Citation Nr: 21004189 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-58 866 DATE: January 26, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for lumbar spine disability is denied. FINDINGS OF FACT 1. The Veteran’s bilateral pes planus was noted at entry and clearly and unmistakably was not aggravated or worsen beyond normal progression during or as a result of his service. 2. The Veteran’s lumbar spine disability was noted at entry and clearly and unmistakably was not aggravated or worsen beyond normal progression during or as a result of his service, and did not manifest within one year of separation from active service, and is not otherwise caused by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for service connection for lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to August 1988. In June 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In August 2020, the Board remanded the claim for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they are established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board.”). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The provisions of 38 U.S.C. § 1111 provide that 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 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. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A pre-existing injury or disease noted at entry will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows 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. The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole. See Evans v. West, 12 Vet. App. 22, 26 (1998). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107(b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for bilateral pes planus The Veteran contends that his bilateral pes planus was aggravated by his military service. The Veteran’s service treatment records (STRs) reveal that on his June 1988 Report of Medical Examination: Enlistment exam, the examiner noted pes planus. However, the Veteran reported that he did not have foot trouble. The Veteran’s service entrance examination documents bilateral pes planus at entry. Thus, a claim of service connection for bilateral pes planus will be considered based on a theory of aggravation of a pre-existing disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. For the presumption of aggravation to arise, the evidence must show that there was an increase in the severity of bilateral pes planus during service. The Veteran was discharged on August 2, 1988 by reason of enlisted in error. The Veteran’s private and VA treatment records do not document complaints and/or treatment for pes planus. In November 2020, the Veteran was afforded a VA examination to determine the nature and etiology of his pes planus. The examiner stated that pes planus was noted prior to the Veteran’s entrance into the military. The Veteran stated that during service, he experienced pain in the feet with marching and physical training. He was released from military service in August 1988. The Veteran stated that military service caused damage to his feet. He continued to have pain in his feet. To help manage the pain, he used shoe inserts and supportive shoes. He denied seeking medical treatment for the pain in the feet. The examiner confirmed the Veteran’s pes planus diagnosis. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Additionally, the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated that according to the claims file, the Veteran had bilateral pes planus prior to his July 1988 military enlistment. The Veteran was released from military service in August 1988 without any additional damage or diagnosis to the feet. The examiner concluded that the Veteran’s pes planus is not related to military service. Regarding aggravation, the examiner stated that the Veteran had clear and unmistakable evidence of the preexisting pes planus. The examiner stated that there is evidence to indicate the Veteran continued to suffer from the disorder during service, which is typical of the condition. However, the progression is not beyond normal progression for this disorder. The examiner noted that pes planus is a condition in which the entire sole of the foot touches the floor when standing. Most people have no symptoms associated with flat feet. But some people with flat feet experience foot pain, particularly in the heel or arch area. Pain in the feet is a natural progression of pes planus. See www.mayoclinic.org. The examiner did not identify any evidence of permanent aggravation beyond normal progression. As such, the Veteran’s pes planus was not aggravated beyond natural progression by the military enlistment. The Board notes that the November 2020 VA opinion constitutes the only opinion to specifically address whether the Veteran’s pre-existing disability was aggravated by service. Therefore, the Board finds the VA examiner’s opinion to be the most probative regarding the issue of whether the Veteran’s current pes planus is related to service. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (“It is the responsibility of the BVA to assess the credibility and weight to be given the evidence.”) