began after his bilateral knee replacement, not during active duty service. The examiner noted a thorough review of the Veteran’s lay statements and testimony reporting that his foot pain began during service, however, finds that such is contradicted by the medical evidence of record. VA treatment records have been associated with the claims file. A review of these records shows that the earliest self-reports of foot pain and associated symptomology began in 2008. Treatment records note foot pain and the use of inserts. These treatment records do not contradict the VA examination and are absent indications of aggravation between the Veteran’s current pes planus and service. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection for bilateral pes planus is warranted. The Board concludes that service connection for bilateral pes planus is not warranted as there is clear and unmistakable evidence establishing that the Veteran’s bilateral pes planus was not aggravated by service beyond the natural progression of the disease. The Veteran’s lay statements regarding his current symptoms, in-service events and ongoing symptomology are credible. He credibly reported foot discomfort while marching and running in combat boots, although this would have been frequent in boot camp but much less in technical school and as a nondestructive test technician working on aircraft. Moreover, the Veteran reported playing basketball frequently. He was provided orthotics. While the Veteran reports that his current pes planus is generally related to and was aggravated by service the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking his current symptomology and an aggravation of his pes planus to service and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent medical evidence of record including the October 2020 VA examination is entitled to significant probative weight. In this regard, the most credible medical evidence of record clearly and unmistakably supports the conclusion that the Veteran’s preexisting bilateral pes planus was not permanently aggravated by service. The examiner was not correct that the Veteran did not report pain in service as he did seek care and was provided orthotics. Specifically, the VA examiner in October 2020 noted that there is a complete lack of evidence that the Veteran’s preexisting pes planus was aggravated by service, and there is no evidence to support such a claim. The VA examiner discussed how the evidence of record did not document aggravation beyond the normal progression of the disorder, and that post-service records do not document aggravation of foot problems for over 30 years after service. Treatment records in 2012 note increasing foot pain, but not a continuity of such problems from service. Further, the VA examiner noted that the Veteran reported increased symptomology and worsening of his foot pain in recent years, after his bilateral knee replacements. In addition, the examiner noted that the Veteran’s current bilateral foot pain which developed around 2012 is attributed to his advanced age and the natural progression of his congenital pes planus combined with aging and working as a groundskeeper for 40 to 50 years. As such the Board finds that there is nothing to indicate a permanent aggravation of the Veteran’s bilateral pes planus beyond the natural progression of the disease during the Veteran’s active service. The Board acknowledges that the examiner noted that it was less likely than not that the Veteran’s preexisting pes planus was aggravated during service. That said, the examiner clearly indicated that the bilateral pes planus was not aggravated by service. In light of the foregoing, while not using the term “clear and unmistakable,” the Board finds that in context the examiner found it clear and unmistakable that the Veteran’s bilateral pes planus was not aggravated by service. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293-294 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). As such the Board finds that there is clear and unmistakable evidence of record that the Veteran’s bilateral pes planus was not permanently aggravated during service. As noted above, the underlying disorder, as opposed to the symptoms must be shown to have worsened in order to find aggravation. In this case, there is no objective evidence that even the Veteran’s symptoms worsened during service. The Veteran had one treatment visit in-service where he reported foot pain after prolonged marching, and he was fit for orthotics. However, at separation the Veteran did not have abnormal findings of the feet on examination, which suggests the absence of current or ongoing foot problems. While the Veteran noted a history of foot pain at separation, clinical evaluation was normal. The Board has considered the Veteran’s lay statements and testimony regarding his in-service symptoms and post-service symptomology. During service, the Veteran was seen for foot pain and provided arch supports in February 1978. There is no evidence that after this initial pain, and the issuance of inserts that the Veteran sought care for any ongoing symptomology associated with his pes planus. Thus, the evidence of record supports the conclusion that a permanent aggravation of the Veteran’s preexisting bilateral pes planus did not occur during service. For this reason, the Board finds that service connection for bilateral pes planus is not warranted. The October 2020 VA examination noted that the Veteran was recently diagnosed with degenerative arthritis in October 2020. During service, the Veteran reported foot pain at times. In any case, the sole other diagnosed foot disability is degenerative arthritis which was diagnosed in October 2020. The VA examiner attributed the Veteran’s currently symptomology including his arthritis to aging and his working as a groundskeeper for a long period of time. As such, there is nothing linking the Veteran’s bilateral foot degenerative arthritis to active service. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral pes planus. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.