Citation Nr: 21010412 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-09 653 DATE: February 24, 2021 ISSUE Entitlement to service connection for bilateral foot pes planus disability. ORDER Entitlement to service connection for a bilateral foot pes planus disability is denied. FINDINGS OF FACT 1. Pes planus was noted when the Veteran was examined, accepted, and enrolled into service. 2. Pes planus did not increase in severity during service. CONCLUSIONS OF LAW 1. The Veteran is not entitled to the presumption of soundness upon entry into service with regards to a pes planus disability. 38 U.S.C. §§ 1110, 1111, 1132 (West 2012); 38 C.F.R. § 3.304 (2018). 2. Preexisting pes planus was not aggravated by service. 38 U.S.C. §§ 1111, 1113, 1131, 1137, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1991 to November 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in March 2019. A copy of the hearing transcript is included in the Veteran’s claims file. This matter was previously before the Board in August 2019 and September 2020. In the August 2019 decision the Board remanded the issue on appeal for additional development including an addendum medical opinion. Specifically, although a March 2014 examiner opined as to whether the Veteran’s pre-existing condition was aggravated by military service, the examiner did not provide a rationale for the opinion related to aggravation. As such, the March 2014 VA examination was deemed inadequate. In September 2020, the Board remanded the Veteran’s claim for an Addendum Medical Opinion which takes into consideration the Veteran’s August 1996 separation examination and the Veteran’s August 2020 lay statement. The Board is satisfied that there was been substantial compliance with its September 2020 remanded directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the Veteran submitted a lay statement in November 2020. An explicit waiver of RO review in the first instance was not included. However, since the evidence was submitted by the Veteran and the Form 9 addressing the issue was received after February 2, 2013, a waiver is not required. See § 501, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial RO review of evidence submitted to the RO or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant's representative requests in writing that the RO initially review such evidence). Entitlement to service connection for bilateral foot pes planus disability The Veteran contends that his current bilateral foot pes planus disability is related to service because of the boots he was required to wear in service, including the constant walking, running for purposes of physical training (PT) and jumping in these boots. The Veteran has also stated that he was not provided with arch support during service. Alternatively, the Veteran argues that his pes planus was aggravated by service. See March 2019 Board Hearing transcript, pgs. 17-19; April 27, 2015, Notice of Disagreement (NOD); August 11, 2020, Lay statement; See also, January 13, 2021 Appellant’s Post-Remand Brief. The Veteran’s Military Occupational Specialty during service was Unit Supply Specialty, 5 years, 2 months. See DD-214. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38U.S.C.§1131; 38 C.F.R.§3.303 (a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition to the laws and regulations outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38U.S.C.§1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R.§3.304 (b). Pursuant to 38U.S.C.§1111, and 38 C.F.R.§3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Cases in which the condition is noted on entrance are, however, governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows 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 (2018). 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 service. 38 U.S.C. § 1153 (2012); 38 C.F.R. §§ 3.304, 3.306(b) (2018). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows 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. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306 (a) (2018). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104 (a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.3 (2018). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the Veteran’s STRs include a July 1991 enlistment examination with notation of pes planus-mild, moderate, asymptomatic. See Item number 36, July 13, 1991 Report of Medical Examination (enlistment) and Item number 74 (Summary of Defects and Diagnoses). Consequently, the Board finds that pes planus was noted at service entrance in July 1991, and thus, that the presumption of soundness does not apply. Therefore, the only issue is whether the Veteran’s planus was aggravated by service. See Horn, 25 Vet. App. at 234 ("There is a related but distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service. This provision is known as the 'presumption of aggravation.'") As referenced above, a preexisting injury or disease will be considered to have been aggravated by active duty 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 (obvious or manifest) evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an 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 service. 