Citation Nr: 21077011
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 14-24 789
DATE: December 28, 2021

ORDER

Entitlement to service connection for bilateral hallux valgus is denied.

Entitlement to service connection for bilateral pes planus is denied.

FINDING OF FACT

The Veteran's bilateral hallux valgus and pes planus clearly and unmistakably existed prior to service and clearly and unmistakably were not aggravated by service.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hallux valgus are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304.

2. The criteria for service connection for bilateral pes planus are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty from May 1997 to March 2007.

These matters are on appeal from July 2011 and February 2014 rating decisions. The Board denied the claims for service connection for bilateral hallux valgus and pes planus in a June 2020 decision. In April 2021, the U.S. Court of Appeals for Veterans Claims (CAVC) issued an Order that granted a Joint Motion for Partial Remand (JMPR) and vacated the Board's June 2020 decision. The Board then remanded the case again for further development consistent with the JMPR in August 2021.

1. Entitlement to service connection for bilateral hallux valgus and bilateral pes planus

The Veteran contends that she has a bilateral pes planus and hallux valgus that are related to her service. As discussed below, the Board finds that entitlement to service connection is not warranted as the evidence clearly and unmistakably establishes that bilateral pes planus and hallux valgus preexisted the Veteran's active-duty service and was not aggravated by such service.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

VA law provides that a veteran is 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 an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 

To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. Id. at 240. However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996).

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. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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. Under 38 U.S.C. § 1153, the burden falls on the veteran to establish aggravation of the preexisting disorder. Id.; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); Crowe, 7 Vet. App. at 246. If the presumption of aggravation arises, the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. Wagner, 370 F.3d at 1096. 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).

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. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b).

Here, the Veteran has stated that her disabilities began in 1998 as a result of wearing the combat boots provided. See April 2016 VA examination. She denied having bilateral pes planus and hallux valgus prior to service but contends that her bilateral foot disabilities resulted from wearing military boots. See October 2019 VA examination.

The Board begins by finding that the Veterans bilateral pes planus and hallux valgus clearly and unmistakably preexisted service. The Veteran's service treatment records (STRs) show that on September 1996 service entrance examination, she was noted to have mild asymptomatic bilateral pes planus and mild hallux valgus that was not considered disqualifying. Accordingly, bilateral pes planus and hallux valgus are considered to have been noted at entrance and the presumption of soundness does not attach. As such, service connection for these disabilities may be considered only on the basis of aggravation during the Veteran's period of active service. See 38 U.S.C. § 1111; 38C.F.R. §3.304(b). 

Additional STRs show that in August 2004, the Veteran had a telephone consultation because her toenails were brown and thick. The Veteran denied drainage or trauma to them. In August 2005, the Veteran completed a post-deployment health assessment upon her return from Qatar. She denied having any current symptoms, or developing symptoms during her deployment, of swollen, stiff, or painful joints; or numbness or tingling in the hands or feet. She did report having symptoms of back pain and muscle aches, however. In August 2006, the Veteran was seen by chronic headaches. During this visit, a review of systems found that her feet showed no abnormalities. In January 2007, the Veteran completed a report of medical assessment wherein her past medical history was noted to include back and neck pain; bilateral feet pain was not mentioned. 

Following service, VA treatment records include an April 2010 report which indicates a diagnosis of bilateral bunions. At a June 2010 initial visit for painful bunionette to both feet, the Veteran stated that she developed the bunions in 1998 during service. She stated the bilateral bunions had progressively worsened over the past five years and prevented her from wearing standard shoes.

In September 2010, it was noted the Veteran presented with a history of developing brown toenails and bunions during service. In August 2011, she was seen for complaints of shooting pain to both big toe joints related to hallux valgus.