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, supra, (the probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Based on the evidence of record, the Board finds that service connection for the Veteran’s bilateral pes planus based on aggravation is not warranted. There is no medical evidence of record from the Veteran’s time in service or immediately thereafter suggesting that there was a permanent increase in the Veteran’s disability beyond the natural progression of the disease during his active duty service, i.e., the Veteran was not treated during or after service for his bilateral pes planus. Additionally, the November 2020 VA examiner opined that the Veteran’s bilateral pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated that according to the claims file, the Veteran had bilateral pes planus prior to his July 1988 military enlistment. The examiner further stated that there is evidence to indicate the Veteran continued to suffer from the disorder during service; however, this is typical of the condition, i.e., the progression was not beyond normal progression for this disorder. The Veteran was released from military service in August 1988 without any additional damage or diagnosis to the feet. The examiner stated that pain in the feet is a natural progression of pes planus. However, in this case, the examiner did not identify any evidence of permanent aggravation beyond normal progression. He concluded that the Veteran’s pes planus was not aggravated beyond natural progression by the military enlistment. The Board has considered the Veteran and his representative’s statements regarding the etiology of the Veteran’s bilateral pes planus. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran’s bilateral pes planus and active service is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the lay opinions are outweighed by the VA examiner’s findings. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). Accordingly, to the extent that the Veteran’s reports of pain may suggest an increase in severity, the evidence clearly and unmistakably establishes that such pain was the natural progression of the disorder and did not permanently worsen as a result of his military service. Therefore, the claim of entitlement to service connection for bilateral pes planus must be denied. 2. Entitlement to service connection for lumbar spine disability The Veteran contends that his lumbar spine disability was aggravated by his military service. The Veteran’s STRs document complaints, treatments, and/or diagnosis for thoracolumbar kyphoscoliosis. On his June 1988 Report of Medical Examination: Enlistment exam, the examiner noted thoracolumbar scoliosis. The examiner noted that a curve was found on the exam. The dorsal curve was to the right D6-D12 measuring 30 degrees. The Veteran stated when he was in the eighth grade, he was examined for scoliosis. However, none was found. He reported no symptoms. In July 1988, the Veteran was seen for back pain. On July 29, 1988, the Veteran stated that he was unable to train. He denied recent or remote injury. At the time of the evaluation, he denied numbness, weakness, sensory loss, or shortness of breath. The examiner diagnosed the Veteran with moderate scoliosis and back strain. X-ray revealed lumbar kyphoscoliosis. The examiner stated that an ortho consult should be considered. On August 1, 1988, the Veteran was seen for a follow up on his back pain. He was diagnosed with systematic thoracolumbar kyphoscoliosis. On August 2, 1988, the Veteran was referred to the Medical Board. The Veteran stated that prior to enlistment, he experienced intermittent burning quality pain in his back for one year. The Medical Board determined that the Veteran was unfit by reason of physical disability. The Veteran’s service entrance examination documents thoracolumbar scoliosis at entry. Thus, a claim of service connection for thoracolumbar scoliosis will be considered based on a theory of aggravation of a pre-existing disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. For the presumption of aggravation to arise, the evidence must show that there was an increase in the severity of thoracolumbar scoliosis during service. In April 2016, the Veteran was seen at Open MRI for low back pain. The examiner diagnosed the Veteran with L5-S1 disc dehydration and diffuse disc bulge, mild widening of the facet joints. The examiner stated that the Veteran had a history of low back pain following a January 5, 2016 injury at work. The examiner noted mild curvature of the lumbar spine. In June 2016, the Veteran was seen for a follow up of his lumbar spine disability. The examiner noted low back pain, spondylolisthesis, and degeneration of the lumbar intervertebral disc. In November 2020, the Veteran was afforded a VA examination to determine the nature and etiology of his lumbar spine disability. The Veteran reported back pain in service. He was diagnosed with scoliosis. The Veteran stated that due to his back pain, he was unable to complete physical duties. Due to his back pain, he was released from the military. The Veteran stated that his back pain varies day to day based on the activities he completed the previous day. To alleviate the pain, he stretched and used Bengay, Aleve, and Epsom Salt soak. If he needed medical treatment, he visited urgent care. The examiner diagnosed the Veteran with intervertebral disc syndrome and spondylolisthesis. