Citation Nr: 21014929 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-19 825 DATE: March 16, 2021 ORDER Entitlement to service connection for pes planus is granted. Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. The Veteran’s asymptomatic pes planus noted on his pre-enlistment physical was aggravated beyond its natural progression by service. 2. The evidence is at least evenly balanced as to whether the onset of the Veteran’s symptoms of hypertension, a chronic disease, occurred in service and have been continuous since that time. CONCLUSIONS OF LAW 2. The criteria for entitlement to service connection for pes planus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for hypertension have 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 from September 1982 to September1985 and again from December 1990 to June 1991. He served on active duty for training (ACDUTRA) from September 1985 to November 1986. He served on active duty in Southwest Asia from January 1991 to May 1991. He also had a period of service in the Tennessee Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which denied the issues on appeal. The Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) in January 2014. The hearing transcript is of record. The Veteran declined the opportunity for another hearing after the VLJ who conducted the hearing left the Board. The Board remanded the claims in April 2015, October 2016, December 2017 and July 2020 in part to obtain adequate VA medical opinions. The case has been returned to the Board for further appellate review. The Board observes the opinions obtained in September 2020 are inadequate, because they fail to address the Veteran’s lay statements and positive medical evidence of record. The Board finds that further development for adequate examinations would be futile. Therefore, the Board will grant the Veteran’s claims. The VA issued a formal finding that the Veteran's service treatment records (STRs) from the Army and from the Tennessee Army National Guard have been determined to be unavailable for review after multiple written and verbal inquiries documented in the claims file to the National Personnel Records Center and the Tennessee Army National Guard. The Veteran was able to locate a copy of his May 1982 pre-enlistment physical after a search of his personal files. The Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's remand of these claims has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). 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 also 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 cases, where the claimed disability is recorded in the examination report upon entrance into service, such a disability is said to have pre-existed service. See 38 C.F.R. § 3.304(b). Service connection for a preservice disability may be granted only when the evidence shows an aggravation by service, meaning an increase in a severity of the disability beyond its natural progression. See 38 C.F.R. § 3.306(a). Of note, absent any evidence showing that the preservice disability underwent at least some increase in its severity during service, service connection based on aggravation will be denied. See 38 C.F.R. § 3.306(b). Once a Veteran establishes worsening of symptoms, 38 U.S.C. § 1153 applies and the responsibility shifts to the VA to establish by clear and unmistakable evidence that the aggravation of a pre-existing disability was due to the natural progress of the disease. See Horn v. Shinseki, 25 Vet. App. 231 (2012). Essentially, if VA does not make this showing, the symptom increase is presumed to have been caused by active duty service even in the absence of direct evidence of causation. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral pes planus. The Veteran contends that his preexisting bilateral pes planus was aggravated by his active duty service. As noted above, STRs for the Veteran are unavailable. However, the May 1982 entrance examination has been associated with the record. The Veteran was noted as having asymptomatic pes planus at entry. In August 2010, VA received a statement from the Veterans private treating physician indicating the Veteran has intermittent foot pain and edema as a result of his pes planus. The Veteran was afforded a VA examination in March 2011. The examiner, a physician board-certified in occupational medicine, concluded that the foot injury occurred during active service. The Veteran reported having asymptomatic flat feet before service, which became symptomatic during active service as a result of physical training and footwear. The examiner noted painful motion, tenderness, and pain at rest supporting the diagnosis symptomatic pes planus, requiring inserts, limiting physical activities, with occasional swelling and leg and heel pain after prolonged walking or standing. The Veteran described weekly flare-ups which lasted hours and limited his inability to exercise or run. In a July 2011 visit to a private podiatrist the Veteran discussed symptomatic flat feet which began in the military and he questioned whether his feet were aggravated by marching in military boots. The podiatrist concluded that the daily and training performed in military boots could have aggravated his condition beyond its normal progression. While the opinion is not specifically stated as to degree of probability, it offers support for the Board’s decision in this matter. In his February 2014 hearing the Veteran testified that he learned he had flat feet during his pre-enlistment examination. The Veteran played basketball in high school and he had no problems with his feet. In service he began to feel foot discomfort in physical training which with the help of insoles in his