Citation Nr: 21007632 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 18-32 945 DATE: February 10, 2021 ORDER Service connection for the cause of the Veteran's death is withdrawn. Death and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is withdrawn. DIC under 38 U.S.C. § 1151 is withdrawn. Service connection for a foot disability is granted. FINDINGS OF FACT 1. At the January 2021 hearing before the undersigned, the appellant withdrew her appeals seeking service connection for the cause of the Veteran’s death and DIC under 38 U.S.C. §§ 1151 and 1318, unambiguously, and with a full understanding of the consequences; there are no further allegations or questions or factual or legal error remaining for appellate consideration. 2. The Veteran’s private treatment records include January 2016 left foot X-rays confirming a left foot pes planus deformity and a contemporaneous left foot MRI showing “multifocal midfoot arthrosis” (which medical sources indicate is another term for osteoarthritis). 3. Although the Veteran and the appellant have indicated that he had pes planus at enlistment, his enlistment examination itself is silent for such condition and, as subjective histories alone are insufficient to rebut the presumption of soundness, he must be considered physically sound at entry into service. He also provided competent statements, corroborated by his wife’s sworn testimony indicating he experienced foot pain throughout active and National Guard service. 4. Finally, he also provided competent and credible statements that his foot pain and associated problems like calluses, gait deformity, and weakness (among others) persisted post-service and worsened despite trying varying kinds of treatment over the years. His wife also corroborated those reports in her sworn testimony before the undersigned. Considering the above, the Board finds the evidence is at least in relative equipoise as to whether symptoms of a left foot disability (variously diagnosed as pes planus and midfoot arthrosis) began in service and persisted thereafter. CONCLUSIONS OF LAW 1. The criteria for withdrawal of service connection for the cause of the Veteran's death, DIC under 38 U.S.C. § 1151, and DIC under 38 U.S.C. § 1318 by the appellant (or his or her authorized representative) are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a foot disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1979 to March 1980 with subsequent National Guard service through December 1983. These matters are before the Board of Veterans’ Appeals (Board) on appeal from May 2017 and January 2018 rating decisions appealed in timely June 2017 and August 2018 notices of disagreement (NODs). The Veteran died in June 2017 and the appellant was substituted in his foot disability appeal. She perfected the issues on appeal in June 2018 and March 2019 substantive appeals in response to May 2018 and March 2019 statements of the case (SOCs), respectively. In January 2021, a hearing was held before the undersigned. Although the Veteran initially characterized his service connection claim as one for bilateral flat feet, a review of medical records shows additional foot conditions warranting expansion of that claim to include any foot disability pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (holding that the Board must consider the nature of the Veteran’s claimed condition when assessing the breadth of any particular claim, particularly when he or she is not competent to specify what disability they may have). For the reasons outlined above, the Board dismisses the appeals relating to the Veteran’s death as withdrawn and grants service connection for a foot disability in full, obviating any need for further detailed discussion thereof at this time. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.