Citation Nr: 21015008 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-23 559 DATE: March 16, 2021 ORDER Service connection for bilateral pes planus is granted. Service connection for a lumbar spine disability, to include as secondary to service-connected right foot hallux valgus and/or bilateral pes planus is denied. FINDINGS OF FACT 1. The Veteran's preexisting bilateral pes planus was aggravated by service. 2. A lumbar spine disability was not present in service or for years thereafter and is not etiologically related to service. 3. A lumbar spine disability has not been caused or aggravated beyond its normal course of progression by bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria for entitlement to service connection for a lumbar spine disability, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1976 to September 1978. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for bilateral pes planus and denied service connection for a lumbar spine disability. The Veteran’s notice of disagreement (NOD) was received in September 2015. The RO issued the statement of the case (SOC) in April 2016, and the Veteran’s VA Form 9, substantive appeal was received in May 2016. In September 2018, the Board denied the Veteran’s claim for service connection for a lumbar spine disorder, entitlement to service connection for bilateral pes planus, and entitlement to an initial compensable rating for pseudofolliculitis barbae. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In an October 2019 Order, the Court vacated the Board’s September 2018 decision with respect to the above issues and remanded the matter pursuant to an October 2019 Joint Motion for Partial Remand (JMPR). Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, to include arthritis, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a).  However, when a question is raised as to whether a particular disability claimed by the Veteran pre-existed service, 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 examination, acceptance, and enrollment into service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). If a pre-existing disability is noted at entry, then the presumption of soundness is rebutted, and aggravation of that disability must be demonstrated for service connection to be granted. A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. 1. Service connection for bilateral pes planus. The Veteran contends his current bilateral pes planus was aggravated by his military service. Specifically, he asserts that his pes planus was aggravated by doing a lot of walking and running while carrying heavy loads on his back. See September 2015 NOD. As an initial matter, the Board notes that bilateral pes planus was “noted” as asymptomatic on the Veteran’s September 1976 service entrance examination. Thus, this demonstrates bilateral pes planus on entry to military service. As the Veteran’s bilateral pes planus was “noted” at entrance into service, the presumption of sound condition does not attach at service entrance with regard to such disability. 38 U.S.C. §1111. Consequently, service connection may be granted only if it is shown that the Veteran’s bilateral pes planus increased in severity during service and, if so, such was not clearly and unmistakably due to the natural progression of such disorder. 38 U.S.C. §1153; 38 C.F.R. §3.306. In this regard, the Veteran’s service treatment records show that his duties caused him foot pain throughout his service. In January 1978, he presented with bilateral foot pain, he was given the impression of flatfeet. It was also noted that he had “pain on plantar surface” in both feet. In February 1978, the Veteran presented with bilateral foot pain and he was diagnosed with “mild hallux valgus, pes planus,” and recommended evaluation for a change of MOS or discharge. In March, May, and June 1978, he continued to complain of bilateral foot pain. In May 1978, it was noted that the Veteran had been experiencing bilateral foot pain for several months. The Veteran reported increased pain with standing, marching, and running. In April 2015, the Veteran was afforded a VA examination. At such time, the examiner opined that the Veteran’s pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. As rationale, the examiner explained that there was no medical records evidence to support that the Veteran’s bilateral pes planus was aggravated beyond its natural course during service. He further stated that there were no service treatment records or civilian medical records to support complaints or treatments for the condition. In the October 2019 JMPR, the parties found that the Board erred by failing to address the same VA examiner’s July 2015 VA addendum opinion. In this regard, VA obtained an addendum opinion from the examiner in July 2015. At such time, the examiner noted the Veteran’s continued complaints of bilateral pes planus throughout his military service. The examiner stated that the Veteran has hallux valgus that existed prior to enlistment and opined that it is at least as likely as not that marching and an injury aggravated the condition during service. The examiner stated that the Veteran’s medical records support that the Veteran’s hallux valgus was aggravated by his military service and noted that while there was mention of pes planus, it appeared that the Veteran