Citation Nr: 21071837 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-51 215 DATE: December 1, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. FINDING OF FACT The record reflects that the Veteran's bilateral pes planus existed to prior to active military service, and the evidence does not reach the level of equipoise as to whether the disorder increased in severity during service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1997 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). This matter has a procedural history dating back to 2013. Most recently, in April 2019, the Board remanded this matter for an addendum VA examination and medical opinion regarding whether the Veteran's pre-existing pes planus was aggravated by military service. The Veteran appeared for a VA examination in October 2019. After reviewing the examination report and medical opinion, the Board finds that there is substantial compliance with the prior remand directives. Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every person employed in the active service is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment. 38 U.S.C. § 1111. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute notation of such condition. Id. at 240. However, the disease does not need to be symptomatic at the time of the evaluation. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996). If the presumption of soundness does not attach, the claim may still be subject to the presumption of aggravation under section 1153. A preexisting injury or disease will be considered to have been aggravated by active military, naval, air, or space 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. The Veteran bears the initial burden of establishing a permanent worsening of the disability during service to an equipoise standard. Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, may not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the evidence establishes that a pre-existing disability worsened during a period of qualifying service, then the presumption of aggravation attaches. To rebut the presumption, VA must show by clear and unmistakable evidence that worsening is due to the natural progress of the disability. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Clear and unmistakable evidence has been defined as evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). 1. Entitlement to service connection for bilateral pes planus The Veteran was noted to have asymptomatic bilateral pes planus on his military enlistment examination in September 1996. His pes planus is considered to have been noted at entry to service, and the presumption of soundness does not attach. See Crowe, 7 Vet. App. at 245. Therefore, the first question is whether there was an increase in severity of the pre-existing pes planus disorder during service. The Veteran sought treatment for foot pain during service in August 1999. He reported a history of intermittent pain for the last year and a half, triggered by prolonged standing, and varying from lasting all day every day to periods of no pain at all. He reported that his last episode was one month ago. A physical examination showed no redness or swelling, points to dorsal and plantar 1st metatarsal, and gait pronated through midstance. X-rays confirmed pes planus but were otherwise within normal limits. The clinician assessed pes planovalgus with a mild hallux valgus deformity, and no tenderness to palpitation or pain on range of motion. He recommended that the Veteran rest and follow-up in a few months. The record does not show further treatment or reports of pes planus during military service. A separation examination report was not observed in the claims file, and it is unclear if one was performed. However, the Veteran was evaluated by a pain management specialist, Dr. R.R., in August 2003. Dr. R.R. examined the Veteran and found that his extremities were without clubbing, cyanosis, or edema, deep tendon reflexes were +2/4 in the lower extremities bilaterally, sensory examination showed intact in bilateral extremities, and heel and toe walk was within normal limits. Dr. R.R. did not document any impairment associated with pes planus at that time. Dr. R.R. performed another physical examination in February 2004. He did not document any symptoms or impairment related to pes planus, hallux valgus, or any other disorder of the feet. The Veteran appeared for a VA examination in October 2019. The examiner diagnosed bilateral pes planus and hallux valgus. After reviewing the claims file, she opined that: "the bilateral asymptomatic pes planus was present prior to enlistment into active duty service in 1996, but Veteran developed intermittent bilateral foot pain (localized to the 1st metatarsal area) in 1999 with conservative measures resulting in apparent improvement. No further mention of foot pain is documented from 1999 through separation from service in 2005 to establish any chronicity of symptoms during military service. Current x-ray and exam findings do not support a progression of Veteran's pes planus deformity over time that would support a permanent aggravation or worsening of the condition that would be related to the foot pain symptoms during active duty." The examiner further explained that the Veteran's hallux valgus deformity was initially notated in the 1999 note during active duty. She found that the localization of the foot pain at that time to the 1st metatarsal region is consistent with hallux valgus/bunions as opposed to the midfoot pain that is characteristic of pes planus. She noted that the Veteran reported right greater than left forefoot symptoms consistent with hallux valgus/bunions. Based on the evidence, the examiner found that the Veteran has mild bilateral hallux valgus deformities which are at least as likely as not due to the foot pain/hallux valgus deformities noted during service. The Board has reviewed the remainder of the Veteran's VA and private medical records. Such records do not show evidence of aggravation of a pes planus disorder as a result of military service to the extent necessary for service connection. After careful review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's pre-existing pes planus was aggravated beyond its natural progression by his military service. The October 2019 VA examiner found that the evidence did not support aggravation or worsening of the condition over time that would be related to the symptoms of foot pain during military service. She provided a persuasive opinion based on her review of the medical evidence and professional expertise. Her findings are afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consideration has been given to the Veteran's complaint of foot pain during service and the in-service assessment of pes planovalgus. However, intermittent flare-ups of pain are not considered to be aggravation unless the underlying condition is worsened. See Hunt, 1 Vet. App. at 297 ("temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened"). The medical evidence has found that the Veteran's foot symptoms during service were due to hallux valgus/bunions, and are not reflective of a worsening of the pre-existing pes planus condition. The Board also notes that the Veteran did not report painful feet to Dr. R.R. during his pain management consultation or upon physical examination of his extremities, which weighs against a finding of worsening. The October 2019 VA examiner opined that the Veteran's hallux valgus is related to military service. The AOJ has already granted service connection for hallux valgus of the bilateral extremities. See Rating Decision Narrative, June 2020. If the Veteran wishes to file a claim for an increased rating for his hallux valgus of the bilateral extremities, he remains free to do so by submitting the appropriate form prescribed by the Secretary. 38 C.F.R. § 3.155. The Board has considered the Veteran's lay statements. However, the ability to determine whether pre-existing pes planus worsened beyond its natural progression during service requires complex medical knowledge of the musculoskeletal system and relevant biomechanical processes that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board affords higher probative weight to the competent medical evidence. In sum, the evidence does not show to an equipoise standard that the Veteran's pre-existing pes planus was aggravated by active military service. The presumption of aggravation does not attach. See Donnellan, 24 Vet. App. at 173-75. An essential element of service connection has not been met. The appeal is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.