Citation Nr: 21009634 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 10-32 377 DATE: February 23, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had bilateral pes planus at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1972 to September 1985. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April and December 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a Board video conference hearing in November 2016. A transcript of the hearing is of record. These matters were previously before the Board in June 2018 and September 2020 when they were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran’s claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. 1. Entitlement to service connection for bilateral pes planus The Veteran contends that he is entitled to service connection for bilateral pes planus. The Board concludes that the Veteran does not have a current diagnosed bilateral pes planus and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Service connection is therefore not warranted. 38 C.F.R. § 3.303(a), (d); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pursuant to the September 2020 Board remand, a medical opinion was provided in September 2020. The examiner determined that the Veteran was never actually diagnosed with bilateral pes planus. The examiner further noted that the June 2017 examiner did not note pes planus as a diagnosis or problem. The Board’s review indicates that service and VA treatment records are silent for complaints, diagnosis or treatment of bilateral pes planus during or after service, The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the reasons discussed above, the Board finds that the evidence of record fails to establish that the Veteran has had a diagnosed bilateral pes planus at any point during the appeal period. Accordingly, the Veteran’s claim for service connection for bilateral pes planus is denied. 2. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends his acquired psychiatric disorder is due to his active duty service, specifically witnessing helicopters being shot down over the demilitarized zone of Korea. The Board finds that the evidence of record does not support a finding that an acquired psychiatric disorder is related to the Veteran’s service. The Veteran underwent a VA examination in May 2017 and did not meet the criteria for posttraumatic stress disorder. Due to inconsistencies between the Veteran’s records and his reports, the examiner was unable to provide a psychological diagnosis. The Veteran received another VA examination in February 2019. This examiner diagnosed the Veteran with alcohol use disorder and adjustment disorder with depressed mood, chronic and provided a negative opinion. He opined that the Veteran’s adjustment disorder was tied to his health conditions, none of which are connected to service. Pursuant to the September 2020 Board remand, a medical opinion was provided in October 2020. This examiner determined the Veteran’s alcohol use disorder was related to his alcohol abuse in service. The examiner also determined that the Veteran’s adjustment disorder was not related to service, but rather due to his current medical problems. Payment of compensation for a disability that is a result of one’s own alcohol or drug abuse is precluded by Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, (effective for claims filed after October 31, 1990, as in this case). Moreover, section 8052 also amended 38 U.S.C. § 105 (a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of willful misconduct, including abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. §§ 3.1 (n), 3.301. However, the Federal Circuit has held that service connection is warranted for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran’s service-connected disability. As direct service connection for alcohol abuse is barred as a matter of law and the evidence of record does not show that the Veteran’s alcohol dependency is proximately due to or the result of a service-connected disability or aggravated by a service-connected disability, service connection for alcohol use disorder must be denied. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.310; Allen v. Principi, 237 F.3d at 1376. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). After careful review of the entire record, the Board had determined a preponderance of the evidence, lay and medical, weighs against the Veteran’s claim. Accordingly, the claim for service connection for an acquired psychiatric disorder is denied. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, Associate 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.