Citation Nr: 21070728 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-40 697 DATE: November 24, 2021 ORDER Entitlement to service connection for bilateral foot disorder, to include pes cavus is denied. FINDINGS OF FACT 1. Bilateral pes cavus was identified at entrance to service and did not increase in severity beyond its natural progression during service. 2. The preponderance of the evidence fails to link in-service foot complaints to currently diagnosed foot disabilities. CONCLUSION OF LAW The criteria for service connection for bilateral foot disorder, to include pes cavus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1983 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in October 2016. A transcript of the hearing is in the Veteran's file. This matter was previously before the Board in February 2019 and April 2021, at which time it was remanded for further development. That development having been completed; this claim is once again before the Board. Entitlement to service connection for bilateral foot disorder The Veteran contends her bilateral foot disorders, to include pes cavus, hallux valgus, and hammertoes are due to 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. 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). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 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 The Veteran's October 1982 entrance examination reveals a notation of pes cavus. 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 the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. 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). The Veteran contends she had complaints of foot pain starting with basic training. She states she was put on light duty due to not being able to march, run or do PT. She injured her right foot in October 1984 when she slipped on ice and fell down some steps. X-rays were negative and she was diagnosed with tendonitis related to her right ankle. In March 1985, she had complaints of pain in her feet and was diagnosed with plantar fasciitis. Due to her complaints of foot pain, she was relieved from performing PT. She was given another MOS and was able to be off her feet. She was eventually discharged for failure to meet body fat standards. The August 2016 VA examiner noted that the Veteran's in-service plantar fasciitis was an expected consequence of pes cavus, which is widely noted in medical and orthopedic literature. The mechanism is due to having a shortening of the plantar fascia which is placed under constant tension. The examiner went on to remark that although it could be considered speculation to address whether pes cavus was aggravated by service because he was observing it decades after service, he offered it was less likely than not given that she only spent 2 years in service. He indicated it would be the 30 years plus post service activity which would more likely account for the "fairly severe" condition he was observing at the time of the examination. The December 2019 VA examiner found that the Veteran's preexisting bilateral pes cavus was not aggravated during service. The examiner found that she spent little time marching, running or doing PT while in service to aggravate her pes cavus. Although she had injuries involving her feet, including sprains and tendonitis, they resolved with no residuals. There was no follow up care noted prior to her April 1985 discharge nor a year after discharge. She was diagnosed with plantar fasciitis in March 1985, but it was an acute episode that was treated and resolved with no follow up care. The examiner opined that it is less likely as not that her pre-existing bilateral pes cavus increased in severity beyond its natural progression during the Veteran's period of active service. The Board finds the record does not demonstrate worsening of the Veteran's pes cavus in-service. While plantar fasciitis was related to her pes cavus, it is a distinct disability and was not diagnosed when examined in connection with the current claim. All this supports the VA examiners determination it did not worsen her pes cavus. Likewise, her other foot injuries were considered acute and also resolved by discharge. As the most competent and credible evidence of record does not show an increase in the severity of pes cavus during service, the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran's pre-existing pes cavus was not aggravated by military service entitlement to service connection for this condition must be denied. The Veteran has also been diagnosed to have other foot disorders, to include hallux valgus and hammertoes. She was also found to have related degenerative changes to her metatarsophalangeal joints, including joint fusion. She alleges that her current foot disorders are related to her in-service complaints of foot pain. The August 2016 VA examiner noted that the Veteran's hallux valgus is not an expected consequence of pes cavus, and there is no evidence of hallux valgus in the military. He also observed that there was no presence of other identified conditions causing chronic functional loss during service, although it may be a natural consequence of pes cavus. The December 2019 VA examiner noted that the Veteran's hallux valgus was not shown or diagnosed in service. Hallux valgus was also not evidenced in the separation exam and therefore, it is not related to any foot complaints in service. The examiner explained that hallux valgus deformity has a gradual onset, is more common in women, may be hereditary and the most common cause is relative to ill-fitting footwear. Similarly, hammertoe was not seen in service and not related to any foot complaints in service. Hammertoes result from a muscle imbalance and may be inherited or due to arthritis, with the most common cause relative to ill-fitting footwear. The Veteran's plantar fasciitis that did occur while in the military was an acute, one time episode that resolved with no additional follow up. The examiner reasoned that since hallux valgus and hammertoes did not occur during service, there is no relationship between them and plantar fasciitis or pes cavus. He opined that it is less likely than not hallux valgus and hammertoes had their onset in service or are related to any foot complaints noted in service. The in-service foot complaints were also not early manifestations of hallux valgus or hammertoes. In a May 2021 medical opinion, the examiner noted that pressure from the way one walks (foot mechanics), or the shape of the foot (foot structure) causes the big toe to bend inward and happens gradually over time. Standing for long periods and wearing ill-fitting, narrow shoes can make the pain worse, but do not cause the problem. Risk factors include family history due to inherited foot structure problems, foot injuries and inflammatory diseases. Hallux valgus increases noticeably with age. Regarding hammertoes, the examiner stated that they are a deformity that occurs due to an imbalance in the muscles, tendons, or ligaments. Wearing shoes that do not fit properly is a common cause of this imbalance. Foot structure and certain disease processes can contribute to the development of these deformities. Further, risk factors include increased age, gender, toe length, heredity, and certain diseases such as arthritis and diabetes, which might make one more prone to developing foot deformities. The examiner also stated that there were no complaints or treatments for foot pressure points, corns or calluses on the toes, balls of feet or any toe joint, decrease in flexibility, redness or swelling to toe joints, misshapen toe, or ill-fitting footwear during military service. The Veteran's in-service foot conditions were treated and resolved. The examiner noted the Veteran did not submit any supportive records for the past 33 years for treatment of a toe or foot condition. Further, while she had several in-service complaints regarding her feet, there is no supportive objective evidence of signs of initial onset of hallux valgus or hammertoes during service. The Board acknowledges the Veteran's statements that she injured her feet during basic training and has had problems since that time. Lay persons are competent to report observable symptoms, such as problems since military service. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which she had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994). In this case, although the Veteran is competent to report an injury in service and symptoms since that time, the Board finds that such statements are in essence attempts to draw medical conclusions by Veteran, who has no medical expertise. Service records do not reveal the presence of the claimed disabilities at service separation, when her feet were normal on clinical evaluation, and she is not shown competent to diagnose the claimed conditions, or attribute a particular symptom to a particular diagnosis. For these reasons, the Board concludes that the weight of the evidence shows that a bilateral foot disorder did not manifest in service or for many years thereafter. There is no medical opinion otherwise relating a current bilateral foot disorder to the Veteran's military service. The Board finds that the December 2019 and May 2021 VA examiners' opinions are the most probative evidence, as they were based on a review of the claims file, including the Veteran's own reported history and lay statements, and are supported by rationale. The VA examiners also relied on their own knowledge, training, and expertise as medical professionals. The Board finds that the preponderance of the evidence is against granting service connection for a bilateral foot disorder, to include pes cavus. See 38 C.F.R. § 3.303(a). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.