Citation Nr: 21068897 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 16-19 227 DATE: November 15, 2021 ORDER Entitlement to service connection for bilateral flat feet is denied. FINDING OF FACT Clear and unmistakable evidence reflects that the Veteran's bilateral flat feet preexisted the Veteran's period of active service and that such disability was not aggravated by such service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral flat feet have not been met. 38 U.S.C. §§ 1110, 1111, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy Reserve from July 1984 to November 1984. The Veteran had additional periods of active duty for training (ACDUTRA) in November 1985, May 1987, and March 1988. He then served on active duty in the U.S. Navy from June 1988 to June 2008. In May 2021, the Board remanded the above issue for additional development. The case has since returned to the Board for appellate review. 1. Entitlement to service connection for bilateral flat feet is denied. The Veteran contends that he has bilateral flat feet that existed prior to service that was aggravated by his military service. The Veteran indicated that, when service in the Navy, his military occupational specialty was that of a cook, which required him to be constantly on his feet. See December 2019 VA examination. He reported that, at first, his foot pain was intermittent, but it gradually worsened. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. In the present case, no psychiatric disability was noted at the Veteran's entry into service, thus the presumption of soundness attaches. VA's Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant 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. In the instant case, the Board notes that the Veteran has a June 1984 diagnosis of bilateral flat feet. See August 2021 VA examination. As to whether the Veteran's diagnosis of bilateral flat feet preexisted the Veteran's active duty service, the August 2021 VA examiner noted that the Veteran's bilateral pes planus clearly and unmistakably pre-existed his military service. The examiner noted that a diagnosis of mild flat feet is noted at the time of the Veteran's enlistment exam to the Navy Reserves in June 1984. He entered active duty in 1988. The August 2021 VA examiner's opinion is probative as to the Veteran's bilateral flat feet preexisting service, particularly because the Veteran's preexisting bilateral flat feet diagnosis is listed in his service treatment records (STRs). Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board finds that the Veteran's bilateral flat feet preexisted his military service. Hence, the only remaining question is whether clear and unmistakable evidence indicates that the preexisting disorder was not aggravated by service. As to whether clear and unmistakable evidence indicates that the preexisting disorder was not aggravated by service, the Board notes that opinions were obtained in December 2019 and August 2021. In December 2019, the VA examiner opined that the Veteran's bilateral flat feet was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that, based on clear documentation of mild pes planus at time of enlistment in the Navy reserve, no evidence of complaints of foot pain on review of service treatment records, documentation of symptoms of foot pain on exit examination, initial documentation of complaints of mild left foot pain in May 2012, and clear documentation of symptomatic pes planus in an August 2014 primary care physician note, there is no evidence of an increase in disability during service. In August 2021, the examiner further concluded that his bilateral pes planus, which clearly and unmistakably pre-existed his military service, was not aggravated beyond its natural progression from military service. The examiner primarily based his opinion on a lack of medical evidence in support that his pes planus was a chronic or disabling condition during or immediately following military service. Specifically, the examiner noted that the first notation of foot pain appears in a May 2012 clinic note, years following his separation from service in 2008. The examiner also noted the Veteran's medical history of foot complaints following service. He also indicated that, when he complained of foot pain in 2012, the Veteran's occupation at the time was housekeeping, which he began in 2010. The examiner further noted his history of foot complaints following his May 2012 complaint. The examiner also noted that risk factors for the onset of this condition include but are not limited to wearing ill-fitting shoes, obesity, increased age and walking gait abnormalities. The examiner noted that the Veteran had a BMI of 41.4, placing him within the obese category. As to whether the Veteran's bilateral flat feet is otherwise related to his military service, the August 2021 VA examiner opined that the Veteran's bilateral flat feet was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The August 2021 VA examiner also concluded his pes planus was less likely than not incurred in or caused by the bilateral flat feet during service. The examiner noted that the medical record is silent for complaints of foot pain during military service. The examiner acknowledged that the Veteran complained of foot pain in September 1998. However, the examiner concluded that his complaint is not supported by the medical evidence of record. Specifically, following his September 1998 complaints of left hip, left lower leg, and left knee pain, he was evaluated for 3 weeks. The examiner noted that x-rays were ordered to evaluate for possible shin splints, but the x-rays results revealed a normal tibia and fibula. Moreover, his 2008 separation exam noted a complaint of a foot and hand rash during service; however, there were no complaints of foot pain. The Board finds the December 2019 and August 2021 VA opinions, taken together, probative. The examiners reviewed the evidence, to include his STRs, examined the Veteran, considered the Veteran's lay statements, and rendered the opinion based on the record, the examination, and the examiner's training and experience. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his bilateral flat feet is related to his active service, to include his duties as a cook while in service. However, in the absence of a finding of aggravation of his pre-existing bilateral flat feet disability during service, there is no in-service event or injury which could serve as the in-service incurrence upon which a nexus could be based. Thus, regardless of the Veteran's assertions, there is no in-service incurrence to tie to his diagnosed bilateral flat feet condition. Moreover, the Board finds that even assuming there was an in-service event or injury, which there is not in this case, the Veteran is not competent to provide a nexus between his bilateral flat feet and his active service. The relationship between his flat feet and events in service is not something that can be determined based solely on observable symptoms. It takes training and medical knowledge that a lay person such as the Veteran does not have. Therefore, it is outside the competence of the Veteran in this case, because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). To the extent that the Veteran is asserting that his pre-existing bilateral flat feet was aggravated during service, the Board finds that the VA examiner's August 2021 opinion is the most probative evidence on this question. The examiner reviewed the evidence and rendered the opinion based on the record and the examiner's training and experience. Consequently, the Board gives more probative weight to the August 2021 opinion. In light of the above, the Board finds that clear and unmistakable evidence reflects that the Veteran's bilateral flat feet preexisted the Veteran's period of active service and that such disability was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Accordingly, the claim must be denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.