38 C.F.R. § 3.306(b). These provisions apply to only one situation: where the induction examination notes a preexisting condition that is alleged to have been aggravated. Horn, 25 Vet. App. at 238 (quoting Wagner, 370 F.3d at 1096) ("[I]f a preexisting disorder is noted upon entry into service . . . the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation.") As referenced in the introduction of this decision, the Board notes that the Veteran has been afforded Flat Foot Conditions examinations in March 2014 and September 2019. While each examiner opined that the Veteran’s pes planus pre-existed service, and was not aggravated during service, the Board finds that the March 2014 and September 20019 examinations are inadequate for adjudication purposes. The March 2014 examination lacked rationale with regards to the conclusion that there was no permanent aggravation of the Veteran’s ples planus secondary to military service. See March 21, 2014 Flat Foot Examination and Medical Opinion. Additionally, the Board finds that the September 2019 examination is inadequate based on the failure of the examiner to consider that the Veteran’s bilateral pes planus worsened after service in the form of pain with pressure on the feet, including pain, cramping and locking with prolonged standing and walking. See also September 2020 BVA Decision, pg. 4. Reference to these examinations, and particularly the March 2014 VA examination, are made for the limited purpose of reflecting the Veteran’s diagnosis, diagnostic testing and complaints raised about his bilateral pes planus. As to whether the Veteran's pes planus was aggravated by service, the evidence does not reflect that there was an increase in severity of his pes planus during service. Following the July 1991 enlistment examination, the STRs do not reflect worsening of the Veteran's pes planus, and contain no notations relating to complaints or treatment for pes planus. On the Veteran August 1996 Separation examination, the Veteran denies any treatment or complaints with regards to pes planus. See August 21, 1996, Report of Medical History. The Board does note that on the Veteran's August 1996 service separation examination report, on clinical evaluation, the examiner does indicate a diagnosis of pes planus. Further, on clinical evaluation the Veteran’s feet are reported as abnormal. See August 21, 1996 Report of Medical Examination, Item U. After separation from service, a March 21, 2014 bilateral foot x-ray shows mild pes planus, otherwise unremarkable. On medical history, the Veteran reports pain with pressure on his feet, cramping and locking with prolonged standing and walking. See March 2014 VA Flat Foot examination, pgs. 14-16. Pursuant to the Board September 2020 Remand directives, the Veteran was afforded a VA foot conditions for an addendum medical opinion with regard to the etiology of his pes planus disability. See September 24, 2020 Addendum Medical Opinion. The examiner noted review of the Veteran’s entire medical record, with consideration of the Veteran’s separation examination which notes pes planus and the Veteran’s August 2020 lay statement, in which he suggests that his service connected back and knee disabilities are evidence of the aggravation of his bilateral pes planus in service. Id. at 1 & 4-5. The examiner opined that the Veteran's pes planus disability pre-existed service and was not increased by service. The examiner first addressed the Veteran’s back and knee contention. The examiner explained that “His back has been hurting off and on since he injured his back while moving furniture in service ". The bilateral knee strains are less likely than not related to the lumbar strain. Bilateral pes planus pre-existed service and therefore was not due to service. Condition was noted on entrance exam dated July 1990. The Veteran’s entrance examination, dated July 1990, noted that he has moderate pes planus, which is asymptomatic. Review of the Veteran’s August 1996 exam revealed he made mention of foot issues. Bilateral foot x-rays done in March 2014 show mild pes planus, otherwise unremarkable. There is clear and unmistakable evidence which demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Therefore, the foot condition is not permanently aggravated beyond its natural progression secondary to military service as there is a lack of evidence to support aggravation.” See September 2020 Flat Foot Conditions Medical Opinion, pg. 4. The examiner provided a citation to the literature (with URL) addressing the issue regarding foot posture, foot function and low back pain. Id at 4. Additionally, the September 2020 VA examiner opined that the Veteran’s bilateral foot pes planus was less likely than not aggravated (non-temporary increase in severity) by service and, any increase in severity was clearly and unmistakably (undebatably) due to its natural progress. The examiner explained in the following rationale: The Veteran’s entrance examination, dated July 1990, noted that he has moderate pes planus, which is asymptomatic. Review of the Veteran’s exit exam revealed no mention of foot complaints. Therefore, the foot condition is not permanently aggravated beyond its natural progression secondary to military service as there is a lack of evidence to support aggravation.” Bilateral foot x-rays done in March 2014 show mild pes planus, are otherwise unremarkable. There is clinical evidence that mild pes planus does not aggravate back pain. The Veteran’s bilateral foot pes planus was less likely than not aggravated (non-temporary increase in severity) by service