Citation Nr: 21068509 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 20-15 008 DATE: November 10, 2021 ORDER Service connection for bilateral pes planus (flat feet) is granted. Service connection for left eye glaucoma is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his pre-existing pes planus was aggravated by service, and there is no clear and unmistakable evidence that the aggravation was due to the natural progression of the disability. 2. The preponderance of the evidence is against finding that the Veteran's left eye glaucoma began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus are met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. 2. The criteria for service connection for left eye glaucoma are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1961 to October 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was scheduled to appear at a Board hearing in October 2021. That same month, and before the hearing date, the Veteran withdrew his hearing request. In October 2021 the Veteran submitted a VA Form 10182 Decision Review Request to switch the case to a Direct Docket under the AMA. The submission is not timely in that it was not filed within 60 days of the February 2020 statement of the case, and the appeal had already been docketed as a legacy case in May 2020. Consequently, the case will remain in the legacy appeals process. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for 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, 1166 -67 (Fed. Cir. 2004). Service connection for bilateral pes planus (flat feet) is granted. Claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated therein. 38 U.S.C. § 1137; 38 C.F.R. § 3.304 (b). Only such conditions as recorded on examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b); Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (The presumption of soundness only attaches where there has been an induction examination in which the later-complained-of disability was not detected) (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). In instances where the presumption of soundness does not attach and the disability in question is determined to be a pre-existing condition, service connection may be awarded where the disability is shown to have been aggravated by active service. 38 C.F.R. § 3.306 (a). 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). Temporary or intermittent flare-ups during service of a pre-existing condition are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, has worsened. Crowe, 7 Vet. App. at 247-48. The Veteran's February 1961 pre-induction medical examination report indicates that the Veteran had pes planus. Thus, the condition was "noted" upon entrance into service, and the presumption of soundness does not attach, and it does not need to be rebutted. 38 C.F.R. § 3.304; see VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004). A Veteran's preexisting injury or disease, however, will be presumed to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). "The clear-and-unmistakable-evidence standard is an 'onerous' one... and requires that the no-aggravation result be 'undebatable.'" Cotant v. Principi, 17 Vet. App. 116, 131 (2003). The Veteran bears the initial burden of establishing that a worsening of a disability or disease occurred in service. If the Veteran is successful, the presumption of aggravation attaches, and the burden shifts to the VA to demonstrate by clear and unmistakable evidence that any worsening is attributable to the natural progression of the disability. Service treatment records reflect that upon entry into service, the Veteran's pes planus resulted in no current disability. During service, the Veteran sought treatment for pes planus on multiple occasions in November 1961. The July 1963 separation examination yielded normal findings. However, the Veteran completed a Report of Medical History in conjunction with the separation examination. In it, he reported foot trouble, and that his arches were painful with long hikes. The Veteran sought treatment for pes planus again in August 1963. He reported difficulty running and controlling his feet; and he reported that his feet hurt ater prolonged marching. He was referred to the orthopedic clinic for evaluation and arch supports. In September 1963, he continued to report that his feet hurt after prolonged standing. He was assessed with mild pes planus. Despite the normal separation examination (which was performed four months prior to the Veteran's separation from service), it is clear that the Veteran's preexisting disability was aggravated during service. Upon entry into service, he was noted to have pes planus. However, the notation was followed with "NCD [no current disability]. During service, the Veteran reported painful arches and symptoms of pes planus on numerous occasions. He was assessed with mild pes planus, and he was prescribed arch supports. The change from "no current disability" to "mild" pes planus represents a degree of aggravation sustained during service. Consequently, the Veteran met his initial burden of showing that a worsening of a disability or disease occurred in service. The burden then shifts to the VA to demonstrate by clear and unmistakable evidence that any worsening is attributable to the natural progression of the disability. The Veteran underwent a VA examination in October 2019. The examiner noted that the Veteran complained of bilateral foot pain after running and marching on 11/9/1961, 11/15/1961, 8/16/1963 and then 9/11/1963, where he was noted to have mild bilateral pes planus. The examiner opined that the Veteran's pes planus is still considered mild. He then opined that it would be less likely than not that the Veteran's pes planus was aggravated beyond it's normal progression by his active duty military service. The VA has failed to demonstrate by clear and unmistakable evidence that the worsening of pes planus is attributable to the natural progression of the disability. Not only did the VA examiner use the wrong standard ("less likely than not"), but the rationale does not make sense. The fact that the severity of the pes planus increased from "no current disability" to "mild," and the pes planus remains mild indicates that the aggravation was indeed permanent. In giving the benefit of the doubt tot the Veteran, his preexisting condition was aggravated during service, and there is no clear and unmistakable evidence that the aggravation was due to the natural progression of the disability. Consequently, service connection for bilateral pes planus is granted. Service connection for left eye glaucoma is denied. The Veteran contends that his left eye glaucoma is the result of a concussive injury to the eye from an in-service tank accident. (See Cleveland Clinic report). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of left eye glaucoma, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of left eye glaucoma began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records fail to reflect any findings attributable to an eye injury. The Veteran's July 1963 separation examination yielded normal findings. The Veteran completed a Report of Medical History in which he denied any eye trouble. Although the separation examination occurred four months prior to service, there are treatment records that post-date the separation examination, and they likewise fail to reflect any findings attributed to an eye injury. There is no mention of a tank accident. The Veteran submitted a June 2017 private treatment report from Cleveland Clinic. The examiner stated that the Veteran has glaucoma in his left eye resulting from an afferent pupil defect. He then stated that the Veteran has a history of a concussive injury to the eye in the past from a tank accident which "may have caused this problem which contributes to loss of vision in the eye." The Veteran, in a July 2017 correspondence stated that he was not aware of any problem until today. Consequently, there is no contention regarding recurrence of symptomatology since service discharge. Instead, the Veteran submitted an article from the Mayo Clinic that states that glaucoma can have no warning signs, so that you may not notice a change in vision until the condition is at an advanced stage. The article also stated that even with treatment, about 15 percent of people with glaucoma become blind in at least one eye within 20 years. The Board notes that the VA did not provide the Veteran with a VA examination for the purposes of determining the etiology of his left eye glaucoma. In light of the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is not required. McLendon provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case as the evidence of records fails to suggest that left eye glaucoma, first reported many years after service, had its onset in service or is otherwise related thereto. The service treatment records fail to reflect any eye injury or tank accident. To the extent that the private examiner attributed the Veteran's left eye glaucoma to service, he based his opinion solely on the unsubstantiated history provided by the Veteran. Moreover, the examiner merely stated that the alleged in-service injury "may have caused" the Veteran's glaucoma. A medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship. Obert v. Brown, 5 Vet. App. 30, 33 (1993). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Finally, the Veteran noted in his notice of disagreement that symptoms may not arise for many years after service, and that people with glaucoma may become blind 20 years after having it. In this case, the Veteran was completely asymptomatic until 2017. This would have been at least 54 years after the alleged tank accident. In the absence of any in-service findings of either an eye injury or a tank accident, and without a competent nexus opinion linking the Veteran's current disability to service, the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against finding claim, the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.