Citation Nr: 21003749 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-31 668 DATE: January 22, 2021 ORDER Entitlement to service connection for a bilateral foot disability is denied. FINDINGS OF FACT 1. For the period of service from July 3, 1990 to August 3, 1990, the Veteran's bilateral foot condition clearly and unmistakably preexisted his entry into service, and his disability clearly and unmistakably was not aggravated by service. 2. For the period of service from September 16, 1994 to February 28, 1995, the evidence shows that the left foot disability was not aggravated by military service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 3, 1990 to August 3, 1990 and the United States Army from September 16, 1994 to February 28, 1995. This matter is before the Board of Veterans' Appeal (Board) on appeal from a July 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2018. The Board previously remanded the appeal in April 2019. The Board’s remand directives specifically sought the Veteran’s complete service treatment records and service personnel records, and directed that an updated VA opinion be obtained. Thereafter, the Veteran’s complete service records were obtained and associated with his claims file, and a new VA opinion was obtained. Thus, there is substantial compliance with the Board’s remand instructions. Entitlement to service connection for a bilateral foot disability. The Veteran is seeking service connection for his current bilateral foot disability. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and aggravation by clear and unmistakable evidence. A “claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong,” even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the “burden is not on the claimant to show that his disability increased in severity.” To the contrary, the burden is on VA to “establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease.” This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231 (2012). As noted above, the Veteran has two periods of active service. The Veteran’s first period of service (July 1990 to August 1990) was terminated due to a disability which existed prior to entry. The July 1990 Medical Board report provided that the Veteran reported no history of foot pain prior to enlistment, however the Veteran came to the attention of the Branch Medical Clinic, Marine Corps Recruit Depot during Forming days, and presented with symptoms of bilateral foot pain. The examination revealed bilateral hallux valgus with bunions bilaterally, secondary to pes planus, which existed prior to enlistment. The Veteran did not rebut the findings of the Medical Board at that time. In 1993, the Veteran underwent a bilateral bunionectomy with sesamoidectomy fibula bilaterally. The Veteran was readmitted for military service in September 1994. The Veteran’s bilateral foot disability was noted in his service treatment records in April 1994, before his active service started in September of that year. The Veteran was medically qualified for military service in May 1994. However, complaints of bilateral foot pain began in November 1994, which triggered the determination of whether the Veteran was fit for service. The Veteran was found no longer fit for service and was discharged from active service in February 1995. The Veteran, however, contends that he did not have any issues with his feet prior to first period of active duty service despite not rebutting that contention in 1990. The Veteran further contends that he was forced to wear shoes that were two sizes too small during boot camp that caused or aggravated his current foot disability. Moreover, the Veteran contends that a combination of the uncomfortable shoes and the wear and tear of bootcamp aggravated beyond its natural progression his bilateral foot disability. As such the questions for the Board are, (1) if the Veteran’s disability was not noted at entry for his first period, then he would be presumed sound, and the question would be whether it can be established by clear and unmistakable evidence that the Veteran’s bilateral foot disability existed prior to service and was not aggravated by service, and (2) the Veteran second period of service is dependent on the determination of whether the Veteran’s bilateral foot disability was aggravated beyond its natural progression by his military service. The Veteran was initially afforded a May 2015 VA examination to determine the nature and etiology of his claimed bilateral foot disability. The VA examiner concluded that the Veteran’s bilateral foot condition clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an-service event, injury or illness. The VA examiner highlighted the lack of evidence that the Veteran’s pre-existing bilateral foot condition was aggravated beyond its natural progression by the complaints of bilateral foot pain and degenerative joint disease (DJD). The VA examiner also noted that the Veteran underwent a bunionectomy in 1993. As such, the VA examiner found that the Veteran’s DJD was mostly due to the surgical procedure in 1993 and not aggravation by his active service based on the anatomical nature of the procedure and DJD. The Veteran submitted a November 2018 private medical opinion from Dr. J. M. Crates. Dr. Crates stated that the Veteran reported that he was in the military and forced to go through military basic training wearing boots and shoes that were 2 sizes too small. Based on the