Citation Nr: 21015229 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-02 367 DATE: March 17, 2021 ORDER Entitlement to service connection for a bilateral foot disability is denied. Entitlement to service connection for a left lower extremity venous disability is denied. FINDINGS OF FACT 1. The Veteran’s bilateral pes planus clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service. 2. There is no in-service event related to the Veteran’s bilateral hammer toes or plantar fasciitis, nor an indication that the disabilities are related to service. 3. There is no in-service event related to the Veteran’s chronic venous stasis, nor an indication that the disability is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for entitlement to service connection for a left lower extremity venous disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to May 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA). This case was remanded in October 2019 for further development. In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In November 2020, the Veteran and his representative were notified that there was an audio malfunction throughout his testimony and the Board was unable to produce a complete transcript of the proceeding. The Veteran was given the option to request a new hearing but did not respond to the correspondence. As a result, the Board finds that he waived his right to a new hearing and will proceed with adjudication with the testimony that is available. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issues of service connection for pes planus to encompass any bilateral foot disability and service connection for a left lower extremity varicose vein to encompass any left lower extremity venous disability. 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). A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004). 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). Clear and unmistakable evidence can consist of the veteran’s own admissions of a preservice disability. Horn v. Shinseki, 25 Vet. App. 231, 237 (2012). If there is clear and unmistakable evidence to show that the veteran’s disability was both preexisting and not aggravated by service, then the veteran is not entitled to service-connected benefits for the preexisting condition. Wagner, 370 F.3d at 1096. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 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). 1. Entitlement to service connection for a bilateral foot disability. The Veteran submitted a foot Disability Benefits Questionnaire (DBQ) reflecting a diagnosis of bilateral pes planus, bilateral hammer toes, and bilateral plantar fasciitis. See October 2019 foot DBQ. The Veteran was noted to have bilateral asymptomatic pes planus upon his entrance to the Reserves, see January 1964 entrance examination, but was not noted to have such disability upon his entrance to active duty a year later. See May 1965 active duty examination. The Veteran testified that he had the same foot symptoms when he entered service as when he left. See September 2019 Board hearing. Because the Veteran’s active duty examination does not note pes planus, the Board finds that the presumption of soundness applies. Thus, the Board must determine if the presumption of soundness has been rebutted. The Board finds that the January 1964 Reserves entrance examination is clear and unmistakable evidence that the Veteran’s bilateral pes planus pre-existed service. The Board also notes that the Veteran answered in the affirmative when he was asked whether he had pain when he stood and walked for longs periods of time prior to service. See September 2019 Board hearing. As a result, the Board finds that there is clear and unmistakable evidence that the Veteran’s pes planus pre-existed service. The Board acknowledges that the Veteran’s representative asserted that the Veteran’s service treatment records (STRs) could not be taken at face value when he was noted to have pes planus in 1964 but not in 1965 or 1967. See July 2020 written brief presentation. However, the January 1964 Reserves examination, in combination with the Veteran’s testimony that he had pre-existing symptoms, heavily outweighs the absence of evidence in later STRs and is sufficient to demonstrate clear and unmistakable evidence of a pre-existing disability. The Board also finds that there is clear and unmistakable evidence that the Veteran’s pes planus was not aggravated during service, because the Veteran testified that he had the same symptoms before service as when he left. Thus, because there is clear and unmistakable evidence that the Veteran’s pes planus pre-existed service and was clearly and unmistakably not aggravated by service, the Board finds that the presumption of soundness has been rebutted as to the Veteran’s pes planus, and service connection is not warranted for bilateral pes planus. The Board notes that the Veteran has a diagnosis of bilateral hammer toes and bilateral plantar fascitis. However, there is no evidence establishing that an event, injury, or disease occurred in service or an indication that the disabilities may be associated with the Veteran’s service. The testimony available reflects that the Veteran’s symptoms prior to service were the same as when he was discharged. There is no evidence, including lay statements, that reflect an in-service event or an indication that the disabilities are related to the Veteran’s service. The Board notes that, if the presumption of soundness applied, the same is true for his pes planus as well, and there is no evidence of an in-service event or an indication that the Veteran’s pes planus is related to service. As a result, remand for a VA examination is unnecessary. As discussed, there is no evidence of an in-service event related to the Veteran’s bilateral hammer toes and plantar fasciitis (and pes planus, if the presumption of soundness were to apply), nor an indication that the disabilities are related to service. As a result, the preponderance of the evidence is against the matter, and service connection for a bilateral foot disability is not warranted. 2. Entitlement to service connection for a left lower extremity venous disability. The Veteran was noted to have an asymptomatic varicocele on his Reserves entrance examination, but there was no disability noted for his lower extremity in either his Reserves examination or his active duty entrance examination. See January 1964 STRs; May 1965 STRs. Thus, the Board finds that the presumption of soundness applies. The Veteran is diagnosed with chronic venous stasis. See September 2019 artery and vein DBQ. There is no evidence establishing that an event, injury, or disease occurred in service or an indication that the Veteran’s disability may be associated with his service. Prior to the current appeal, he submitted a statement describing problems with pain in his leg and a basketball injury during service. See December 2012 statement. However, he did not identify which leg he was discussing, and the Board cannot verify which leg is applicable in STRs. As a result, the Board assigns the statement no probative weight and it is not considered evidence of an in-service event or an indication that the Veteran’s disability may be associated with his service. Thus, remand for a VA examination is unnecessary. As discussed, there is no evidence of an in-service event related to the Veteran’s chronic venous stasis, nor an indication that the disability is related to service. As a result, the preponderance of the evidence is against the matter, and service connection for a left lower extremity venous disability is not warranted. The Board is grateful to the Veteran for his honorable service and regrets a more favorable decision could not be reached. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.