Citation Nr: 21013109 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-06 097 DATE: March 8, 2021 ORDER Entitlement to service connection for a bilateral foot disability, to include hallux valgus and pes planus, is granted. Entitlement to service connection for coronary artery disease (CAD) is denied. FINDINGS OF FACT 1. The Veteran’s preexisting bilateral foot condition was aggravated beyond the natural progression of the disorder during active service. 2. The Veteran’s CAD was not present in service or until many years thereafter, and is not related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing entitlement to service connection for a bilateral foot disability, to include hallux valgus and pes planus, have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for establishing entitlement to service connection for CAD have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from September 1977 to September 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the instant issues on appeal for further development. The issues have returned to the Board. The Board notes that the RO certified as on appeal the issues of service connection for hallux valgus and pes planus. As noted in the September 2018 remand, the Board, however, has recharacterized the issue to afford the Veteran a broader scope of review. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Generally, to establish service connection, a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be granted for aggravation of a preexisting injury suffered or disease contracted in the line of duty. VA law provides that 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); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (to rebut the presumption of soundness in the case of a wartime veteran, the evidence must clearly and unmistakably show not only that the disorder at issue preexisted entry into service, but clear and unmistakably show that the disorder did not undergo aggravation in or as a result of service). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). 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 veteran. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 469. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a bilateral foot disability, to include hallux valgus and pes planus, is granted. In this case, the Veteran seeks entitlement to service connection for a bilateral foot disability. He contends that his bilateral foot condition, which preexisted active service, was aggravated by his active service. For the reasons discussed below, the Board agrees, and finds that service connection for a bilateral foot disability is warranted. The evidence includes a December 1976 entrance examination report, which indicates that the Veteran had bilateral bunions. As such, the Board finds that the Veteran’s bilateral foot disability was noted upon entry to his period of service. Because a preexisting foot disorder was “noted” at the time of enlistment, the presumption of soundness at service entrance did not attach with regard to the preexisting flat feet. 38 U.S.C. § 1111. Therefore, the question before the Board with regard to the claimed bilateral foot disability is whether the preexisting bilateral foot disorder was aggravated by active service. A preexisting injury or disease will be considered to have been aggravated by active 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). 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;38 C.F.R. §§ 3.304, 3.306(b). Under certain circumstances, aggravation may be presumed. However, a preexisting disease or injury will only be presumed to have been aggravated by service if the evidence shows that the underlying disability underwent an increase in severity. Evidence 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 mere 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). Indeed, evidence of a disorder being asymptomatic upon 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 became worse during service and then improved due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Turning to the most relevant evidence of record, as noted above, the December 1976 entrance examination report indicates that the Veteran had bilateral bunions. The examiner noted that the condition was asymptomatic at that time. In a January 2014 statement, the Veteran indicated that, during service, he participated in jump training and performed many jumps. He further stated that, due to problems with his feet, he deliberately terminated his jump status. Indeed, the Veteran’s service personnel records show that he completed the Airborne Course in March 1979. Thereafter, in April 1980, he deliberately terminated his airborne status. Post-service medical records show that the Veteran is diagnosed with bilateral hallux valgus deformity with pes planus and mild first metatarsophalangeal (MTP) degenerative joint disease (DJD) (previously referred to as bilateral bunions). See February 2015 VA examination report. On VA examination in February 2015, the Veteran reported that he experienced pain during service with high impact activities. He further reported that he stopped parachute jumping due to bilateral foot pain. The examiner opined that the Veteran’s hallux valgus deformity with pes planus and mild first MTP DJD, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by his in-service parachute jumps. A September 2018 private treatment record shows that Dr. A.W. opined that, while the Veteran’s hallux valgus deformity existed prior to his military service, it is as likely as not that the physical rigors of his military service, including his many parachute jumps, caused his foot condition to worsen beyond its natural progression and contributes to his current bilateral hallux valgus deformity. However, Dr. A.W. did not review the Veteran’s entire claims file, including his service treatment records. Thus, the Board finds Dr. A.W.’s opinion to be inadequate. An October 2018 private treatment record shows that the Veteran reported that his bilateral foot pain had presented for most of his life. He further reported that, however, it had worsened after doing airborne training in the military. As shown in his service personnel records, he indicated that he ultimately did come off of jump status due to his feet. He stated that his pain was now chronic. Dr. V.N. opined that the Veteran’s hallux valgus preexisted service. Dr. V.N. further opined that it is certainly as likely as not that the Veteran’s military service and numerous parachute jumps aggravated and worsened his condition. However, Dr. V.N. did not review the Veteran’s entire claims file, including his service treatment records. Thus, the Board