Citation Nr: 21065644 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 19-22 672 DATE: October 26, 2021 ORDER Entitlement to service connection for left foot pes planus (flatfoot) is granted. Entitlement to service connection for right foot pes planus (flatfoot), is granted. FINDINGS OF FACT 1. The Veteran's left and right foot pes planus disorder was noted at the time of entry into active service. 2. The evidence of record is sufficient to raise the presumption of aggravation and does not clearly and unmistakably show that the Veteran's preexisting left and right foot pes planus disorder was not aggravated by an in-service injury or as a result of any incident in service. 3. Resolving all doubt in the Veteran's favor, the Veteran's current left and right foot pes planus disorder was aggravated during his active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left foot pes planus disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. 2. The criteria for entitlement to service connection for right foot pes planus disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1998 until his honorable discharge in March 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). These matters have been before the Board on two prior occasions, first, in February 2020, when the Board denied the Veteran's claims. The Veteran subsequently appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Partial Remand (JMPR) submitted by the parties, the Court entered an order in March 2021 vacating the Board's decision, in part, and remanding the matter to the Board for readjudication. The matter then came before the Board a second time in July 2021, when the Board remanded these claims for adequate VA opinions pursuant to the parties JMPR. They have now been returned to the Board for readjudication. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§§ 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. §§ 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that service, unless there is a specific finding 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. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If both of these requirements are not met, the presumption of soundness is not rebutted, and the case becomes one of direct service connection. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. Aggravation 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 C.F.R. § 3.306 (b). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). Except as provided in 38 C.F.R. § 3.300 (c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability not due to normal progression (aggravation). Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 1. Entitlement to service connection for left foot pes planus (flatfoot) is granted. 2. Entitlement to service connection for right foot pes planus (flatfoot), is granted. First, in its prior decision, the Board determined that there is sufficient evidence to determine that the Veteran's right and left foot pes planus preexisted his active duty service, finding that bilateral pes planus which was noted during a January 1998 service medical examination (Reserve service) reasonably served as the Veteran's entrance examination, as this examination was conducted just prior to the Veteran's entry into active service in March 1998. As such, the Veteran had a preexisting left and right pes planus disability that was noted upon entry. Thus, the presumption of soundness does not apply in this case 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The issue of contention is whether the presumption of aggravation applies and if so, whether there is clear and unmistakable evidence that shows the Veteran's preexisting bilateral pes planus disability did not undergo a permanent worsening beyond the normal progression of the disability during active service. As to a current diagnosis, the record reflects that the Veteran was diagnosed with bilateral flat foot (pes planus) in October 2018, which is during the appeal period. Thus, the first element of service connection has been met. With regards to the second element of in-service occurrence or aggravation of a disease or injury, the record reflects several in-service references documenting the Veteran's bilateral foot pain. Specifically, a June 1998 in-service medical record reflects treatment for left foot pain, and a diagnosis of tinea pedis; a February 2000 treatment for right foot pain; a March 2000 in-service medical record of right ankle/foot pain and a prescription for arch supports on each foot; and a July 2000 in-service medical record documenting follow-up treatment for foot pain and the Veteran's statements that the arch supports hurt his feet. As to the final element of a nexus, notwithstanding these facts, during the Veteran's initial VA examination conducted in October 2018, the examiner found no aggravation, citing in part to a lack of in-service complaints of foot pain or diagnoses, and that the Veteran's bilateral foot disability was only diagnosed in 2014, which was 13 years post service. Because the evidence of record includes the previously referenced in-service complaints of foot pain, this examiner's opinion was deemed factually inaccurate and inadequate, resulting in the need for a new VA examination. However, in the subsequent August 2021 VA examination, another examiner also found that the Veteran's bilateral pes planus disorder was not aggravated by his military service, for a different reason, stating the following as his rationale: The pes planus according to the Veteran had its onset prior to service as he was born with pes planus. Pes planus is typically a congenital condition and the condition was not disabling in service nor did it limit it from performing his duties. His separation exam on 1/29/2001 noted no issues with pes planus nor were there any for years afterwards. His first documented issue for foot problems was in 2019 and this was for right foot plantar fasciitis, which has resolved and was not symptomatic on exam today. Thus, the diagnosed bilateral pes planus condition was congenital, and it was not aggravated beyond its natural progression by an in-service event based on medical record review from service and current physical examination findings on exam today, which noted asymptomatic pes planus. Unfortunately, the Board finds that this August 2021 VA examiner's opinion is also inadequate. This is because of the examiner's finding that the Veteran's bilateral pes planus is a "congenital condition" without stating whether such is a congenital defect or congenital disease. Further, the examiner states that the "congenital" pes planus initially manifested (1) at birth, (2) during childhood, and (3) on 8/24/21 (which is date of the most recent exam). Only one of those can be true. In addition, the examiner does not state whether the Veteran's pes planus was resolved and asymptomatic pertaining to the Veteran's reported right foot plantar fasciitis. As such, this opinion is not responsive to the Board's July 2021 remand directives for a clear and detailed rationale, including a discussion of the supporting facts and medical principles. Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, even though the August 2021 VA examiner referred to the Veteran's bilateral pes planus foot disorder as congenital in nature, making no distinction whether it is a congenital defect or disease, the Board notes that a bilateral congenital disease could still be aggravated. Given the lack of clarity in the record, the Board will give the Veteran the benefit of the doubt and find that this disability is more similar to a disease, which is capable of worsening. Consequently, based on these facts, the Board has afforded the respective October 2018 and August 2021 VA examiner's opinions of record low probative weight. In particular, the Board finds that the VA examiner's conclusions do not rise to the level of "clear and unmistakable evidence" which is needed to overcome the high evidentiary burden to rebut the presumption of aggravation. The initial VA examiner's failure to take into consideration the Veteran's documented in-service complaints of left and right foot pain, and the second VA examiner's dismissal of such complaints on the basis that the Veteran's bilateral pes planus foot disorder is congenital in nature, without an adequate medical explanation for such a conclusion, does not satisfy the higher clear and unmistakable evidentiary standard required. Therefore, the Board finds that presumption of aggravation has not been rebutted and that service connection for the Veteran's left and right pes planus foot disorder based on aggravation is warranted in this case. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.