was recommended for change in MOS due to the hallux valgus and not the pes planus. On his September 2015 NOD, the Veteran stated that during service he had to do a lot of walking and running while carrying a heavy load on his back. He stated his belief that these conditions contributed to the worsening of his pes planus and reported that he has continued to have difficulty walking and standing on his feet. The record contains a February 2018 VA examination that also shows the Veteran had pain with use of the right foot. The examination was negative for pain on manipulation of the feet, swelling, characteristic callouses, extreme tenderness of plantar surfaces of the feet, decreased longitudinal arch height of the feet on weight-bearing, objective evidence of marked deformity, and pronation. However, the examiner did not provide an opinion. The Veteran was afforded another VA examination in September 2020. The examiner noted that the Veteran had current diagnoses of bilateral pes planus, first diagnosed in 1976 and bilateral hallux valgus, first diagnosed in 2020. With regard, to medical history, the examiner noted that the Veteran stated that his foot condition began six years ago but it is not clear which condition the Veteran was referencing. The Veteran stated that his current symptoms are swelling and pain with walking too far. The Veteran reported severe flare-ups affecting both feet and stated that flare-ups occur every day, can last weeks, and are precipitated by walking and standing. With regard to his bilateral pes planus, the Veteran was noted to have pain on use of both of his feet but no pain on manipulation of the feet. There were no current signs of swelling, characteristic callouses, extreme tenderness of plantar surfaces of the feet, objective evidence of marked deformity, or pronation. However, the Veteran did have decreased longitudinal arch height of both feet on weight-bearing. With regard to the Veteran’s bilateral hallux valgus, the examiner indicated that the Veteran had mild or moderate symptoms affecting both feet. The examiner found that the Veteran had minimally tender right greater than left hallux valgus which is mild in nature. It was noted that the Veteran does not use orthotics. Pain was noted on exam for both feet and caused functional loss in the form of pain on weight-bearing and interference with standing. There was objective evidence of pain on weight bearing testing of the right and left feet but no evidence of pain on active or passive range of motion or non-weight-bearing of either foot. An addendum VA medical opinion was also obtained in September 2020. The VA physician opined that the Veteran’s asymptomatic right foot pes planus which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. For rationale, the physician stated that there is no evidence that the Veteran’s asymptomatic right foot pes planus was aggravated while in service. The physician noted that the Veteran had foot pain due to hallux valgus and an injury to his right great toe from athletics but there is no evidence pes planus was aggravated by service. As noted above, because the Veteran’s bilateral pes planus was noted on his March 2009 service enlistment examination, the presumption of soundness does not attach with regard to that condition, thereby triggering the application of 38 U.S.C. § 1153 to establish whether the presumption of aggravation attaches. The evidence of record shows that there was an increase in the severity of pes planus during service. The Veteran’s STRs clearly indicate treatment for bilateral foot pain, which was attributed, at least in part, to the Veteran’s bilateral pes planus. As the Veteran’s bilateral pes planus was noted as asymptomatic on entrance and his STRs document that he began experiencing persistent bilateral foot pain due to his pes planus during service and continues to experience symptomatic bilateral pes planus post-service, the Board finds that there was an increase in the severity of his pes planus during service. Therefore, the presumption of aggravation attaches. Again, in order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. 38 C.F.R. § 3.306. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). In this case, there is not clear and unmistakable evidence that the increase in severity of the Veteran’s bilateral pes planus was due to the natural progression of the disease. Considering the evidence in opposition to the Veteran's claim, the Board acknowledges that there are several VA medical opinions of record. While the April 2015 VA examiner opined that the Veteran’s bilateral pes planus was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness, the opinion was based on the inaccurate factual premise that the Veteran’s STRs did not show treatment for pes planus during service. The July 2015 addendum opinion from the same examiner only addressed hallux valgus; finding that, “it is at least as likely as not that marching and an injury aggravated [his hallux valgus] while he was in the military.” The examiner noted that the Veteran was seen for pes planus during service but stated that, “it appears that [the Veteran] was recommended for change in MOS due to the hallux valgus and not the pes planus.” Although the December 2020 VA addendum opinion concluded that there was clear and unmistakable evidence that the condition was not aggravated by the Veteran's service, the VA examiner failed to address and reconcile the notation of the Veteran's disability on his enlistment examination as being asymptomatic with the repeated reports of the condition worsening and causing the Veteran pain during his period of active duty service. Additionally, the examiner appeared to confuse the Veteran’s multiple foot disabilities and only provided an opinion regarding the Veteran’s right foot pes planus. Thus, in sum, the Board finds that after resolving the benefit of the doubt in favor of the Veteran, service connection for bilateral pes planus is warranted, and the appeal is granted. 