In an April 2011 VA foot examination, the Veteran presented with a primary complaint of pain in her great toe and both small toes with an onset around 1998 to 1999. She stated she started having pain in her feet and difficulty putting on her shoes. She described rubbing of the big and small toes against the sides of her shoes which caused calluses. The examining podiatrist diagnosed bilateral hallux valgus deformity and talus bunion deformity. After review of the STRs and a thorough examination of the Veteran, he opined that there were no in-service events or disease that could be found that could be attributed to her hallux valgus deformity or talus bunion deformity.

In February 2016 the Board remanded the claims for an opinion as to whether the Veteran's bilateral toot disabilities were incurred in or aggravated by her service.

At an April 2016 VA foot conditions Disability Benefits Questionnaire (DBQ) examination, the examining physician diagnosed bilateral pes planus and hallux valgus. The Veteran stated that her disabilities began in 1998 related to wearing boots. Her "pinky" toes rubbed against the boots causing blisters and she had issues wearing flat shoes and high heels. The examiner opined that the claimed disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examining physician also opined that the claimed disabilities, which clearly and unmistakably existed prior to service, were not aggravated beyond their natural progression by an in-service event, injury, or illness. The rationale provided for these opinions was that the Veteran clearly had mild pes planus and hallux valgus prior to service as noted on entrance examination. The examiner also found that there were no STRs which showed the disabilities worsened during service. Therefore, it was determined to be less likely than not that the current symptoms she experienced were related to her service.

In an April 2018 decision, the Board found the April 2016 examiner impermissibly relied on the lack of service medical records showing aggravation. The Board therefore remanded the claim for an opinion as to whether there was clear and unmistakable evidence that preexisting hallux valgus and pes planus were not aggravated during service and whether any increase in severity during service was due to the natural progress of the disorders.

Pursuant to the Board's remand, an October 2018 VA foot conditions DBQ examination was conducted. The Veteran was said to present with a history of a bilateral foot disability which started in 1998 related to wearing boots, stating that her "pinky toes" rubbed against the boot causing a blister and pain. She stated that in 2010, a VA podiatrist provided her inserts. After a thorough examination, the examining physician diagnosed bilateral flat foot (pes planus), hallux valgus, and hallux rigidus. The examining physician opined that the claimed bilateral pes planus and hallux valgus, which clearly and unmistakably existed prior to service, were not aggravated beyond their natural progression by an in-service event, injury, or illness. The rationale, in part, was that there was no documentation of pes planus or hallux valgus on separation examination. In addition, they noted STR records dated August 2006 indicated no feet abnormalities.

During an October 2019 VA foot conditions DBQ examination, the Veteran stated that she did not have flat feet or hallux valgus prior to service. Rather, she developed issues with her feet during service which resulted from wearing military boots. The examining physician stated that although the Veteran claimed she did not have flat feet or hallux valgus prior to service, Dr. A.F and Dr. F.X documented these conditions on her entrance examination. The examiner found it was clear and unmistakable that the Veteran's pre-existing conditions were not aggravated during service. The examiner's rationale was that although the Veteran stated she did not have hallux valgus or pes planus prior to service, it was documented on entrance examination that she had mild bilateral pes planus and asymptomatic hallux valgus. Additionally, there was no documentation in the STRs that she was treated for pes planus or for hallux valgus during service. The examiner noted that any increase in severity of hallux valgus or pes planus during service was due to natural progress of the disorder. The rationale was that there was insufficient evidence to determine whether the severity of the Veteran's hallux valgus or pes planus during service resulted from the natural progression of the hallux valgus and bunions, because there was no documentation in the service medical records that the Veteran was treated for either condition while on active duty. 

The Board denied the Veteran's claims for service connection in June 2020. That decision was appealed to the CAVC. The parties issued a JMPR in April 2021, finding that a remand was warranted because the October 2018 and October 2019 VA examiners impermissibly based their opinions solely on a lack of contemporaneous medical evidence and failed to consider the Veteran's lay statements. Pursuant to this JMPR, the Board remanded the claims in August 2021 for additional development. Specifically, the maters were remanded for an examination to determine whether the bilateral hallux valgus and/or pes planus underwent a non-temporary increase in severity during active service and whether there was clear and unmistakable evidence that the conditions were not aggravated beyond natural progression.

