Citation Nr: 21009465 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-43 115 DATE: February 22, 2021 ORDER Entitlement to special monthly compensation based on loss of use is dismissed without prejudice. Entitlement to service connection for flatfoot (pes planus), left foot, is denied. Entitlement to service connection for flatfoot (pes planus), right foot, is denied. REMANDED Entitlement to a rating in excess of 0 percent for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In January 2021, the Veteran knowingly testified at his Board of Veterans’ Appeals (Board) hearing with representation present that he wished to withdraw his claim seeking entitlement to special monthly compensation for loss of use associated with erectile dysfunction. 2. The Veteran did not sustain an in-service incident, illness, or injury to which his flatfoot (pes planus), left foot, may be etiologically linked, and his left foot pes planus, which was noted upon entry into service, did not undergo any permanent worsening during his period of active duty service. 3. The Veteran did not sustain an in-service incident, illness, or injury to which his flatfoot (pes planus), right foot, may be etiologically linked, and his right foot pes planus, which was noted upon entry into service, did not undergo any permanent worsening during his period of active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to special monthly compensation based on loss of use by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for flatfoot (pes planus), left foot, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.306. 3. The criteria for entitlement to service connection for flatfoot (pes planus), right foot, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1968 to January 1970. The Veteran also had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDTURA) in the Army National Guard from 1977 to 1999. The Veteran testified at a virtual teleconference hearing held by the undersigned Veterans Law Judge in January 2021. A transcript is of record.   Withdrawal of Claim 1. Entitlement to special monthly compensation based on loss of use The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran knowingly testified at a January 2021 Board hearing with his representative present that he wished for his appeal for special monthly compensation for loss of use due to erectile dysfunction to be withdrawn. He was specifically informed that the Board would not consider the claim any further and that, if he wished to seek service connection again, he would have to submit a new claim. He responded that he understood, and in fact thought the claim had been withdrawn already. In view of the Veteran’s expressed desire, the Board concludes that his intent was to withdraw this claim and further action concerning this claim is not appropriate. Accordingly, the Board does not have jurisdiction to review the appeal for entitlement to special monthly compensation based on loss of use, and it is dismissed. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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 between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The term “active military, naval, or air service” includes active duty, any period of active duty for training (ACDUTRA) during which the veteran was disabled or died from an injury or disease incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the veteran was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24). Service connection may be established based on aggravation of a pre-existing condition, presuming that the pre-existing condition is shown to have been aggravated beyond natural progression by active service. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during 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. The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (2004). In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). 2. Entitlement to service connection for flatfoot (pes planus), left foot, is denied. 3. Entitlement to service connection for flatfoot (pes planus), right foot, is denied. The Veteran alleges that he had bilateral flatfeet (pes planus) prior to service, but that it was aggravated by his active duty service. Specifically, he contends that he was promised special shoes upon entrance into service, but never provided any. He reports that the boots he was given were too tight, and that carrying heavy weight regularly in addition to marching, walking, and running everywhere in his tight boots worsened his pes planus. After a review of the evidence, the Board concludes that while the Veteran has a current diagnosis of bilateral pes planus, the preponderance of the evidence weighs against finding that these disorders began during service, are otherwise etiologically related to an in-service injury, event, or disease, or were aggravated beyond the natural progress by an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303(a), 3.304. 3.306; Holton v. Shinseki, 557 F.3d 1363. 1366 (Fed. Cir. 2009); Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). First, the Veteran’s pes planus was noted during his entrance examination in January 1968. However, service treatment records are negative for any treatment of bilateral pes planus. The only treatment for a foot condition occurred in November 1968 when it was noted that he injured his right foot playing football, and that it caused pain and swelling in his right foot and ankle that lasted at least through December 1968, but the records do not indicate this was related to his pes planus. Additionally, as noted above, the presence of symptoms is insufficient to establish aggravation. What is required is an actual worsening of the condition Of particular note, pes planus was also noted on the Veteran’s separation examination in November 1969, but in his report of medical history at the time, the Veteran reported that he did not experience foot trouble and he described his health as “good.” As such, there is no indication in the record to support that his disability worsened during service. Additionally, there is no evidence to support that the Veteran’s periods of ACDUTRA or INACDUTRA between 1977 and 1999 worsened his bilateral pes planus. Specifically, there is no mention of pes planus in service treatment records, and the Veteran does no allege that any event or injury occurred in the line of duty during those periods that worsened his pes planus beyond its natural progression. Furthermore, the medical records do not show treatment for symptoms of pes planus until he saw a podiatrist in November 2014, which is 44 years after separation from service. Although the Veteran reported during a November 2014 VA examination that he has experienced a gradual decrease in arch height, and he reported during a June 2017 VA examination that he experiences mild mid-arch pain and tightness “sometimes,” the record does not demonstrate that the Veteran’s condition worsened beyond its natural progression as a result of service. Specifically, the June 2017 VA examiner noted that the Veteran reported that his pes planus has existed since childhood, thereby making it congenital. Furthermore, they opined that the record did not show evidence of aggravation beyond natural progression of pes planus by the Veteran’s duties and activities while on active duty, as it was only noted on the entrance and separation examination. As the examiner reviewed the evidence of record, examined the Veteran, considered his contentions in forming their opinion, and provided an adequate supporting rationale, the Board finds this opinion highly probative. The Board has considered the Veteran’s statements that his bilateral pes planus was worsened beyond its natural progression due to service. However, the Board is unable to grant service connection purely on his symptoms alone. While the Veteran has asserted aggravation due to service, the medical evidence of record weighs heavily against his testimony. As discussed, there is no evidence of treatment for pes planus during service and the Veteran denoted on both his entrance and separation examination that he did not have foot trouble and his health was “good.” Additionally, medical records after service do not demonstrate treatment for pes planus until November 2014, which is 44 years after service. Neither the Veteran’s private physician from November 2014, nor VA examiners in November 2014 or June 2017 indicated that the Veteran’s pre-existing condition has worsened in severity beyond the natural progression of pes planus. As such, aggravation of pre-existing bilateral pes planus has not been shown based on either the Veteran’s statements or on a clinical basis. Furthermore, there is no evidence that the Veteran is competent to opine as to the clinical origin of his current pes planus symptoms. The United States Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Because aggravation of symptoms beyond their natural progression is not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the contentions of the Veteran that his active duty worsened his pre-existing bilateral pes planus beyond its natural progression are found to lack competency. The Board concludes that the evidence of record demonstrates bilateral pes planus clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated beyond the natural progression of the disability during military service. Accordingly, the claim for service connection for pes planus is denied.   REASONS FOR REMAND 1. Entitlement to a rating in excess of 0 percent for bilateral hearing loss The Veteran asserts that his service-connected hearing loss is more disabling than reflected by the currently assigned 0 percent disability rating. The Veteran underwent a VA examination in May 2017, which determined the Veteran’s level of hearing loss to be at a noncompensable level of disability. However, the Veteran testified that his hearing has worsened since the last time he was examined. He reported that he leans in when speaking to people to better understand them but often misunderstands what they are saying. As the Veteran’s contentions may demonstrate an increase in the level of disability, the Board finds that a new examination is required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995). The matters are REMANDED for the following action: 1. The Regional Office (RO) should obtain and associate any updated VA treatment records with the claims file. 2. Schedule the Veteran for a VA examination to assist in determining the nature and current level of severity of his service-connected hearing loss. The evidentiary record, including a copy of this remand, should be made available to and reviewed by the examiner.   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Veltri, Associate Counsel