Citation Nr: 21062880 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-29 000 DATE: October 12, 2021 ORDER Entitlement to service connection for a bilateral foot condition is granted. FINDING OF FACT The Veteran's bilateral foot condition underwent a permanent increase in severity in service. CONCLUSION OF LAW The criteria for service connection for bilateral foot condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1986 to May 1990, and then from January 1991 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in August 2021. 1. Entitlement to service connection for a bilateral foot condition. The Veteran asserts he is entitled to service connection for his bilateral foot condition, also claimed as feet B/L. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 38 C.F.R. § 3.303. Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id. Service connection may be granted for congenital diseases, but not congenital defects. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of soundness applies if a veteran's congenital disease is not noted at entry. See, Quirin, 22 Vet. App. at 396-97, Monroe, 4 Vet. App. at 515. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly, [o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See id. The burden is not met by finding "that the record contains insufficient evidence of aggravation." See id. An October 1988 service treatment record notes the Veteran reported that for the prior 2 months his left foot was "very irritated" when standing, walking, or running. He further reported pain with a pulling sensation in the middle part of the bottom of the foot. Possible strain of tendon of peroneus brevis was noted. Mild pes planus was further noted. A February 1991 service individual sick slip notes the Veteran reported having pain in the bottom of his feet and numbness in his toes. A February 1991 service treatment record notes the Veteran reported pain on the bottom of his foot when walking, and on the top of his foot when standing. He further reported numbness in his right big toe, stating that he has trouble walking in the morning until he gets his circulation going. Upon examination, right plantar fasciitis secondary to pes planus was noted. It was further noted that he was "not fit for deployment". A December 2013 VA treatment record notes the Veteran reported wearing custom inserts for 13 years to help with support during athletic injury after bilateral Achilles tendon ruptures in the 80s and 90s. A January 2016 VA treatment record notes the Veteran reported painful and stiff arches, especially in the morning, that began with a gradual onset of pain years prior for which he visited the podiatry clinic for inserts in 2013. Bilateral pes planus and bilateral plantar fasciitis were noted. An April 2016 VA treatment record notes the Veteran has bilateral pes planus and was fitted for orthotics. A September 2016 VA treatment record notes the Veteran has a diagnosis of bilateral congenital pes planus. The Veteran was afforded a VA foot conditions examination in April 2018. A diagnosis of bilateral pes planus was noted. The Veteran reported having a dull pain on the bottom of his feet that prevented him from being deployed. He further reported having dull pain, plantar and medial, that is worse in the morning and improves with walking around the house before leaving for work. The examiner opined that the Veteran's bilateral pes planus clearly and unmistakably existed prior to service and may have been temporarily aggravated by his service, but not permanently worsened beyond the natural progression of the disease, noting that there is no supporting medical documentation or continuity of care to substantiate the claim. Here, the VA examiner based his opinion regarding aggravation entirely on a lack of supporting medical documentation. As noted above, VA must rely on affirmative evidence to prove that there was no aggravation, rather than the notion that the record contains insufficient evidence of aggravation. See, Horn at 235. As such, the Board finds the pinion is inadequate and of no probative value. In his May 2018 appeal to the Board, the Veteran stated that he did have foot issues before entering the service but was told at his entrance physical that he was fit for service. He then stated that he had minimal discomfort before service, but the boots and physical training caused "very significant pain after removing boots and stopping PT." He then asserted that the pain remains to this day and that he has received treatment for his feet ever since service. The Board finds that the Veteran has provided competent and credible statements that his symptoms of bilateral foot pain have been continuous since service. Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding recurrence of symptoms can provide a direct link between the active service and the current state of his condition). VA treatment records post-service also demonstrate treatment for bilateral foot pain symptoms post-separation. Although there is no probative medical opinion of record that supports a nexus between the Veteran's in-service incidences of bilateral foot pain and his current symptoms, such evidence is not necessary considering the lay evidence of record concerning the onset and continuity of his symptoms. King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Flynn v. Brown, 6 Vet. App. 500 (1994). For the reasons stated above, the Board concludes that the Veteran's bilateral foot condition underwent an increase in severity in service and is presumed to have been aggravated by service; the presumption of aggravation has not been rebutted by clear and unmistakable evidence. Indeed, as noted above, he was unable to deploy to the Persian Gulf. In light of the foregoing, service connection for bilateral foot disability is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.