Citation Nr: 21067994 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 13-15 146 DATE: November 8, 2021 ORDER Entitlement to service connection for right-foot pes planus is denied. FINDING OF FACT The preponderance of the evidence does not support that the Veteran's current right-foot pes planus either was directly incurred in or caused by service, or was aggravated during service, to include wearing a cast on his right foot following in-service surgery. CONCLUSION OF LAW The criteria for service connection for right-foot pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in July 2021 the Board most recently remanded the matter for an addendum etiology opinion. As there has been compliance with the directives of that decision, the Board may now adjudicate the claim on the merits. See Dyment v. West, 13 Vet. App. 141, 14647 (1999). The Veteran seeks service connection for right foot flatfoot, which he contends is due to four months of wearing a cast on his right foot during service following surgery on his right great toe. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, where a preexisting condition is noted at the time of entrance, service connection is warranted where the evidence establishes that the preexisting disability was aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Turning to the evidence, the Board notes that on the Veteran's December 1989 entrance examination, the clinician made a handwritten note associated with an abnormal finding of the feet. The note, while not clearly legible, was interpreted by clinicians in February 2011 and October 2020 as "pes planus." Notwithstanding, the February 2011 examiner stated he was "unsure if [the] examiner meant pes planus" as the "[o]ther entry claims foot problems" and the "[o]nly entries in S[ervice] T[reatment] R[ecords] is for hallux malleus." Moreover, in an August 2021 opinion, the clinician found that because "podiatry consults in 2003 and 2004 were silent for pes planus[,] this serves as almost unequivocal evidence that the Veteran did not develop pes planus until after 2004." Because the evidence shows that the Veteran currently has a diagnosis of right-foot pes planus, in order to warrant entitlement to service connection, what remains to be established is a connection to service. Based on the entrance examination notation that has been subject to differing interpretations by the clinicians who have reviewed it, there is an ambiguity as to whether this condition preexisted service, and as stated in the recitation of law above, the proof required to establish a nexus to service varies depending on whether the condition preexisted service. In the event that the condition did not preexist service, evidence that the current condition was incurred in or is otherwise related to service is required to establish service connection. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In the event that the condition did preexist service, evidence that the current condition was aggravated by service is required to establish service connection. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. After review of the record, the Board finds that the preponderance of the evidence is against a connection to service under either theory of entitlement. Regarding a direct connection to service, in the most recent August 2021 addendum opinion the clinician opined that the right-foot pes planus "is not related to having been casted for surgery." Based on his review of the Veteran's medical history and treatment records, the clinician explained that because podiatry examinations in 2003 and 2004 did not find pes planus at that time, it is more likely than not that the Veteran's pes planus developed after service. He explained that "[t]he Veteran's diagnosis would, by definition, be acquired pes planus, which most commonly is due to posterior tibialis tendon dysfunction. It occurs naturally over time with age." The Board acknowledges the Veteran's assertions, to include his February 2012 notice of disagreement and testimony at a December 2016 Board hearing, that wearing the cast caused "constant wear and tear and walking at an odd angle" and that the cast "did not support [his] arch [and] is the cause of the pes planus right foot." There is not any evidence of record, however, to show that the Veteran has the requisite education, training, or experience to opine on the etiology of pes planus, which is a medically complex issue beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Regarding aggravation during service, in a May 2021 opinion the clinician, after review of the Veteran's medical history and treatment records, opined that there was less likely than not aggravation of the Veteran's pes planus during service if it preexisted service. Though the clinician acknowledged the Veteran's report of lack of arch support when he was wearing the cast, the clinician found that due to "the rigid nature of a cast, which is formed to the foot allowing only enough room to prevent undue pressure and restrict circulation, . . . the cast would be rigidly supportive of the arch"; the clinician explained that instead "[i]t is more likely that the complaints of the pain along the sole of the foot was directly related to the cast itself or the post-operative state" rather than due to aggravation of pes planus. Based on the Veteran's statements, the medical history including the history of podiatry visits in 2003 and 2004, and the beginning of symptomatology in 2011 for which treatment was sought, the examiner found that it is more likely that the condition was not permanently aggravated during service and developed only after service. Thus, as the most probative evidence of record supports that the Veteran's right foot pes planus either was not directly related to service if it did not preexist service, or was not aggravated during service if it did preexist service, the evidence is insufficient to establish that his current condition is connected to service, to include wearing the cast or boot following in-service surgery. (Continued on the next page) Accordingly, with the preponderance of the evidence against a nexus to service, entitlement to service connection for right-foot pes planus must be denied. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.306. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.