The Veteran underwent a September 2021 VA examination. The Veteran reported aching pain with prolonged standing and walking during active duty and attributed her foot pain to the boots she was required to wear in service. After a thorough examination, the Veteran was diagnosed with bilateral pes planus and bilateral hallux valgus, both dated to 1996. The examiner opined that these conditions were less likely as not incurred in or caused by the claimed in-service injury event or illness, highlighting that the April 2016 examiner noted pes planus and hallus valgus were present during enlistment, that a September 1996 STR showed the Veteran was noted to have mild pes planus and hallux valgus at enlistment, and that an August 2010 treatment record noted the Veteran's complaints of painful bunions to the bilateral feet. Based on these findings, the examiner stated there was no evidence of progression of foot pain that began during active duty service, as the earliest complaint of foot pain was in 2010. The examiner further opined the claimed conditions, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event or illness. The examiner's rationale noted the Veteran had clear and unmistakable evidence of the preexisting bilateral pes planus and hallux valgus. The examiner also acknowledged there was evidence to indicate the Veteran had continued to suffer from the disorder during service. However, the examiner stated this was typical of the condition and that the progression was not beyond normal progression for this disorder. The examiner found there was no evidence of permanent aggravation beyond normal progression identified. 

As a preliminary matter, the Board finds this examination is adequate as it did not impermissibly rely solely on a lack of contemporaneous evidence. In fact, the examiner acknowledged the Veteran's lay statements indicating she experienced pain associated with the conditions in service. However, the examiner found this was typical for the condition and not beyond the normal progression. The Board thus finds the examination in substantial compliance with the Boards August 2021 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order).

Considering the foregoing, the Board finds that the most probative evidence of record clearly and unmistakably shows that the Veteran's preexisting bilateral pes planus and hallux valgus were not aggravated by her active-duty service. Wagner, 370 F.3d at 1096; Horn, 25Vet. App.at 234. As noted, although the Veteran claims her bilateral foot conditions started in service, the medical evidence clearly shows the conditions preexisted service as they were noted on her September 1996 entrance examination. The STRs also show that despite multiple opportunities to complain about symptoms related to her feet, apart from the time where her toenail was thick and black, the Veteran did not seek treatment for the feet, although she did complain of and seek treatment for other musculoskeletal symptoms. To the extent the Veteran now asserts she also experienced feet symptoms in service, and that her bilateral foot conditions were aggravated by wearing military boots in service, these statements were considered by the September 2021 VA examiner who opined that her bilateral foot conditions pre-existed service and the pain in service was typical of the conditions and did not represent aggravation beyond the natural progression of the disease. The September 2021 VA examiner's opinion is based on an in-person examination, a review of the Veteran's claims file, and includes rationale for all opinions expressed. It is also supported by the opinions from prior VA examiners in April 2011, April 2016, October 2018, and October 2019. Significantly, there is no competent evidence (to include any medical opinions) to the contrary.

Although the Veteran has stated her bilateral hallux valgus and pes planus did not preexist service or were at least aggravated beyond its normal progression by the boots she was required to wear in service, she is not competent to make such a nexus determination. As previously emphasized, hallux valgus and pes planus were noted at the time of the Veteran's enlistment examination. As for whether these conditions were aggravated by her military service, the Veteran is competent to report observable symptomatology of her condition. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran is not competent to render an opinion as to the aggravation of her preexisting pes planus or hallux valgus as it is a medically complex question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board finds the September 2021 VA examiner's opinion to be more probative in this regard.

In light of the foregoing, the Board finds that service connection is not warranted for the Veteran's hallux valgus and pes planus. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Stuedemann, A.

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.