and, any increase in severity was clearly and unmistakably (undebatably) due to its natural progress.” "Rheumatology key messages Planus or cavus foot posture is not associated with low back pain in men or women. Pronated foot function when walking is associated with low back pain in women. Interventions that modify abnormal foot function may facilitate prevention and treatment of low back pain. Foot posture, foot function and low back pain: the Framingham Foot Study (Hylton B. Menz Alyssa B. Dufour Jody L. Riskowski Howard J. Hillstrom Marian T. Hannan).” Conclusion: Moderate and severe pes planus was associated with nearly double the rate of anterior knee pain and intermittent low back pain, while mild pes planus was associated with no higher rate for these problems.” See September 24, 2020 Medical Opinion, pg. 5. The Board finds the September 2020 very detailed Addendum Medical Opinion adequate for adjudication purposes because it is based on a review of the Veteran’s entire medical history (including his complaints of foot pressure and pain after service), with consideration of the Veteran’s contentions regarding his back and knee. The Board finds that this Addendum Medical Opinion is also accompanied with the underlying reasons for the conclusion reached. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds the opinion of the September 2020 VA examiner probative and persuasive in this case. As the September 2020 VA examiner explained the reasons for her conclusions based on an accurate and comprehensive review of the relevant information in the claims file, including the Veteran’s August 2020 lay statement, her opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Here the Board observes that the examiner (1) considered the August 21, 1996 separation examination which did note pes planus at separation (See Item U), (2) considered the Veteran’s August 2020 lay statement which asserted that the evidence of aggravation during service was his back and knee condition during service and (3) provided a rationale which considered all of the medical evidence of record, referencing pertinent research related to pes planus, back and knee disabilities, followed by a reasoned explanation for the conclusion reached. The Board finds that the examiner's opinion was based on a thorough analysis of all of the evidence. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no contrary medical opinion or evidence in the claims file indicating that the Veteran's pes planus increased in severity during service. The Board also acknowledges that the Veteran contends that if he had gotten treatment during service for his pes planus, he would have less calluses on his feet, and less damage to his knees and back. See November 16, 2020 Lay Statement. The Board however does not find this argument persuasive as the issue before the Board is whether there was an increase in the Veteran’s pes planus during service. The only other evidence indicating such an increase in service is the Veteran's statements that he believes that his pes planus had worsened during service based on his knee, back and shin splint complaints. See August 11, 2020 Lay Statement. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran is competent to opine as to his observation of the visible flatness of his feet or of pain, as well as whether it increased in severity during service. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet). However, the question of whether such increase, if any, was due to the natural progress of the disease, and whether such increase was manifest by other medical disorders, are statements as to an internal medical process and etiological relationships, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). The Veteran’s statements in this regard are therefore not competent, nor are they probative or persuasive, and thus do not warrant the conclusion that the presumption of aggravation is for application. To the extent that these statements are competent, the Board finds that the specific, reasoned opinion of the September 2020 VA examiner indicating that any increase in the severity of the disease was due to its natural progress is of greater probative weight than the Veteran's more general lay assertions in this regard. Here, the Board underscores that the September 2020 examiner did not find any increase in the severity of this Veteran’s pes planus beyond its natural progression by comparing the Veteran’s July 1990 enlistment examination, noting that the Veteran had moderate pes planus, which was asymptomatic, with review of the Veterans August 1996 exit exam, which revealed no mention of foot complaints, combined with a March 2014 bilateral foot-x-ray done in March 2014 which showed mild pes planus, otherwise unremarkable. See September 24, 2020 Medical Opinion, pg. 5; See also March 2014 Flat Foot examination re: diagnostic testing, pgs. 16-17. As the Veteran's pes planus was noted when he was examined, accepted, and enrolled for active service, the presumption of soundness is not for application. As the only basis for service connection in this situation would be due to aggravation of the preexisting pes planus, and the weight of the evidence is against such aggravation, entitlement to service connection for bilateral pes planus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable here. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.