Citation Nr: 21008691 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 12-35 719 DATE: February 17, 2021 ORDER Entitlement to service connection for pes planus is denied. Entitlement to service connection for hallux valgus, to include as secondary to pes planus is denied. FINDINGS OF FACT 1. The Veteran’s pes planus pre-existed military service and did not chronically worsen therein. 2. The Veteran’s hallux valgus was not present in service, is not shown to be etiologically related to his active military service. The Veteran’s hallux valgus was caused by or aggravated by the Veteran’s non-service connected pes planus. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus have not been met. § 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2019). 2. The criteria for service connection for hallux valgus, to include as secondary to pes planus have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (d) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to August 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing is of record. In an October 2017 decision, the Board denied the Veteran’s claims. The Veteran appealed the Board’s October 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 Order, the Court set aside the October 2017 decision, and remanded the matter to the Board for further development. The Board subsequently remanded this matter in February 2019 and September 2020. The Board finds there has been substantial compliance with its September 2020 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1155; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (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). Under 38 C.F.R. § 3.310, service connection on a secondary basis may be granted for a disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a non-service connected disability by a service connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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, the benefit of the doubt is afforded the claimant. Entitlement to service connection for pes planus and entitlement to service connection for hallux valgus, to include as secondary to pes planus Every veteran shall be taken to have been 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 and clear and unmistakable evidence demonstrates that the injury or disease was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2019). The Veteran contends that his pes planus was aggravated beyond its natural progression by service. The Veteran asserted that plantar fasciitis started in service, aggravated his pes planus, and was a superimposed condition. Initially, as will be noted below, the Board finds that the Veteran had pre-existing pes planus. On the Veteran’s entrance examination in July 1981, mild asymptomatic pes planus was noted. The Veteran was determined qualified for enlistment. In an October 1981 service treatment record the Veteran complained of pain in his right foot for 3 weeks. He had pain upon walking and running. The Veteran denied injury. There was pain at the lateral aspect big toe and ankle. In a July 1982 service treatment record, the Veteran complained of both feet hurting whenever he walked, ran, etc. He was assessed with plantar fasciitis. On service discharge examination in June 1984, there was no indication of any foot condition Because the July 1981 entrance examination documents pes planus, the Board finds that pes planus existed prior to acceptance and enrollment for active military service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304. Thus, the presumption of sound condition does not apply in this case. 38 U.S.C. § 1111. The Board will, therefore, consider whether service connection is warranted on the basis of aggravation of a pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004) (concluding that “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”). A pre-existing disease or injury will be considered to have been aggravated by military 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 (2012); 38 C.F.R. § 3.306 (a) (2019). It is the veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the pre-existing disability increased in severity during service for the presumption of aggravation to attach. See Wagner, 370 F.3d at 1096; Verdon v. Brown, 8 Vet. App. 529, 538 (1996) (stating that the question of whether a preexisting defect or injury underwent an increase in severity “must be answered in the affirmative before the presumption of aggravation attaches”). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence demonstrating that any increase in disability was due to the natural progress of the disease, which burden is on the government. See Wagner, 370 F.3d at 1096; Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); 38 C.F.R. § 3.306 (b). In a September 2010 VA treatment record, the Veteran complained of low back and bilateral feet pain. “Intermittent feet pain May/June 2010” was noted. It was determined that the Veteran had some mild degenerative changes in both feet. In a September 2010 x-ray, it was noted that the Veteran had mild degenerative joint disease with significant bilateral hallux valgus. In a July 2011 VA treatment record, the Veteran was seen for diabetic footcare. He admitted to occasional numbness and tingling in both feet. In a September 2011 VA addendum treatment record, the Veteran complained about not having the proper fitting boots while in the service, which resulted in pain when walking or running. The treating physician opined that if the Veteran were given proper fitting boots with arch supports, his painful HAV bunions would have been prolonged and the Veteran might not be having pain to bilateral feet. In a September 2011 statement, the Veteran said he entered in the military in 1981 with flat feet. The military boots that were supplied did not have arches and this aggravated his condition. He said he did not have any problems when he entered service. Over the years he developed degenerative joint disease. In a November 2011 VA examination, bilateral pes planus and hallux valgus diagnoses were noted. History was noted that the first issue was during physical training (PT) while