Citation Nr: 21009897 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-43 605 DATE: February 23, 2021 ORDER Service connection for pes planus is denied. Service connection for an acquired psychiatric disorder is denied. Service connection for erectile dysfunction as secondary to an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. Pes planus, which was noted upon entry to service, did not increase in severity therein. 2. An acquired psychiatric disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. 3. Erectile dysfunction is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus are not met. 38 U.S.C. §§ 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to June 1976. He died in March 2020 and the appellant is his surviving spouse, who was accepted as a substitute claimant for the purpose of processing this appeal to its completion in June 2020. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a rating decision issued in December 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2020, the Board remanded the case for additional development and it now returns for further appellate review. The Board observes that, prior to his death, the Veteran also perfected an appeal as to the issue of entitlement to service connection for sleep apnea, and requested a Board hearing before a Veterans Law Judge in connection with such appeal. Thus, action is being taken to schedule the appellant for such hearing. Therefore, the matter will be the subject of a separate Board decision issued at a later date, if otherwise in order. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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 was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When a pre-existing disability is noted upon entry into service, the veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In this circumstance, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish an increase in severity of the disability in service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). In this regard, a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to active service. 38 C.F.R. § 3.306(b). Further, 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, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection may not be established on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for pes planus. Prior to his death, the Veteran contended that his pre-existing pes planus was aggravated during his military service. In this regard, his March 1973 entrance examination revealed pes planus without symptoms on clinical evaluation. During the May 2019 Board hearing, the Veteran testified that he was aware that he had flat feet before entering service, but did not have any pain or limitations prior to service. He further indicated that he only started to experience symptoms when he began physical training in service, which have continued to the present time. However, while his May 1976 separation examination reflects the Veteran’s report of foot trouble, his service treatment records (STRs) are otherwise negative for any complaint or treatment for pes planus and his feet were normal upon clinical evaluation at separation. Post-service private and VA treatment records show no complaints, treatment, or diagnosis referable to pes planus until June 2015. In this regard, such records reflect frequent treatment for diabetic foot ulcers from 2008 until the Veteran underwent right and left below the knee amputations (BKAs) in April 2016 and February 2017, respectively, and, thus, numerous foot examinations were performed during such time period. However, such were negative for any indication of pes planus until June 2015. In this regard, a January 2008 VA treatment record reflected normal feet on examination and a May 2011 private treatment record noted that osseous structures of the feet were intact. Rather, a June 2015 VA treatment record reflects a right foot x-ray that noted stable chronic degenerative changes throughout the midfoot with flattening of the longitudinal arch and a November 2015 VA treatment record noted pes planus. In June 2018, Dr. J.E., who was unable to examine the Veteran’s feet due to his bilateral BKA, opined based on a review of the record and interview with the Veteran that his worsening of pes planus is service-connected because of the occurrence of symptoms while on active duty. In this regard, he noted that such condition was asymptomatic before he joined the service, but the running, marching, and jumping during physical training in combat boots with no arch supports caused him severe foot and arch pain for which he sought treatment from a medic. Dr. J.E. further found that having hereditary flat feet and overuse during physical training made the Veteran a risk for developing worsening pes planus. However, the Board affords no probative weight to Dr. J.E.’s opinion as such is contradicted by the contemporaneous evidence. Specifically, in support of such opinion, he relied on the Veteran’s report that he sought treatment for foot pain during service and had continuously experienced a worsening of such pain since service; however, his STRs are negative for any such complaints. Moreover, while he reported foot trouble on his May 1976 separation examination without further explanation, his feet were normal upon clinical evaluation at such time and the record is void of documentation of complaints, treatment, or a diagnosis of pes planus until June 2015, some thirty-nine years after the Veteran’s separation from service. In this regard, as he sought ongoing treatment for bilateral diabetic foot ulcers, which ultimately resulted in BKAs, it would be reasonable to assume that he would likewise report complaints referable to his flat feet if such were present. Cucuras v. Sec’y of Health and Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (finding no error in fact-finder’s decision to give more weight contemporaneous medical records generated for treatment purposes than to contrary lay testimony, reasoning that “[m]edical records, in general, warrant consideration as trustworthy evidence, and that “oral testimony in conflict with contemporaneous documentary evidence deserves little weight”); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). Furthermore, while the Veteran indicated that he started to experience symptoms related to his pes planus as a result of physical training in service, which were described as severe foot and arch pain to Dr. J.E., the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis, supra; 38 C.F.R. § 3.306(a). Additionally, evidence being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green, supra. Furthermore, while the Veteran is competent to report relevant symptomatology such as pain, he as a lay person, is not competent to offer an opinion as to whether his pre-existing pes planus underwent an increase in the underlying severity during his military service as such is a complex medical question extending beyond an immediately observable cause-and-effect relationship. Specifically, such an opinion requires knowledge of the musculoskeletal system of the foot and the impact physical training has on the underlying severity of pes planus. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his pes planus is not competent and, consequently, is afforded no probative weight. Furthermore, the Board finds that VA’s duty to provide a medical examination and/or opinion regarding such claim is not triggered in the instant case. Specifically, for the reasons previously discussed, there is no indication that the Veteran’s pes planus underwent an increase in the underlying severity during his military service. See McLendon v. Nicholson 20, Vet. App. 79 (2006). The United States Court of Appeals for Veterans Claims (Court) has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the instant claim. Therefore, the Board finds that pes planus, which was noted upon entry to service, did not increase in severity therein. