Citation Nr: 21015147 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 09-48 224 DATE: March 16, 2021 ORDER Entitlement to service connection for a bilateral foot disability, to include bilateral pes planus is granted. FINDINGS OF FACT 1. The Veteran’s pes planus clearly and unmistakably existed prior to entry of service. 2. The evidence is in equipoise as to whether the Veteran’s bilateral pes planus clearly and unmistakably was aggravated by the Veteran’s service, to include those disabilities that arose and still exist in the progression of the disease. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability, to include bilateral pes planus, are met. 38 U.S.C. §§ 101 (24), 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1961 to February 1981, and received the Bronze Star Medal and the Vietnam Service Medal with 4 Bronze Service Stars. In August 2013, the Veteran testified at a Board hearing before a Veterans Law Judge. Service Connection Legal Principles and Regulations Service connection may be granted 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 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). If a preexisting disability is noted upon entry into service, a Veteran cannot bring a claim for service connection for that particular disability, but the Veteran may bring a claim for service-connected aggravation of that disability. 38 U.S.C. § 1153 (2012); Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). In such cases, a preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153 (2012); 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. 38 C.F.R. § 3.306 (b). Analysis At the onset, the Board notes that the Veteran’s pes planus was noted upon entry of service. In such case, the Veteran can only be awarded service connection based on an aggravation of this disability during his service. A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that by clear and unmistakably evidence the increase in disability is due to the natural progression of the disease. Here, the Board finds that the evidence of record reflects an increase of the Veteran’s pes planus during service. Specifically, although pes planus was found upon entrance into service, the Veteran was deemed physically suitable for, and accepted into, service, which the Board finds to be indicative of an asymptomatic condition. In addition, the Veteran denied any foot trouble on his entrance report of medical history and has since denied any knowledge of, or symptoms related to, flat feet prior to service. Therefore, service treatment records documenting right foot pain, possible metatarsalgia, and tibial sesamoiditis in August 1975, symptomatic bilateral pes planus in January 1970, and a history of foot trouble in December 1980 are particularly notable when combined with the Veteran’s lay statements of foot pain during service. As a result, the Board finds that the record reflects an increase of severity of the Veteran’s pre-existing bilateral pes planus during active duty. See June 2019 Board remand. Thus, the burden shifts to VA to establish that there is clear and unmistakable (obvious or manifest) evidence that the increase in the Veteran’s disability was due to the natural progression of the disease. Upon review of the evidence of record, the Board finds that the evidence fails to show by clear and unmistakable evidence that the increase in the Veteran’s disability was due to the natural progression of the disease. As this case has been pending for several years, throughout the pendency of the appeal, the Veteran has consistently contended that his foot pain increased during service and continued after his separation of service. The Board finds the Veteran’s statements of increased foot pain during service to be credible. As discussed above, the Veteran’s statements of increased foot pain are supported by the documented service treatment records that reflect symptomatic pes planus, along with the documented complaints of foot pain during service. The Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Also, the record reflects VA medical opinions from September 1996, November 2012, February 2014, and an addendum opinion issued in October 2014. Additionally, VA obtained a Veteran’s Health Administration (VHA) opinion in July 2016. The Board has previously found all these prior VA medical opinions inadequate. While all these opinions provided negative nexus opinions, these opinions failed to provide an adequate rationale and/or consider the Veteran’s competent lay statements of foot pain in service. As such, as discussed in more detail above, the Court vacated the Board’s April 2017 denial and remanded, which led to the Board’s request for yet another VA medical opinion. Here, in the December 2019 VA medical opinion, the VA examiner opined that the Veteran’s pes planus, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by his service. As this opinion simply refers to the previous inadequate VA medical opinions, without providing a rationale for the basis of the opinion rendered or considering the Veteran’s lay statements of pain, the Board finds that this opinion is also inadequate. Given such, the Board finds that the record does not rebut the presumption of aggravation. In other words, the Board finds that the record does not establish by clear and unmistakable evidence that the increase in the severity of the Veteran’s pes planus was due to the natural progression of this disability. Given such, the Board finds that the evidence is in equipoise as to whether the Veteran’s pes planus was aggravated beyond the natural progression during the Veteran’s service. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for a bilateral foot disability, to include bilateral pes planus is warranted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.