in the service. Over the years there were intermittent issues, but overall steady decline in foot function and ability to be productive. The Veteran had tried various medications and orthotics with minimal help. The examiner stated that the Veteran was diagnosed with pes planus at entrance exam to military. He was diagnosed while in service with plantar fasciitis after PT session. The Veteran was recently seen in 2011 by a podiatrist who diagnosed the Veteran with bilateral hallux valgus. The examiner said that with regards to the Veteran’s current condition of bilateral hallux valgus, it was most likely caused by, or a result of, his pes planus which was diagnosed while in service. Pes planus was commonly known to lead to many foot deformities and degeneration, hallux valgus being one of the most common. With regards to the pes planus and the incident in July 1982, it was less likely as not caused by, or a result of, or aggravated by the incident while in service. Plantar fasciitis was likely due to overuse while doing PT and was not necessarily related to his pes planus. In a February 2013 private treatment record, the Veteran complained of pain in both feet for many years. He said that he suffered from flat feet for many years and was first diagnosed with the condition when he entered the military in the 1980s. The Veteran said that he received no treatment for the condition while in service, despite the fact that he complained of pain associated with the condition on multiple occasions. He said that his boots were the wrong size and that he would have benefited from therapy with orthotic devices to slow the progression of the bunion deformities he now had. The physician noted that a second opinion from another physician was that the Veteran’s condition might have been less severe if he had been treated with orthotics. However, a third opinion by a physician at VA was that it was unlikely that the Veteran’s current symptoms were related to medical care he received while in service. The Veteran said his feet hurt only when he walked or stood for extended periods of time. Weightbearing aspects of his feet felt tight when he stood. He did not experience any pain while at rest or at night. The physician informed the Veteran that functional orthotics could be a beneficial modality to slow the progression of many pedal deformities, including bunions and flat feet, but often did not halt their progression completely. As such, the Veteran likely would have benefitted from therapy with orthotic devices when his feet first became symptomatic. The devices would likely have slowed the progression of the degenerative changes now noted at the level of the midfoot and the severity of the hallux abducto-valgus deformities. The difference in the severity of the deformities had the condition been treated versus their current state, however, was difficult to determine. In a November 2016 statement, the Veteran’s representative referred to medical literature which indicated that individuals with abnormal foot conditions, to include pes planus, were at a higher risk to develop plantar fasciitis. Therefore, the Veteran’s representative suggested that there was aggravation to the Veteran’s pre-existing pes planus by an additional disability superimposing on it. At the May 2017 Board hearing, the Veteran testified that he had flat feet on entrance into service, but was not having issues with his feet. He asserted that this pes planus was asymptomatic on entrance examination, that his feet bothered him in service, that he went to sick call and got treatment for his feet during service, and that over the years after leaving service, hs feet continued to get worse. He also indicated that he had been told by his doctors that his feet problems were due to his combat boots not having proper internal support. In an October 2018 statement, the Veteran said he entered service with pes planus. There were several times in service that he was issued medical profile for no marching, running, or PT. In a November 2020 VA examination, bilateral flat foot, bilateral hallux valgus, and bilateral plantar fasciitis diagnoses were noted. In a separate November 2020 VA opinion, the examiner opined that the pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner said that the Veteran indicated that in high school he ran, played basketball, etc. He was told that he had flat feet during his military entrance examination in 1981. The Veteran indicated that he was seen medically “a couple times” while in the military. He said that when he left service, he did not know about the possible significance of military service causing the increase in foot discomfort he experienced. However, working for VA, he learned that there might be a reason to submit a claim. His feet had been gradually worse since his discharge, but he indicated that he was asymptomatic on entry into service but did have a lesser form of todays pain when discharged. The examiner reviewed the article submitted by the Veteran’s representative and determined that the article did not refer to flat foot syndrome, but instead to the diagnosis he was given. The examiner pointed to Mayo Clinic online information which stated that “most people’s arches develop throughout childhood, but some people never develop arches. This is a normal variation in foot type, and people without arches may or may not have problems.” The examiner said that the Gainesville VAMC examiner said the Veteran was diagnosed with pes planus at entrance exam to service and diagnosed while in service with plantar fasciitis after PT session. The examiner said that the Veteran had flat foot syndrome on entrance to the military but was asymptomatic. The Veteran contended that prolonged walking and standing while on active duty without orthotic shoes or inserts caused the increased pain he experienced. The examiner said that studies analyzing the correlation between flat feet and physical injuries in soldiers had been inconclusive, but none suggested that flat feet were an impediment, at least in soldiers who reached the age of military recruitment without prior foot problems. The examiner stated that