Citation Nr: 21063887 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-37 830 DATE: October 18, 2021 ORDER Service connection for a bilateral foot disability is granted. FINDING OF FACT The Veteran's bilateral foot disability had its onset in service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 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 March 1964 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in April 2020 for additional development. 1. Service connection for a bilateral foot disability. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active-duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran contends that he has a bilateral foot disability that is related to his military service. Specifically, he asserts that his enlistment physical examination does not list any problems with his feet and that his bilateral foot problems started during active duty and have progressively worsened over the years. See VA Form 9, July 2018. As a preliminary matter, the Board finds that the Veteran has a current diagnosis of several bilateral foot disabilities, including a pes planovalgus deformity, plantar fasciitis, pes cavus, gastroc equinus, and medial arch pain. The Veteran's enlistment examination from March 1964 is silent for a foot condition. In fact, the box for normal "feet" is checked and "no additional defects discovered" is noted. In the November 1966 Report of Medical History for separation, the box indicating abnormal feet was checked and "flating of longitudinal arches" was noted. Pes planus was also listed under "summary of defects and diagnoses." The Veteran was afforded a VA examination in August 2015. The examiner opined that the Veteran's mild pes planovalgus deformity was not incurred in, caused by, related to, and/or permanently worsened by his military service. He stated that the mild, bilateral pes planus (flat feet) is more likely than not a congenital condition, meaning that it was present at birth and appears to be progressing naturally, just as it would for the Veteran, regardless of his military service. The examiner acknowledged the lack of complaints or treatment for foot problems in the Veteran's STRs. In a private treatment letter dated in February 2016, a doctor did not provide a nexus opinion but did note that the Veteran "may have sustained injury along his posterior tibial tendon that may have resulted in more of a progressive pes planovalgus deformity." In August 2020, a VA examination was conducted where the Veteran reported that he entered service without foot problems but was given shoes in service that were three sizes too big and was told he had flat feet in 1967. He stated that his feet have hurt since service. The examiner noted diagnoses of flat foot, hallux valgus, hammer toes, plantar fasciitis, gastroc equinus, and pes cavus. The examiner opined that the Veteran's bilateral foot disability was less likely than not incurred in or caused by service and is more likely due to the progression of the congenital condition. 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. In this case, the Veteran's bilateral foot disability was not noted upon entry into service. Accordingly, the Board finds that the presumption of soundness applies. Therefore, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. See Wagner, 370 F.3d at 1096; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). If this burden is met, then the Veteran is not entitled to service-connected benefits. If the government fails to rebut the presumption of soundness, however, the Veteran's claim is one for direct service connection. The Board acknowledges the August 2015 and August 2020 VA examinations determining that the Veteran's bilateral foot disability was pre-existing. However, the Board notes that the examiner's opinions do not amount to clear and unmistakable evidence that the Veteran's bilateral foot disability preexisted and was not aggravated during service, particularly in light of the Veteran's normal enlistment examination coupled with his competent, credible lay statements that his bilateral foot pain began in service. Therefore, the presumption of soundness has not been rebutted. The Board finds that service connection is warranted. The Veteran has a current bilateral foot diagnosis that was not noted on the enlistment examination. His 1966 separation examination shows that he had "abnormal" feet and pes planus. Further, the Veteran has consistently maintained that his foot disabilities occurred in service. See Lay Statement, March 2016; Notice of Disagreement, February 2016; Veteran Supplemental Claim, May 2016; VA Form 9, July 2018; VA Examination, August 2020. Accordingly, based on the lay and medical evidence of record, the Board finds that there is not clear and unmistakable evidence showing that the Veteran's bilateral foot disability both pre-existed and was not aggravated by service. Thus, because the Veteran was normal at service entrance with respect to his feet, and since the evidence does not clearly and unmistakably show that his bilateral foot disability both existed prior to service and was not aggravated by service, (and he currently suffers from a bilateral foot disability), the criteria for service connection have been met. As such, service connection for a bilateral foot disability is warranted. See 38 U.S.C. § 3.303. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.