Citation Nr: 21061271 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-40 099A DATE: October 1, 2021 ORDER Entitlement to service connection for bilateral pes planus, on an aggravation basis, is granted. FINDING OF FACT The Veteran's bilateral pes planus was noted on his enlistment examination report, the evidence shows that there was an increase in the disability, and VA has not shown clear and unmistakable evidence that any increase was due to the natural progress of the preexisting condition. CONCLUSION OF LAW The criteria to establish service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2006 to November 2013. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's August 2017 VA Form 9 Substantive Appeal appealed the issues of service connection for bilateral pes planus and adjustment disorder. A September 2020 rating decision granted entitlement to service connection for mood disorder (claimed as adjustment disorder and major depressive disorder). As this constitutes a full grant of the benefit sought on appeal in regard to the psychiatric disability, there remains no issue of controversy for adjudication by the Board on that claim. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Entitlement to service connection for bilateral pes planus Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Also pertinent is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C. § 1111 on claims for service-connected disability, in pertinent part: [I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. Wagner, 370 F. 3d at 1096. A pre-existing disorder will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Turning to the evidence, the report of medical examination prepared on the Veteran's enlistment in March 2006 listed "mild pes planus, asymptomatic." Service treatment records show complaints of foot problems and diagnoses of pes planus in April 2008, September 2008, and February 2009. The Veteran was issued orthopedic shoe inserts for pes planus in September 2008. A June 2010 pre-deployment medical assessment stated that the Veteran was not to jump or run, and that he was to walk or march at his own pace and distance. The Veteran underwent a VA examination for foot conditions in May 2014. The examiner diagnosed bilateral pes planus (originally diagnosed March 10, 2006). The Veteran said that he developed heel and mid-foot pain during service due to prolonged standing and marching and said that his symptoms do not significantly improve when using inserts. On examination, there was tenderness to palpation mid-foot in both feet which was accentuated on manipulation but no swelling, characteristic calluses, extreme tenderness of plantar surfaces, marked deformity or marked pronation, or marked inward displacement with severe spasm of the achilles tendon on manipulation. May 2014 X-rays showed findings consistent with bilateral pes planus. In a July 2015 written statement, the Veteran said that his pre-existing pes planus was aggravated during service because he was treated for pes planus several times during service, and he did not need to use orthopedic shoe inserts before entering service. A second VA examination for foot conditions was completed in July 2017. The examiner diagnosed bilateral flat foot. There was mild pain in the bilateral feet and the Veteran reported flare ups with swelling after walking long distances such as at a shopping mall. He reported that he continued to use the orthopedic shoe inserts. A July 2017 VA medical opinion concluded that the bilateral pes planus was not aggravated beyond its natural progression by an in-service event, injury, or illness because it was described as "mild" on his enlistment examination and it remains mild at the present. As the Veteran's pes planus was noted on his enlistment, the Veteran must show evidence that it has worsened. See Wagner, 370 F. 3d at 1096. As the March 2006 enlistment examination stated that the pes planus was asymptomatic at that time, and the Veteran was treated for symptoms during his service in April 2008, September 2008, and February 2009, the evidence demonstrates that the condition worsened during his active-duty service. As the Veteran has shown evidence that the condition worsened during active-duty service, the burden shifts to VA to show clear and unmistakable evidence that the any increase in disability is due to the natural progress of the disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). The July 2017 medical opinion holds little probative value because it did not address the Veteran's multiple complaints about his pes planus during service or the fact that the pes planus was described as "asymptomatic" in March 2006. There is no evidence concerning the natural progression of pes planus, or whether there is a natural progression. As there is not clear and unmistakable evidence showing that the worsening of the Veteran's bilateral pes planus was due to its natural progression, the presumption of aggravation is not rebutted and service connection for pes planus on an aggravation basis is warranted. See Wagner, supra; 38 C.F.R. § 3.306(b). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.