boots did not “sideline” him. During his second period of service in the Gulf War, he was again aware of the foot problem, as it did not stop his activities and he did not seek treatment other than putting insoles in his shoes. Between active duty in 1986 through 1990 the Veteran worked for the Seattle highway patrol and he continued to feel tingling in his feet with occasional numbness that began on active duty. In addition to numbness and tingling, the Veteran’s arches are painful such that he can’t climb steps or run and gets blisters on his feet where his arches should be. In March 2018 the Veteran underwent a VA examination in which the diagnoses of degenerative arthritis and pes planus of both feet with right heel spur were confirmed. The Veteran described aching pain from his mid-foot to the forefoot that worsens with weight bearing. There were no callouses, extreme tenderness on the plantar surfaces, marked pronation, inward bowing, or other symptoms apparent upon examination. The Veteran had pain with weight bearing which limited standing and walking for prolonged periods. The examiner concluded that based upon the normal foot examination on re-enlistment in November 1990 that there was no evidence to support a worsening of the Veteran’s asymptomatic pes planus while on active duty and that the symptoms were less likely than not incurred in, caused or aggravated by the claimed in-service injury, event or illness. Instead, the most likely cause of the Veteran’s bilateral foot osteoarthritis, pes planus and right heel spur were noted as age, obesity and years of work as a police officer after leaving the military. The Board fids the lay statements of the Veteran to be credible and notes that the negative nexus opinions of the second VA examiner is of decreased probative value as the examiner did not consider the competent lay evidence of the Veteran, his ex-wife and fellow soldier or the circumstances of his service. The Veteran’s buddy statements both address service in the Gulf War as aggravating his asymptomatic condition, however the second examiner relied upon a negative examination preceding his service in the Gulf War to the exclusion of the written statements of the Veteran’s fellow soldier and his ex-wife. Accordingly, the Board places more probative weight on the positive nexus opinions of the March 2011 VA occupational physician examiner and the Veteran’s private treating physician. In summary, the evidence shows that the Veteran’s asymptomatic bilateral pes planus became symptomatic during his active service has a result of his increased physical activity. Clear and unmistakable evidence has not been shown to establish that the aggravation of the Veteran’s bilateral pes planus was due to the natural progress of the disease Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for the aggravation of bilateral pes planus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for hypertension. For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, DC 7101 n.1 (2017). A diagnosis of hypertension "must be confirmed by readings two or more times on at least three different days." Id. The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013) The Veteran contends that the onset of his hypertension occurred during active duty service in the Persian Gulf War. The Veteran has a current diagnosis of essential hypertension uncontrolled on medication. Private treatment records show that the Veteran has continuously been under the care of a physician for hypertension since February 2002 and is currently taking Lotrel to control his hypertension. Thus, the first element of service connection is met. The Veteran and his ex-wife provided testimony and a statement, respectively as to symptoms of hypertension in service and within a year after service. The Veteran’s first primary care physician visit after returning from Desert Storm was in February 2002 when he was advised that he had hypertension that was labile and not well-controlled by medication after that point. During his March 2011 VA examination the Veteran indicated that he had headaches associated with his hypertension. The examiner concluded that service was the clear etiology for the Veterans hypertension without offering his rationale. In April 2019, a second VA examiner concluded that the onset of the Veteran’s hypertension was less likely than not during service as there was no evidence to support hypertension prior to his first physician visit after service in 2002 and that obesity and genetics contributed to the development of hypertension. As the examiner did not consider the Veteran’s lay statements or the lay statement of his ex-wife, the probative value of her opinion is diminished. The Board observes that absent service treatment records, the Veteran and his ex-wife are competent to report their recollections. See Layno, supra. As the Board finds the Veteran’s statements and the statement of his ex-wife to be credible and consistent with other evidence, the presumption for the chronic condition of hypertension is applicable, given that the manifestation of symptoms of hypertension during active service and within the first year after service satisfies the requirement for an inservice incurrence and establishes a nexus between service and the Veteran’s present disability. Furthermore, the Board finds the March 2011 VA opinion is more probative than the negative opinions of record. The negative opinions of record are in adequate because the do not address the Veteran’s lay statements. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for hypertension is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R.R. Watkins Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.