Citation Nr: 21003646 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-58 102 DATE: January 22, 2021 ORDER Entitlement to service connection for pes planus of the left foot is granted. FINDING OF FACT Pes planus of the left foot was noted at service entrance and underwent an increase in severity during this period; the evidence does not clearly and unmistakably show that the Veteran’s pre-existing left foot pes planus was not aggravated by military service. CONCLUSION OF LAW Having resolved reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for pes planus of the left foot have been met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1974 to August 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a hearing. The transcript of the hearing is of record. The Board remanded the claim in December 2019. Entitlement to service connection for pes planus of the left foot. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Every person employed in the active military, naval, or air service 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 (the disease or injury need not be symptomatic, but only noted on entrance, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111, 1137; Verdon v. Brown, 8 Vet. App. 529, 534-535 (1996). 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. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. 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. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Intermittent or temporary flare-ups during service of a pre-existing injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, “a lasting worsening of the condition”-that is, a worsening that existed not only at the time of separation but one that still exists currently-is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks entitlement to service connection for a left foot disability, to include pes planus of the left foot. The Veteran testified that he was climbing overall a wall during a training exercise when he fell. He stated that the inside of his left foot hit something as he fell. The Veteran added that he landed in an awkward manner and his left foot buckled. That night his left foot swelled up and he went to sick bay. He reported treatment with x-rays, ice, and medication. The Veteran testified that he was in sick bay for a week until he went before a medical board and was discharged. The Board notes that the Veteran has a current diagnosis of pes planus of the left foot. See December 2013 VA Examination and March 2018 Medical Treatment Record Government Facility. Thus, he has a current disability. The Board observes that the Veteran’s service treatment records (STRs) are largely unavailable. When service records are incomplete the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (wherein the Court declined to apply an “adverse presumption” where records have been lost or destroyed while in government control which would have required VA to disprove a claimant’s allegation of injury or disease). A review of the available STRs shows that the Veteran was noted to have bilateral mild asymptomatic pes planus in his April 1974 entrance examination. See March 2014 Medical Treatment Record Government Facility. Accordingly, the Veteran is not presumed to have been sound on entrance. See 38 U.S.C. § 1153. When a Veteran is not presumed sound on entrance, the evidence of record must show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). There are no STRs documenting any injury to the left foot. Aside from the entrance examination, the only notation pertaining to the left foot is an August 1974 entry stating flat foot, bilateral, EPTE. That same date, it was noted that the Veteran’s health record was closed by reason of discharge due to physical disability, erroneous enlistment, unsuitable for service. Although the Veteran was separated from service because of pes planus, a medical board report is not of record. The question for the Board is whether the presumption of aggravation arises. As noted above, there is no documentation of an in-service injury to the left foot. Although the available records reflect that the Veteran was separated from service due to his bilateral pre-existing pes planus, the record does not reflect that his left foot pes planus increased in severity, but not his right. On the other hand, the Veteran has asserted since at least 2010 that he injured his left foot during service. It is also noted that at least some of his STRs are missing. Assuming that the Veteran’s report of an in-service injury to his left foot occurred, there is medical evidence that supports his claim. The Veteran was afforded a VA examination in December 2013 with an addendum opinion in January 2014. In the December 2013 examination, the examiner diagnosed the Veteran with bilateral pes planus and opined that the Veteran’s claimed condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service event, injury or illness. The examiner explained that unlike the pes planus of the right foot, the Veteran is unable to stand on toes painlessly or invert his left foot heel. Further, the Veteran has subluxation clinically of the talonavicular joint on the left. The examiner concluded that these findings indicate progression of pes planus beyond its natural course as compared to the pes planus of the right foot which did not sustain an in-service injury. The examiner determined that the type of injury that the Veteran sustained in service can create pathology on the medical side soft tissue including the Veteran’s tendon. On the contrary, in a January 2014 addendum, a different VA examiner opined that the Veteran’s pre-existing flat foot was not aggravated in service as the in-service treatment records do not reflect an in-service injury or aggravation. Assuming the Board finds the Veteran’s report that he injured his left foot during service to be credible, the December 2013 VA opinion would be the most probative evidence of record. In this regard, while the January 2014 opinion provider opined that the Veteran’s pre-existing left foot pes planus was not aggravated by service, the Board notes that the examiner exclusively relied on absence of documented in-service left foot treatment or injury due to missing records. On the contrary, the December 2013 VA examiner considered the Veteran’s reported in-service left foot injury when providing his favorable opinion. Further, when conceding that the presumption of aggravation under section 1153 arises with an in-service injury and the December 2013 VA opinion, the burden then shifts to the Board to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. 38 C.F.R. § 3.306(b); Wagner, 370 F.3d at 1096; Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (“Once the Veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease.”). Based on the current evidence of record, the Board cannot meet this burden. After considering the favorable and unfavorable evidence, the Board finds that they are at least of equal probative value. Resolving reasonable doubt in the Veteran’s favor, service connection for a left foot pes planus is warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, 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.