Citation Nr: 21066534 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-41 446 DATE: November 1, 2021 ORDER Entitlement to service connection for bilateral flatfeet with hallux valgus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's pes planus and hallux valgus began during or as a result of his active service. 2. The evidence shows that the Veteran's pes planus clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by in-service injury or as a result of any incident in service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral flatfeet with hallux valgus have not been met. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from August 1981 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2017 and June 2017 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a June 2020 hearing before the Board of Veterans' Appeals (Board). This issue was remanded by the Board in December 2020 and June 2021 for a VA medical opinion. The Board finds that the RO has substantially complied its remand directives, and the Board may now proceed with adjudication. 1. Entitlement to service connection for bilateral flatfeet with hallux valgus The Veteran asserts that his bilateral foot disability arose during or as a result of his active service or, if it preexisted service, then his condition was aggravated beyond its natural progression by service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Service connection requires evidence of: (1) a current disability (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that 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. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, the Veteran left service in August 1985 and filed a claim for service connection in February 2016. His service treatment records (STRs) are negative for complaints, treatment, or diagnosis for foot conditions. However, the June 1981 entrance medical examination does contain a handwritten note indicating that he was asymptomatic for a foot condition. He was treated for an ingrown toenail with no mention of any foot deformity such as hallux valgus or bunion. During the Veteran's May 2016 VA examination for foot conditions, the VA examiner noted a diagnosis for pes planus (flat feet) that dated to 1981 and a diagnosis for hallux valgus that dated to the examination. The Veteran reported that his feet conditions began during as a consequence of his service. The examiner found the Veteran's conditions less likely than not related to service. The examiner stated that there was insufficient evidence to establish that his hallux valgus deformity and pes planus were caused by or a result of military service. The evidence of record supported that the Veteran had asymptomatic pes planus prior to entry onto active duty in 1981. They stated that hyperpronation of pes planus can lead to hallux valgus deformity over time. The examiner also opined that the Veteran's pes planus clearly and unmistakably preexisted service. However, while they found his condition was not aggravated by service, they did not state whether that finding was clear and unmistakable. Accordingly, regarding the issue of whether the Veteran's foot disability preexisted service and, if so, whether it was aggravated by service, the Board lends the May 2016 VA examination report only limited probative weight. During the Veteran's June 2020 Board hearing, the Veteran testified that he did not have flat feet when he entered into service. He asserted that his foot conditions were caused by wearing boots that were too small for him, along with the rigors of service. In a January 2020 VA medical opinion, the VA examiner opined that the Veteran's pes planus clearly and unmistakably preexisted service. However, while they found his condition was not aggravated by service, they did not state whether that finding was clear and unmistakable. Accordingly, the Board lends the January 2021 VA medical opinion only limited probative weight. In a June 2020 private treatment record, the Veteran reported that his foot problems were caused by his active service, especially wearing boots that were too small and enduring long marches carrying heavy weight. In a July 2021 VA examination for foot conditions and accompanying addendum VA medical opinion, the examiner opined that the claimed conditions were less likely than not related to service. They noted that the Veteran's pes planus was noted on his entrance examination in 1981, but, at the time, it was asymptomatic. While hallux valgus was not noted on the same exam, it was also not noted during service or on discharge exam. Hallux valgus is a known compilation of pes planus and occurs due to hyper-pronation. The examiner concluded that his pes planus clearly and unmistakably preexisted active service. The condition of hallux valgus was a direct result of the pes planus and was not caused by military service. In summary, it was less likely than not that the Veteran's bilateral flatfeet with hallux valgus was incurred in or caused by military service. Second, the examiner opined that the Veteran's claimed pes planus clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by service. They stated that there was clear and unmistakable evidence of preexisting pes planus. Prior to service the condition was asymptomatic, and there was no evidence to support that the condition became aggravated or became symptomatic during service. During service, the Veteran did not have any documented complains regarding pes planus, and his discharge medical examination was negative for evidence of any complaints regarding any foot problems. While the Veteran did develop hallux valgus, a known complication of pes planus, later in life, there was no evidence of any treatment for chronicity regarding either pes planus or hallux valgus until the 2016 VA examination. There was also no evidence of aggravation beyond normal progression for this disorder. For these reasons, the examiner opined that the claimed bilateral flatfeet with hallux valgus clearly and unmistakably was not aggravated during service. The Veteran has maintained that his foot conditions were caused or aggravated by active service. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the VA examination opinions and medical evidence of record. The Board finds the preponderance of the evidence is against the Veteran's claim for service connection. First, the Board notes that the Veteran's STRs are negative for any evidence of complaints, treatment, or diagnosis for the claimed conditions, other than the entrance medical examination noting that the Veteran had asymptomatic pes planus. Second, the first documented treatment for foot conditions is in 2016, approximately 30 years after leaving active service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered as evidence against a claim of entitlement to service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Additionally, May 2016 and July 2021 VA examinations for foot conditions found the claimed conditions to be less likely than not related to service. No medical opinion supports the Veteran's claim. Based on these facts, the Board finds the preponderance of the evidence is against finding that his claimed conditions, pes planus and hallux valgus, began during or as a result of his active service. Next, the Board finds that the Veteran's pes planus clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by his active service. There is no objective medical evidence that the Veteran's hallux valgus preexisted service, and, as discussed above, the preponderance of the evidence indicates that the condition did not begin during or as a result of service, and it was most likely caused by his pes planus. Turning to the evidence of record regarding pes planus, the Veteran's entrance medical examination reflects the Veteran as being positive for asymptomatic pes planus at entrance into service. His STRs are otherwise negative for complaints, treatment, or diagnosis for foot conditions. There is no documentation of treatment for pes planus until 2016, approximately 30 years after service. The Veteran testified at his Board hearing that his pes planus began during service and was caused by his boots and the physical rigors of service. However, the July 2021 VA examination report did not support this conclusion. The July 2021 VA examiner found that his pes planus clearly and unmistakably preexisted service, there was no evidence of hallux valgus during service, that condition was most likely caused by his pes planus, and his pes planus clearly and unmistakably was not aggravated beyond its natural progression by service. No medical opinion or objective evidence supports the Veteran's claim. Accordingly, the Board finds the July 2021 VA examination report to be the most probative evidence of record regarding whether the Veteran's pes planus clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by his active service. Based on these facts, the Board finds that the Veteran's pes planus clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by his active service. Accordingly, the Veteran's claim for service connection for pes planus with hallux valgus is denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.