Citation Nr: 21015825 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 11-17 607 DATE: March 18, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. FINDING OF FACT The Veteran’s pes planus pre-existed entry into service and unequivocally did not worsen beyond its natural progression during active service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1131, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the United States Army from March 1981 to March 1983. He testified before the undersigned at a Travel Board hearing in March 2017. A transcript of the hearing is of record. In March 2018, the Board of Veterans’ Appeals (Board) decided the issue addressed in this remand. The Veteran appealed. In October 2020 the United States Court of Appeals for Veterans Claims (the Court) granted a joint motion for remand (JMFR), vacating the Boards March 2018 decision and remanded the following issue, service connection for bilateral pes planus. in accordance with the terms of the JMFR. The Court determined that the Board erred when it failed to inform the Veteran that it is his burden to first show aggravation before the burden shifts to the government to show by clear and unmistakable evidence that the condition was not aggravated beyond its natural progression. The Board concludes that with the Court’s JMFR notice the Veteran and his representative have been informed of the need to show aggravation to then place the burden on the VA. The Veteran and his representative were informed in October 2020 that they could submit additional evidence if desired. No additional evidence has been received, and as concluded below, there was no service aggravation of the pre-service pes planus, so the matter is ready for the Board’s review. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Federal Circuit has distinguished between those cases in which the pre-existing condition is noted upon entry into service, and cases in which the pre-existence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In a case where there is no pre-existing condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that(a) the condition pre-existed service and(b) the pre-existing condition was not aggravated by service. Wagner, 370 F.3d at 1345. “[I]f a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” Wagner, 370 F.3d at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that such increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable (obvious, manifest, and undebatable) evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306 (b). The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b). History of pre-service existence of a disease does not constitute a notation of such condition. See Crowe v. Brown, 7 Vet. App. 238, 240 (1994). Entitlement to service connection for bilateral pes planus The Veteran’s service treatment records (STRs) indicate that in his March 1981 enlistment examination pes planus was identified as asymptomatic. In April 1981, he denied problems with his feet. However, in May 1981, the Veteran complained about his left and right-arches; he reported his history of pes planus; and further reported he has trouble standing and running. A July 1981 examination noted marked pes planus, with a medial bulge, and assessed the Veteran with pes planus, “no relief” and further noted that the arch support was worn out. A July 1981 radiographic report of both feet showed that the routine views of the tarsals, metatarsals and phalanges indicated bilateral pes planus; however, no bony destruction or dislocations were demonstrated. Examination notes from August1981 note the Veteran’s reports of a childhood accident which appears to have caused his pes planus and later he wore arch supports. A podiatrist was asked to evaluate the Veteran and concluded that a surgical procedure is not indicated; the Veteran should respond to orthotic treatment; and orthotics will need to be adjusted and modified accordingly. April 1982 notes indicate that the Veteran had not had relief from arch supports and was requesting surgery. In May 1982, the Veteran reported intermittent periods of foot pain and decreased range of motion, but not necessarily after running. He added that his orthotics were not helping. In December 1982, the Veteran continued to present with complaints that his arch supports gave no relief and he requested surgery. A December 1982 consultation report noted that the Veteran’s feet exhibited a good range of motion. The examiner stated there is no surgical procedure which would improve foot posture without destroying function. In the Veteran’s March 1983 separation examination, “Foot trouble” was marked “NO” and his health was noted as excellent. The Veteran’s October 1984 examination for the Reserves had the category of “Feet” checked as normal. In the Veteran’s October 1986 examination for Special Forces/Airborne school, his feet were again marked normal. An October 1991 enlistment examination for the Army National Guard noted that the Veteran’s pes planus was once again asymptomatic. VA records produced after the Board’s August 2017 remand indicated that the Veteran presented for routine examinations for pes planus between December 1998 and August 2001, in which he was so assessed, and he made requests for prosthetics. Pulses in his feet were weak, there was pain on palpation, and he reported his orthotics did not help. In April 1999, he received Custom Foot Orthoses. By August 2001, he was fitted for and received Footmaxx orthotics as a replacement for Custom Foot Orthoses. The Veteran presented in July 2001 at Long Beach VA with left-foot pain, which he reported as burning, continuous and worsened with walking. He added it interferes with work and physical activities. As indicated above, he was prescribed orthotic arches. In April 2009, Veteran’s reported to his primary care physician at Long Beach VA, that he was biking five miles one to two times per week. In October 2009, the Veteran presented at Long Beach VA for orthotics for his bilateral flat feet and was fitted in June 2010. It was noted that he did not need a podiatric referral. October 2010 outpatient notes indicate that the Veteran still reported bilateral foot pain. A May 2011 visit to his doctor for a physical examination after a job offer for policeman indicates that the Veteran had no complaints, was feeling well and stated no pain in his feet. Another request for new orthotics followed in November 2012. However, in January 2013, it appears that the Veteran did not follow through with his prosthetic request. In September 2016, the Veteran underwent an in-person VA examination/Disability Benefits Questionnaire (DBQ) for pes planus, in which his 1980 diagnoses for pes planus of right and left feet were noted. The September 2016 VA examiner noted the functional impact as affecting the Veteran’s ability to run. She opined that the Veteran’s pes planus, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. She explained her opinion by referring to the record, similar to as set forth above, but also especially noted that the Veteran denied foot trouble in his March 1983 separation examination from active duty service; from 1983-1994 during Reserve and National Guard service the Veteran denied foot trouble including any