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant’s claim of entitlement to service connection for pes planus. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression. Prior to his death, the Veteran contended that he has an acquired psychiatric disorder, to include depression, as a result of his military service. In this regard, he claimed that, while he was deployed to Korea, he became depressed as he missed his family and, as such, fabricated orders to Washington, D.C., where he flew to speak with his Congresswoman to see about being discharged, and was disciplined upon his return to Korea. The Veteran further reported that he experienced psychiatric symptoms since such time and, thus, service connection for an acquired psychiatric disorder is warranted. As an initial matter, the Board notes post-service treatment records reflect multiple diagnoses of an acquired psychiatric disorder to include depression, bipolar I with psychotic features, and anxiety. See January 2018 VA treatment records, April 2019 Dr. G.R. private treatment records. However, such are negative for any indication that the Veteran’s acquired psychiatric disorder is related to his military service. In June 2018, Dr. J.E., who is not a psychologist or psychiatrist, noted that the Veteran reported that he was homesick and depressed in service and, following his discharge, he experienced ongoing psychiatric symptomatology and was hospitalized twice in the psychiatric unit at the VA hospital. He then opined it was more likely than not that the Veteran’s depression and anxiety are service-connected because of the occurrence of symptoms during service. Additionally, in May 2019, Dr. G.R., a psychologist, reported that, prior to his deployment to Korea, the Veteran began a relationship with a woman and they had a child together. In this regard, the Veteran indicated that the inability to make contact with his family and see his child resulted in panic, distress, anxiety, and depression and, thus, he fabricated orders to fly to Washington, D.C., to see his Congresswoman and, once there, was ordered back to Korea, where he was confined for 30 days. Dr. G.R. indicated that, based upon his multiple examinations of the Veteran, a review of the record, his education, training, and experience as it relates to veterans, and reasonable probability and certainty, the Veteran suffered a psychotic episode while serving in Korea due to the inability to see or communicate with his family. Specifically, the related distress and anguish triggered a manic phase that led him to altering records, going absent without leave (AWOL), and traveling to Washington, D.C. to see his representative. Dr. G.R. indicated that such behavior is conductive to a diagnosis of bipolar I. Further, he noted that the Veteran had otherwise served three years without any disciplinary issues or concerns and was honorably discharged. Thus, Dr. G.R. found that it was more likely than not that the Veteran’s psychiatric disorders, diagnosed as major depressive disorder, bipolar I, and general anxiety disorder, are a result and consequent of his military service. However, the Board finds that, as both Drs. J.E.’s and G.R.’s opinions are based on an inaccurate factual premise, they are inadequate to establish service connection for the Veteran’s claimed acquired psychiatric disorder. In this regard, the Board finds the Veteran’s report of the in-service events that he alleges resulted in such disorder to be not credible and, thus, Drs. J.E.’s and G.R.’s opinions, which are based on such inaccurate history, are afforded no probative weight. See Kowalski, v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on veteran’s statement renders a medical report not credible only if the Board rejects the statement of the veteran). Specifically, the Veteran’s STRs are entirely negative for any complaints, treatment, or diagnosis of an acquired psychiatric disorder. Additionally, at the time of his separation examination in May 1976, he denied previously or currently experiencing frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort and his psychiatric evaluation was normal. Furthermore, the Veteran received a Special Court Martial in May 1976 for using abusive language in February 1976, dereliction of duty in February 1976, disobedience of a lawful command in February 1976, and being AWOL from March 21 to 23, 1976. In this regard, while the record reflects that he has 13 days of time lost, he was confined from April 24 to May 1, 1976, and was AWOL for two three-day time periods, from March 21 to 23, 1976, and April 21 to 23, 1976. Moreover, there is no report that he fabricated orders or flew to Washington, D.C. Also, in his September 1976 request to upgrade his reenlistment code, the Veteran reported no mitigating factors for the offenses underlying his Special Court Martial, to include his alleged distress over his separation from his family. Finally, the VA treatment records reflect that the Veteran’s major depressive disorder had its onset in 2005. Thus, as the contemporaneous evidence of record directly contradicts the Veteran’s reported in-service events that he alleges resulted in his acquired psychiatric disorder, his statements in such regard are not credible. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the veteran in weighing evidence); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (lack of corroborating contemporaneous evidence may be a factor in determining credibility). Furthermore, the Board finds that VA’s duty to provide a medical examination and/or opinion regarding such claim is not triggered in the instant case as there is no credible evidence of an event, injury, or disease in service. See McLendon, supra; Bardwell, supra; Waters, supra. Moreover, while the Veteran is competent to report relevant psychiatric symptomatology, he as a lay person, is not competent to offer an opinion as to whether his acquired psychiatric disorder is related to his military service as such is a complex medical question extending beyond an immediately observable cause-and-effect relationship. See Woehlaert, supra. Thus, his own opinion on such matter is afforded no probative weight. Therefore, the Board finds that an acquired psychiatric disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant’s claim of entitlement to service connection for an acquired psychiatric disorder. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 3. Entitlement to service connection for erectile dysfunction as secondary to an acquired psychiatric disorder. In regard to the Veteran’s claimed erectile dysfunction, he did not allege, and the record does not suggest, that such disorder is directly related to his military service. Specifically, his STRs are negative for any complaints, treatment, or diagnoses referable to such disorder and it had its onset many years after service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered “all possible” substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, prior to his death, he claimed that such disorder is caused or aggravated by his acquired psychiatric disorder. However, as discussed previously, the Veteran is not entitled to service connection for an acquired psychiatric disorder. As such, the Board finds that under the law, the appellant lacks legal grounds to establish entitlement to service connection for erectile dysfunction. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In Sabonis, the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Insofar as service connection is not in effect for the disability claimed by the Veteran and appellant to have proximally caused his erectile dysfunction, service connection on a secondary basis is not applicable under the law. As there is no legal entitlement, the claim of entitlement to service connection for such disorder as secondary to an acquired psychiatric disorder is without legal merit and must be denied. Id. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.