Citation Nr: 21077628 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-16 929 DATE: December 30, 2021 ORDER Entitlement to service connection for bilateral pes planus is granted. REMANDED Entitlement to a disability evaluation in excess of 10 percent for hypertension is remanded. FINDING OF FACT The most probative evidence of record indicates the Veteran's pes planus is etiologically related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to May 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in February 2021. The transcript is of record. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for bilateral pes planus 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, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The medical evidence in this case unequivocally shows the presence of pes planus during the current appeal period. Thus, the first element of service connection is satisfied. The Veteran avers that the condition did not pre-exist active duty service, and that it first developed therein. A review of service records supports the contention that the Veteran was free of a bilateral foot disability at entry. No such condition is reflected on the entrance examination, (which explicitly indicates "NO FLAT FEET," but service records shortly thereafter show fallen arches and numerous foot-related symptoms, which the Veteran now avers have been present since service. Based on the above, the Board finds that the evidence does not show, on a clear and unmistakable basis, that pes planus predated entry into active duty service. A private provider of the Veteran's stated in an October 2015 opinion letter based on familiarity with the Veteran's condition and a review of the medical record, that the Veteran's current foot problems began in service and are etiologically related thereto, emphasizing the absence of any notation of foot issues at entry in 1972. The opinion accords entirely with the objective evidence of record and the Veteran's credible account, for which reason the Board affords it substantial probative value. In contrast, the opinion of a VA examiner with whom the Veteran met in February 2016 is given less probative weight. That examiner indicated that pes planus was likely present on entry into active duty service, based on its diagnosis shortly after entry, and that symptoms related to the latent condition only manifested in service. However, this assessment does not accord due consideration to the absolute absence of evidence of any pre-existing condition, and the explicit notation on the Veteran's entry examination report, which report was produced pursuant to a contemporaneous physical examination. Thus, the Board finds the opinion unduly speculative and unsupported by the other evidence in this matter. Based on the foregoing, the Board finds that the evidence preponderates in favor of the claim, and the appeal for service connection will be granted. REASONS FOR REMAND 1. Entitlement to an increased evaluation for hypertension is remanded. The Veteran has averred that symptoms associated with his service-connected hypertension have worsened since he was last afforded a VA examination. Accordingly, the Board finds a new examination necessary to explore the current nature and severity of the Veteran's condition. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, obtain any outstanding VA and/or private treatment records relevant to the Veteran's claims. 2. Then, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected hypertension. The claims file should be made available to the examiner for review in connection with the examination. The examiner is asked to describe the current nature and severity of the Veteran's hypertension. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria. 3. Implement any necessary corrective procedures; then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.