Citation Nr: 21014355 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-13 795 DATE: March 12, 2021 ORDER Entitlement to service connection for a bilateral foot disorder, to include aggravation of preexisting pes planus, is denied. FINDING OF FACT The Veteran’s bilateral foot disorder is not related to an in-service injury or disease, to include aggravation of preexisting pes planus disorder. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disorder are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1983 to September 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019 a Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. Entitlement to service connection for a bilateral foot disorder The Veteran has asserted he suffers from a bilateral foot disorder related to service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. A preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306(a). In deciding an aggravation claim, the Board must determine, after having found the presence of a preexisting condition, whether there has been any measurable worsening of the disability during service and whether such worsening constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). If the presumption of aggravation under § 1153 arises, clear and unmistakable evidence (obvious or manifest) is required to rebut this presumption. See 38 C.F.R. § 3.306(b). The preponderance of the evidence is against finding that the Veteran suffers from a bilateral foot disorder directly related to his military service. His STRs indicate he marked “yes” for foot trouble, and was noted as being flat footed by the provider in DoD Enlistment Report of Medical History dated in August 1983. A February 2012 x-ray revealed deformity of the distal shaft of the proximal phalanx of the second toe suggesting remote fracture. At a March 2012 visit he was found to have a bunion joint right first, medial sesamoiditis chronic right first metatarsal, hallux limitus symptomatic right, and pes valgo planus foot type with mild posterior dysfunction of the right foot. At a December 2012 podiatry consult, the Veteran reported an injury to his left fourth toe. He had a hammer toe located at the left fourth toe. He had a pes valgo planus foot type, plus five midstance pronation, and hallux valgus more evidence at the left great toe. X-rays indicated hallux valgus deformity at the right foot. April 2017 x-rays revealed hallux valgus and arthritis. At the Board hearing the Veteran testified that he entered service with flat feet, was required to walk a lot wearing boots during his time in service and he subsequently developed a bunion. He stated that since 1987 he has had issues with his feet. In May 2019, a VA medical opinion was provided. The examiner opined the Veteran’s bilateral pes planus, which clearly and unmistakably existed prior to service, was not permanently aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated the pes planus did not undergo permanent aggravation beyond natural progression during service. There was no mechanism of action for permanent aggravation beyond natural progression. The examiner indicated that to render an opinion regarding direct service connection as to his bunion, would require resorting to mere speculation. The examiner noted there was conflicting medical record evidence as a right bunion was documented in an STR note dated in August 1987, but it was not confirmed or documented in the separation report of September 1987. A November 2019 x-ray revealed mild bilateral first MTP joint arthropathy and mild degenerative changes of the IP joints bilaterally. He had hallux valgus bunion deformity of the right first digit. In October 2020, the Veteran underwent another examination. The examiner opined the Veteran’s bilateral foot diagnoses are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated the November 2019 x-ray diagnoses are less likely than not incurred in or caused by an in-service injury, event, or illness to include his boots/marches during active military service. The examiner opined that his x-ray diagnoses are at least as likely as not caused by post-service processes, to include natural aging. The examiner found there is no objective medical record or reputable medical literature evidence to indicate otherwise. The examiner explained that pain is a nonspecific symptom which is not pathognomonic for his November 2019 diagnoses in the bilateral feet. The examiner opined that if the Veteran’s diagnoses were caused by his boots/marches during service, then they would have manifested during service. The examiner noted that there is no objective medical record evidence to indicate such was found, and the Veteran’s x-rays diagnoses were not found in service. Nevertheless, the examiner opined that there was no objective medical evidence to indicate that the Veteran’s foot disabilities were due to an in-service injury, event, or illness, to include his boots/marches during service. On separation examination in September 1987, there was no indication of foot pain/pathology other than pes planus. There is no objective post-service medical record evidence to indicate treatment for chronic ongoing foot pain, nor was any pathology found. The examiner referenced the disabilities found on the November 2019 x-rays were not found on x-ray findings from February and December 2012, confirming they did not exist post-service. Ultimately, the examiner opined that the bilateral feet x-ray diagnoses were caused by post-service processes to include natural aging, and not by an in-service injury, event or illness, to include boots/marches during service. In December 2020, the Veteran underwent an examination. He was diagnosed with pes planus, hammer toes, and hallux valgus. The Veteran reported foot pain with running marching during service. He reported pain and flare ups of pain in his feet. He used a cane occasionally for assistance with ambulation due to pain. The examiner found the claimed foot disabilities were less likely than not incurred in or caused by an in-service event, or illness. The examiner’s rationale was that the Veteran’s foot condition was noted prior to service and was asymptomatic at separation. His foot condition was not noted to be problematic. The examiner refenced studies suggesting a strong correlation between pes planus and structural deformities, to include hallux valgus. The examiner opined that although the Veteran’s developed multiple foot conditions post-service, and even assuming a bunion was incurred during service, it is less likely than not the entirety of the foot complaints are secondary to service due to the preexisting nature of the pes planus and the lack of progression of the condition during service. The Board acknowledges that the Veteran is competent to describe symptoms that he is able to perceive through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In addition, arthritis is a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a), and therefore, the Veteran’s statements regarding continuity of symptomatology may be sufficient for purposes of establishing service connection. As the Veteran has reported entering service with pes planus, and a 1983 medical examination report it is noted the Veteran to have pes planus, the presumption of soundness does not attach with respect to this disability. Thus, the Board must determine whether the Veteran’s pes planus increased in severity during his active duty service and, if so, whether such was clearly and unmistakably due to the natural progression of such disease. Based on the medical evidence, the Veteran’s pes planus did not increase in severity during service. In this regard, service treatment records are silent with respect to any complaints pertaining to pes planus. Moreover, the May 2019 examiner found the Veteran’s pes planus was not permanently aggravated beyond its natural progression by an in-service injury, event, or illness. The December 2020 VA examiner found it less likely than not that the foot complaints are secondary to the preexisting nature of the foot disability and there was a lack of progression of the condition during service. Therefore, service connection based on aggravation is not warranted. Although the Veteran believes his current bilateral foot disability is proximately due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Further, he was not shown to have arthritis in the first post-service year or for many years thereafter. Conversely, the VA examiners’ opinions have significant probative value as they reflect consideration of all relevant facts—to include the Veteran’s lay statements, the STRs, the private opinion, and the post-service treatment records. They also provide a detailed rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The Veteran testified to experiencing a bilateral foot disability ever since his time in service, but he did not file a claim for service connection. He first asserted he suffered from a foot disability when he filed a claim in June 2011, with that also being the first report of a foot disability post-service in the record. As such, the Board finds the Veteran’s statements of having experienced a foot disability ever since service to lack credibility. The contemporaneous medical records show no aggravation of his pes planus during service, or for decades thereafter, or of onset of foot problems in service or for decades thereafter. Further, the October 2020 examiner opined that the Veteran’s x-ray findings from November 2019 were not identified during service or shortly thereafter. The examiner found the Veteran’s x-ray findings were a result of post-service processes to include natural aging, and not by an in-service injury event or illness, to include boots/marches during service. The examiner’s opinions are probative, because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Unfortunately, there are no competent opinions to the contrary. The most probative evidence of record does not show that he suffers from a bilateral foot disorder either due to service, to include presumptively related to service, nor was his preexisting pes planus permanently aggravated during service. Therefore, the claim must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.