Veteran’s reports, the private doctor concluded that from, “an orthopedic standpoint, at least as likely as not, this can cause long-term effects and damage in the feet and ankles that can result in the need for surgery and chronic pain.” The claim was remanded by the Board again in February 2019 for a VA examination to determine the nature and etiology of the left knee disorder, including whether the potentially preexisting bilateral foot condition was aggravated by the Veteran’s second period of service. The Veteran was afforded a March 2020 VA examination in which the examiner indicated his bilateral foot condition clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated beyond its natural progression by service. The VA examiner noted that despite the Veteran being cleared through a medical examination twice, it is possible that the Veteran’s hallux valgus was asymptomatic and not intense to enough to elicit symptoms upon examination. However, given that the Veteran was unable to complete training following his enlistment examination, it follows that the hallux valgus would have been severe enough to cause symptoms prior to both enlistments. The VA examiner opined that, “such a short period of training would cause aggravation in the pathology of the hallux valgus itself.” The VA examiner found that the Veteran’s bilateral foot condition (pes planus), which existed prior to his second period of service, however the VA examiner found no evidence of complaints to support aggravation. As such, the VA examiner held that pes planus was less likely than not aggravated beyond its natural progression by the Veteran’s second period of service. Moreover, the VA examiner opined that the Veteran’s pes planus and arthritis are not caused by the Veteran being forced to wear small boots and shoes in training. The VA examiner also found that the Veteran’s bilateral foot condition was less likely than not incurred in or caused by the Veteran’s active service. The VA examiner highlighted that the Veteran’s bunions condition was present prior to his entrance into the military. As such, the condition was not caused by two brief training periods in the service before being medically discharged. The VA examiner also provided that the Veteran’s pes planus was not noted during the Veteran’s first period of service but was found prior to the Veteran’s second period of service. The Board determines the May 2015 and March 2020 VA opinions are the most persuasive evidence of record, as to whether (1) it can be established by clear and unmistakable evidence that the Veteran’s bilateral foot disability existed prior to service and was not aggravated by service, and (2) the Veteran’s bilateral foot disability was aggravated beyond its natural progression by his the Veteran’s second period of active service. Both examiners’ conclusions are clear and unequivocal and are based on the relevant information, including the Veteran’s service treatment records, post-service medical records, the Board’s remand instructions, and discussion of the Veteran’s lay statements. Moreover, the explanations are logical and follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board, however, finds the November 2018 private medical opinion to be of less probative value because: (1) it is based on the Veteran’s report and not review of his medical record, (2) the private physician did not address whether the Veteran’s bilateral foot disability pre-existed service, (3) the medical opinion did not address aggravation, and (4) the medical opinion offers no rationale or support for the general medical conclusion. Based on these opinions, the Board finds first that the Veteran is entitled to a presumption of soundness prior to his first period of active service. The Board further finds that the presumption has been rebutted by the evidence which shows both that the Veteran’s bilateral foot disability clearly and unmistakably preexisted his active service, and that it clearly and unmistakably was not aggravated beyond its normal progression during that first period of service. As to the Veteran’s second period, the Board finds that the Veteran is not presumed sound, as his conditions were clearly noted on examinations performed prior to his entry. The Board also finds that the Veteran’s disability was not aggravated beyond its normal progression during this second period of service. The Board acknowledges the Veterans contentions that his preexisting bilateral foot condition worsened during service, or alternatively, that the disorder is directly related to service. While the Veterans assertions are consistent, as a lay person he has not been shown to have specialized training sufficient to render an opinion as to the etiology of a bilateral foot condition, as such is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board accords greater probative weight to the physician who provided the March 2020 VA examination and opinion than to the Veterans lay statements in support. In sum, the evidence shows the Veteran's bilateral foot condition clearly unmistakably preexisted service and was not aggravated or worsened during such service or is not otherwise related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a bilateral foot condition is not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans Appeals Attorney for the Board J.R. Higgins, Associate Counsel The Boards 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.