a 2005 study of Royal Australian Air Force recruits that tracked the recruits over their basic training found that neither flat feet nor high arched feet had any impact on physical functioning, injury rates, or foot health. If anything, there was a tendency for those with flat feet to have fewer injuries. The examiner concluded that while the Veteran’s symptoms increased during military service, the fact that he had the flat foot syndrome on admission did not predispose him to injury. The development of plantar fasciitis was not indicative of worsening of the pre-existing pes planus. Post-service treatment records are silent for any aggravation beyond its natural progression of the Veteran’s pes planus. In this case, the July 1981 entrance examination showed that the Veteran had mild asymptomatic pes planus. On service discharge examination in June 1984, there was no indication of any bilateral foot condition. The next medical evidence of pes planus was not until was many years following release from active duty. The Veteran is certainly competent to report on the severity of symptoms such as pain in service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating the “[l]ay testimony is competent... to establish the presence of observable symptomatology”). Here, however, the relevant inquiry turns on whether there was a change in the underlying pathology of the pre-existing foot disability, “as distinguished from the mere recurrence of manifestations of the pre-service condition.” Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (stating that “[e]vidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability.”). The Board finds that whether there was a change in the underlying pathology of the Veteran’s pre-existing flat feet is a medical determination. Because the Veteran is a lay person without the appropriate medical training and expertise, he is not competent to state that there was a change in the underlying pathology of his pre-existing pes planus condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Upon a review of the evidence of record, the Board finds that there is no evidence demonstrating that the Veteran’s pre-existing flat feet underwent an increase in severity chronically worsened (i.e., underwent a permanent increase in the underlying pathology beyond the natural progression) during his military service. Although the service treatment records noted complaints of foot pain in October 1981, and a diagnosis of plantar fasciitis in July 1982, the remainder of the service treatment records are silent as to any complaints of or treatment for bilateral flat feet. Moreover, the June 1984 separation examination did not indicate any bilateral foot condition. To the extent that the Veteran experienced any exacerbation of pain during service on account of his military duties, an intermittent or temporary flare-up during service of a pre-existing injury or disease does not constitute aggravation pursuant to 38 U.S.C. § 1153 unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board acknowledges that the September 2011 VA physician and February 2013 private physician opined that wearing proper fitting boots or orthotic devices would likely have slowed the progression of his pes planus condition; however, this is not an opinion on whether the Veteran’s pes planus was aggravated beyond its natural progression in service. In contrast, as noted above, the November 2020 VA examiner found that the Veteran’s bilateral pes planus was clearly and unmistakably not permanently aggravated beyond its natural progression. Additionally, the examiner also considered the finding of plantar fasciitis in service; however, based on a thorough review of the record and medical literature, the examiner did not find that this diagnosis superimposed on the pes planus to cause a worsening beyond its natural progression. The evidence of record does not show any complaints of or treatment for pes planus until 2010, over 20 years following service. The Board acknowledges that the evidence of record reflects one notation of foot pain, and another diagnosis of plantar fasciitis in the time frame between the Veteran’s service entrance and 2010. However, this does not suggest a worsening in the underlying pathology of the Veteran’s pes planus; it suggests temporary flare up of symptoms during service. Without some objective evidence demonstrating a worsening of the underlying pathology of the Veteran’s pes planus in service, the Board concludes that the evidence does not support a finding of aggravation. Thus, because the Veteran’s pes planus was noted to have pre-existed his active military service, and was not aggravated therein, the Board finds that the Veteran’s claim for service connected aggravation of pre-existing pes planus must be denied. See 38 C.F.R. §§ 3.303, 3.304, 3.306; see also Wagner, 370 F.3d 1089. Regarding the claim of service connection for hallux valgus, based on the above evidence, the Board does not find that the Veteran’s hallux valgus is related to service. There is no evidence of complaints, treatment, or diagnosis of hallux valgus in service. Post-service treatment records do not show a diagnosis of hallux valgus until 2010. Thus, there is no finding of continuity of symptomatology and the Veteran has not argued that his hallux valgus is directly related to service. (Continued on the next page)   Regarding secondary service connection, the November 2011 VA examiner determined that the hallux valgus was related to the Veteran’s pes planus. However, as pes planus remains not service connected, there can be no secondary service connection for hallux valgus, and service connection on a secondary basis must be denied due to lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence that shows that the Veteran’s pre-existing pes planus was aggravated beyond its natural progression, or that his hallux valgus was incurred in service or manifest within a year after service, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for pes planus, and service connection for hallux valgus, to include as secondary to pes planus are not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.