38 C.F.R. §§ 3.102, 3.303(a); see Gilbert, supra. 2. Service connection for a lumbar spine disability. The Veteran contends that he is entitled to service connection for a lumbar spine disorder. In this regard, he reported his lumbar spine disorder was a result of carrying heavy loads on his back as part of military training and daily activities. He also asserts that his feet problems contributed to his lower back condition. See September 2015 Notice of Disagreement. A lumbar spine disability was not diagnosed until many years after service, and there is no competent evidence to establish that any current lumbar spine disability is due to any event or injury which occurred during the Veteran's period of active duty. STRs do not show that the Veteran received treatment for his back during active duty, and no back disability was diagnosed at discharge. The Veteran has not stated that his current back disability and chronic back pain began during active service. Post-service, an October 2014 VA treatment note indicates that the Veteran was prescribed meloxicam for chronic back pain. Mild degenerative arthritis was shown by X-ray in September 2020. The Veteran was afforded a VA examination in September 2020. The examiner diagnosed degenerative arthritis of the lumbar spine, which he opined was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated, that after extensive review of the Veteran’s STRs and statements, there is no evidence found that would lead the examiner to say that there was a lumbar spine disorder or functional impairment that had its onset during or is otherwise related to service. The examiner noted that the Veteran’s first complaint of back pain was in 2014, some 36 years after service. The examiner concluded that the Veteran’s current diagnosis of mild osteoarthritis is as likely as not due to the attrition of time and not due to any service-connected condition or activities in service as the Veteran described. The examiner stated that lumbar osteoarthritis at age 66 is a very common diagnosis and does not require trauma and/or injury to develop. The examiner concluded that the lumbar osteoarthritis is therefore less likely as not service related. With regard to secondary service connection, the examiner concluded that the Veteran’s current lumbar spine disability is less likely as not due to the service-connected foot condition. For rationale, the examiner stated that there is no association between the Veteran’s service-connected foot disabilities and his lumbar spine disability. The examiner explained that this type of secondary association only occurs with lower extremities injuries which produce noticeable changes in posture, stance and gait which includes fractures of the long bones with more than 2.5cm loss of bone length, ankylosis of the major joints - ankle, knees or hips, or infections that cause joint destruction. The examiner stated that the Veteran does not have objective physical findings or history of these conditions. The examiner concluded that, due to the lack of findings of an orthopedic disorder which would affect the lumbar spine, it is less likely than not the diagnosed lumbar condition is secondary to, or aggravated beyond it's normal progression by the Veteran's service connected conditions. The Board finds the September 2020 VA medical examiner’s opinion highly probative because the examiner considered all of the pertinent evidence of record, to include the Veteran's statements and medical records, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. 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"). Notably, there is no medical opinion to the contrary. Additionally, while not dispositive, the passage of many years between discharge from active service and the medical documentation of a claimed disability is one piece of evidence weighing against a claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran believes that his lumbar spine disability is related to his service. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, and requires knowledge of the musculoskeletal system, anatomy, and the interpretation of radiographic diagnostic testing. Therefore, it is outside the competence of the Veteran because the record does not show that he has the skills or medical training necessary to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Based on the foregoing, the Board finds that a preponderance of the evidence is against the claim and entitlement to service connection for a lumbar spine disability is not warranted. 38 U.S.C. §§ 5107; see Gilbert, supra. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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.