finds Dr. V.N.’s opinion to be inadequate. In a September 2019 VA addendum opinion, the February 2015 examiner again opined that the Veteran’s hallux valgus deformity with pes planus and mild first MTP DJD, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by his in-service parachute jumps. The Board notes that the record does not include an adequate positive medical opinion indicating that the preexisting bilateral foot disorder was aggravated by active service. However, based on the foregoing evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral foot disability was aggravated beyond the normal progression by active service. As previously indicated, the December 1976 entrance examination report noted that the Veteran had bilateral bunions, which, the examiner noted was asymptomatic at that time. Throughout the period on appeal, the Veteran has repeatedly and consistently stated that his bilateral foot condition was aggravated by his in-service parachute jumps, resulting in his deliberate termination of his airborne status. As discussed above, indeed, the Veteran’s service personnel records show that he deliberately terminated his airborne status. Such evidence shows a worsening of the condition compared to the asymptomatic bilateral bunions noted on entry into active service. In fact, the Veteran’s condition had increased to such a severity that required deliberate termination of his airborne status. Finally, the Veteran has competently and credibly stated that the strenuous physical demands of his active duty service caused bilateral foot pain, and that such increased symptoms have been ongoing since service. The Board finds that the Veteran’s statements are consistent with the physical demands of his military service. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s preexisting bilateral hallux valgus deformity with pes planus and mild first MTP DJD (previously referred to as bilateral bunions) was aggravated by active service beyond the natural progression of the disorder. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a bilateral foot disability based on aggravation is warranted. 2. Entitlement to service connection for CAD is denied. The Veteran also contends that he is entitled to service connection for CAD. The Veteran appears to assert that in-service elevated blood pressure readings contributed to his CAD. Notably, such argument was presented for the Veteran’s contention for entitlement to service connection for hypertension, which was denied by the Board in its September 2018 decision and affirmed by the United States Court of Appeals for Veterans Claims (Court) in September 2019. The Veteran’s service treatment records do not reflect that he suffered a heart condition during active military service. The July 1981 separation examination noted that the Veteran’s heart was deemed normal. Notably, service treatment records show that blood pressure readings were conducted during service. A September 1978 medical note indicates serial blood pressure results were within normal limits. As such, the service treatment records fail to demonstrate that the Veteran suffered from a heart condition at the time of his separation from active duty. Likewise, the Veteran has submitted no post-service treatment records which reflect that he suffered from a chronic heart disability, or chronic symptomatology, within one year of his separation from active duty. The medical evidence notes the date of diagnosis for CAD as 2007. See February 2015 VA examination report. Thus, the evidence shows that the onset of the Veteran’s CAD was several years following his separation from service. A December 2013 private treatment record shows that Dr. A.W. opined that the Veteran’s documented in-service elevated blood pressure readings mark the onset or contribute to his current heart conditions. However, Dr. A.W. did not review the Veteran’s entire claims file, including his service treatment records. Thus, the Board finds Dr. A.W.’s opinion to be inadequate. As previously indicated, on VA examination in February 2015, the examiner noted that the Veteran was diagnosed with CAD in 2007. The examiner indicated that the Veteran’s heart condition is a post-service condition. In a September 2019 VA addendum opinion, the February 2015 examiner was unable to provide a nexus between the Veteran’s CAD and service. As rationale, the examiner stated that the onset of the Veteran’s CAD was in 2007, more than 20 years after his separation from service. The examiner noted that the Veteran had no history of myocardial infarction. The examiner further noted that the Veteran was given medication for hypertension with the onset of chest pains in 2007. As previously indicated, the Board denied entitlement to service connection for hypertension in its September 2018 decision, which was affirmed by the Court. Notably, just as the February 2015 VA examiner had concluded that the Veteran’s heart condition is a post-service condition, the examiner made the same conclusion as to the Veteran’s hypertension. Based on the foregoing, the Board finds that the Veteran’s CAD did not manifest during, or as the result of active military service. The service treatment records do not reflect that the claimed disability manifested during, or as a result of, active military service. The Veteran did not complain of heart problems during his separation examination, and examination at that time did not reveal any heart issues or an abnormal blood pressure reading. There is no post-service evidence which shows that the claimed disability manifested within one year of his separation from service. Indeed, he was diagnosed with CAD in 2007, decades after separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In this case, the absence of any medical evidence of treatment for the Veteran’s claimed disability following separation from service tends to establish that the claimed disorder was not a result of his military service. As such, there is no basis for establishing service connection for the claimed disability on appeal. The Board notes that, although the Veteran believes that his CAD is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the diagnosis and etiology of CAD is a matter not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his CAD is not competent medical evidence. (CONTINUED ON NEXT PAGE) For the foregoing reasons, the preponderance of the evidence is against the claim of entitlement to service connection for CAD currently on appeal. The benefit-of the-doubt doctrine is therefore not applicable, and the Veteran’s claim of entitlement to service connection for CAD must be denied. See 38. U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.