Citation Nr: 21068203 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-09 320 DATE: November 9, 2021 ORDER The claim of entitlement to service connection for a bilateral foot disability is denied. FINDING OF FACT The Veteran's bilateral foot disability existed prior to service and the condition was clearly and unmistakably not aggravated beyond its normal progression by service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Coast Guard from March 1981 to June 1990. In March 2019, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing. A transcript of the proceedings has been associated with the record. This matter comes before the Board of Veterans' Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded the issue back to the RO for additional development, to include obtaining outstanding treatment records and to obtain an addendum opinion to assess any in-service worsening of the Veteran's preexisting bilateral foot disability. The Board concludes that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. The claim of entitlement to service connection for a bilateral foot disability. The Veteran contends that her bilateral foot disabilitybilateral pes planus with metatarsalgiawas aggravated by her active duty service. For the reasons outlined below, the Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to service connection for aggravation of her bilateral foot disability. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). Further, in Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder but may bring a claim for service-connected aggravation of that disorder. In such a case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish an increase in disability during service. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such 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(a). In other words, if the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). In this case, the Veteran's November 1980 entrance examination reveals a notation of five-inch surgical scars on both feet. Her enlistment examination includes the Veteran's report that she had surgical repair of pes planus at age 12. The Veteran noted having "foot trouble" on her report of medical history at enlistment. As such, the question for the Board becomes whether there is a showing of an increase in the severity of the noted preexisting disability during service, and whether any increase is clearly and unmistakably not attributable to the Veteran's active service. A March 1981 service treatment record (STR) appears to indicate that the Veteran had experienced bilateral foot swelling; however, the Board notes that this note was made during a pre-training physical examination and the Veteran was determined to be qualified for training and active service. In April 1981, she complained of a corn or callus on her left foot. In a January 1988 report of medical history for extension of service, the Veteran endorsed having "foot trouble," which was described as having had "foot surgery in the '70s.'" In a January 1989 report of medical history for extension of service, the Veteran did not endorse having foot trouble, and this record again includes a notation that she had a history of "surgery on feet no arch." No other symptoms of bilateral foot pain were noted in that record and the contemporaneous report of medical examination, likewise, identified no issues or complaints relating to the Veteran's feet. In her October 1989 report of medical history for discharge, the Veteran again denied having current foot trouble (with notation again of past foot surgery), and no acute problems were noted by the reviewing clinician in this record or in the contemporaneous report of medical examination. November 1989 records reflect a diagnosis of mild degenerative arthritis in the spine and limbs. In April 1990, the Veteran was diagnosed with pes planus with metatarsal osteoarthritis, and she reported swelling in her feet. The Board finds this evidence to show that there was an increase in the severity of the Veteran's bilateral foot condition during service. As such, the presumption of aggravation attaches. Given this increase, in order to rebut the presumption of aggravation, there must be clear and unmistakable (obvious or manifest) evidence that any increase in the Veteran's disability was the result of natural progression. 38 C.F.R. § 3.306. As the Board noted in its prior remand, the evidence of record includes an incomplete December 1990 VA examination, where the Veteran reported pain in her feet since 1986. The Veteran testified to the Board that she had ongoing foot pain during her active service and her opinion that her active service aggravated her condition. The record also contains an April 2014 VA examination and corresponding opinion that the Board found insufficient for adjudicative purposes due to factual discrepancies in the clinician's report. As such, the April 2014 examination opinion is not probative, and the Board will address it no further. Following the Board's remand, a medical examiner opined in February 2020 that the Veteran's bilateral foot condition, "which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The clinician explained that there was evidence to show that the Veteran continued to suffer from her preexisting pes planus disorder during service, as evidenced by treatment for pre-existing callus, which is typical of the condition. The clinician reviewed the Veteran's STRs, noting specifically that in one record, the Veteran complained of left foot pain from a contusion, with no evidence that it was related to her pes planus. The clinician acknowledged that by the end of her service, the Veteran did have a diagnosis of arthritis in her feet. However, the clinician ultimately opined that such a progression was "not beyond normal progression for this disorder" in that the "diagnosis of arthritis is an expected progression of foot surgery for the pre-existing pes planus." The clinician identified no evidence of permanent aggravation by the Veteran's active duty beyond normal progression. The Board finds this opinion probative, as the clinician noted her consideration of lay and medical evidence of record, referred to pertinent medical research relating to the Veteran's conditions, and provided a reasoned explanation for her conclusions. The Board acknowledges that during her March 2019 hearing before the Board, she reported frequent pain in her feet beginning during recruit training, that she wore ill-fitting combat boots throughout service, and she stated that she sought treatment for her foot pain. While the Veteran is competent to testify to her observations, the evidence of record does not show that the has the medical training or expertise to opine as to the progression of her post-surgical repair of pes planus. As such, the Board attributes more weight to the credible and persuasive medical opinion of record. As such, the Board finds that there is evidence that the increase in severity of the Veteran's bilateral pes planus during service was clearly and unmistakable due to the natural progression of the disease. As such, the presumption of aggravation has been rebutted and entitlement to service connection must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.