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Additionally, the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated according to his claims file, the Veteran admitted to having back pain prior to admission into the military. He reported an inability to complete physical duties due to increase back pain. He was diagnosed with symptomatic kypho-scoliosis and released from the military. The examiner stated that the Veteran’s back disability is not caused by military service but pre-existed entrance to service. Regarding aggravation, the examiner stated that the Veteran’s back pain was not aggravated beyond its natural progression by military service. The Veteran entered and exit the military with back pain. The examiner stated that scoliosis was noted on the June 1988 entrance exam. The examiner noted that scoliosis is a sideways curve of your spine—often taking the shape of the letter ‘S’ or ‘C’. Kyphosis is more of a forward rounding of the back, which leads to a hunchback or slouching posture. Scoliosis and Kyphosis-Scoliosis are hereditary diseases. See www.pennmedicine.org. The examiner stated that kyphosis-scoliosis was not caused by military service. Based on the evidence of record, the Board finds that service connection for the Veteran’s thoracolumbar spine disability based on aggravation is not warranted. The Board notes that the Veteran was treated for lumbar spine disability during service; however, for a condition to be considered aggravated in service, there must be worsening of the underlying condition, not just temporary or intermittent flare-ups of the symptoms of that condition during service. See Verdon v. Brown, 8 Vet. App. 529, 537 (1996); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (same effect). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. See Green v. Derwinski, 1 Vet. App. 320, 323 (1991). In order to support a finding of aggravation, the evidence must establish 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 C.F.R. § 3.306(a). During his November 2020 VA examination, the VA examiner stated that the Veteran’s back disability is not caused by military service but pre-existed entrance to service. The examiner opined that the thoracolumbar scoliosis was clearly and unmistakable not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated that scoliosis was noted on the June 1988 entrance exam, and the Veteran voiced back pain prior to admission into the military. The examiner stated that scoliosis and kyphosis-scoliosis are hereditary diseases. As such, the Board finds that the most probative evidence does not demonstrate that the Veteran’s lumbar spine disability progressed at an abnormally high rate during service. Regarding presumptive service connection, the Board finds that service connection for mild widening of the facet joints on a presumptive basis is not warranted as the record does not show evidence of mild widening of the facet joints within one year of separation from active duty. The first competent evidence suggestive of mild widening of the facet joints was in 2016, i.e., 28 years after his discharge from service. As there is no competent evidence that the disability manifested to a compensable degree within one year of active service and was not continuous since service, a presumption of service connection under 38 C.F.R. §§ 3.307, 3.309 is not warranted. Regarding directed service connection, the Board notes that the Veteran has a current diagnosis of intervertebral disc syndrome and spondylolisthesis. As such, element one under Shedden is met. As noted above, the Veteran’s STRs document complaints and treatments for a back disability. As such, element two under Shedden are not met. However, based on the evidence of record, the Board finds that service connection for the Veteran’s intervertebral disc syndrome and spondylolisthesis is not warranted on a direct basis. The Board notes that the Veteran’s STRs do not document complaints, treatments, or diagnosis for intervertebral disc syndrome and spondylolisthesis. During his VA examination, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated according to the claims file, the Veteran admitted to having back pain prior to admission into the military. He reported an inability to complete physical duties due to increase back pain. He was diagnosed with symptomatic kypho-scoliosis and released from the military. The examiner stated that the Veteran’s back disability is not caused by military service but pre-existed entrance to service. Additionally, the Board notes that the first medical evidence of intervertebral disc syndrome and spondylolisthesis was in 2016, i.e., 28 years after discharge from service. The fact that there were no records of any complaints or treatments involving the Veteran’s intervertebral disc syndrome and spondylolisthesis for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). The Board also notes that after service, the Veteran was not treated for back pain until 2016, i.e., after a work accident. Therefore, the Board finds that element three under Shedden has not been met. The Board has considered the Veteran and his representative’s statements regarding the etiology of the Veteran’s thoracolumbar scoliosis. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran’s thoracolumbar spine disability and active service is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the lay opinions are outweighed by the VA examiner’s findings. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). Accordingly, the evidence clearly and unmistakable establishes that his preexisting back disability did not undergo a permanent worsening as a result of his military service, and the preponderance of the evidence is against finding that any other current back disability had its onset during or is otherwise related to service. Therefore, the claim of entitlement to service connection for thoracolumbar spine disability must be denied. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.