foot pain; there were no medical restrictions in his December 1994 annual medical certificate; he had no medical consultation or treatment for a foot condition for seven years after 1994; and he had no medical consultation or treatment for a foot condition for three and a half years after December 2012. The September 2016 VA examiner further observed that the Veteran experienced an 80-pound weight gain in 22 years after leaving the military, from which she concluded that this added weight gain may contribute to foot pain. Additionally, in referring to two articles on foot functioning and injuries in the military, the September 2016 VA examiner noted that studies of military recruits have shown no evidence of later increased injury or foot problems due to flat feet, in a population of people who reach military service age without prior foot problems; however, these studies cannot be used to judge possible future damage from this condition when diagnosed at younger ages. She added that they also cannot be applied to persons whose flat feet are associated with foot symptoms or certain symptoms in other parts of the body (such as the leg or back), possibly referable to the foot. The examiner concluded that there is not sufficient material medical information to establish a nexus between the Veteran’s claimed foot condition, aggravation and his military service In light of the production of some additional medical records pertaining to the Veteran’s pes planus and as directed by the Board in its August 2017 remand should additional records be found and reviewed, an addendum opinion for clarification was produced in October 2017 by the same VA examiner. The October 2017 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 an in-service event, injury or illness. She provided the same rationale for her opinion as in the September 2016 opinion. Additionally, the October 2017 VA examiner specifically noted and summarized the new evidence associated with the claims file after the August 2017 remand. Nonetheless, she stated that the review of additional submitted medical documentation “does not change my original opinion [September 2016]. I respectfully stand by my original medical opinion. In this case, the Veteran’s pes planus was noted upon entry, thus the presumption of soundness does not apply. As such, the Veteran can only bring a claim for aggravation of the preexisting condition, and he carries the burden of showing that the pre-existing condition was aggravated (ie worsened) during service by presenting evidence of symptomatic manifestations of the condition during service. If the presumption of aggravation arises, the burden would then shift to VA to rebut a finding that service aggravated the condition beyond the natural progression of the disability. Wagner v. Principi, 370 F.3d 1089, (Fed. Cir. 2004). Ultimately, for the reasons set forth further below, while there may have been a temporary flare-up concerning the Veteran’s feet during service, there is no evidence of aggravation of the underlying condition. The Veteran’s arguments, as set forth on his behalf by his representative in an appellate brief, include that the evidence does not reflect the natural progression the Veteran’s pes planus, as opposed to the aggravation of the disorder he experienced in service. Additionally, the representative points to the Veteran’s post-service record as indicating ongoing treatment, which establishes “continuity of symptomatology.” The representative adds that while the examiner found the Veteran’s weight gain in a 22-year period subsequent to service to be pertinent to this claim, the excessive weight does not account for the post-service complaints and treatments following service and leading up to the Veteran’s increased weight. Indeed, the Veteran himself, in his January 2018 Statement in Support of Claim, offers the December 1998 visit for an orthotics request as proof that his weight, then recorded at 246 pounds, was not much less than subsequent greater weights. The argument, therefore, appears to be that the post-service complaints and treatments are, in turn, proof of the in-service aggravation of pes planus and in an otherwise natural progression, the necessity would not have been as serious and frequent. The Board does not agree with this reasoning. The Veteran concluded military service of any sort in December 1994. According the record as it now stands, visits to VA between December 1998 and August 2001 were routine and were for requests for orthotic replacements. The Veteran presented once to Long Beach VA in July 2001 for left-foot pain. However, the Board cannot find records between August 2001 and October 2009 indicating that the Veteran presented with complaints, sought treatment or reported any difficulties whatsoever related to his foot disorder. This amounts to approximately eight years without “post-service complaints and treatments.” When the Veteran presented again to his doctor for orthotics in October 2009, his weight was record at 274.2 pounds, with a body mass index (BMI) of 34.3, indicating obesity. A year later, October 2010 outpatient notes mention the Veteran’s reports of bilateral foot pain. Yet, by May 2011, the doctor notes that he reported no pain whatsoever in his feet. Eight years without reported symptoms and treatment does not support a contention of aggravation. Moreover, it is not, as the Veteran’s representative would have it, that medical records do not show a change in diagnosis or suggest that the disability no longer exists, but that the inconsistency itself in the record in this period of 1994 to 2011 does not suggest a condition having been permanently made worse or have increased in the underlying pathology by active duty service. Furthermore, after eight years of not seeking treatment, when treatment is eventually sought, the Veteran’s weight, already progressing from at least December 1998, stands out as an exceptional incremental physical change. According to the VA examiner, this may account for worsened pes planus, specifically regarding its pain, which would naturally follow up on overall weight gain, which is significant, to say the least. Moreover, it is noted that while there may have been some temporary episodes of foot pain treated in service, this is not demonstrative of aggravation with subsequent periods of asymptomatic foot pathology. The Board also reviewed the Veteran’s lay statements, hearing testimony, and Appellate Brief that that is pes planus was aggravated by his time in-service. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to the aggravation of a pes planus disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In sum, The Veteran’s STRs establish pes planus as existing before service. The Veteran presented with complaints and requested surgical treatment. It was determined that surgery was not indicated. Moreover, in the Veteran’s March 1983 examination for separation from active duty service, “Foot trouble” was marked “NO;” his October 1984 examination for the Reserves had the category of “Feet” checked as normal; and, three and a half years after active duty service concluded, the Veteran underwent the October 1986 examination for Special Forces/Airborne school. Moreover, as late as October 1991, in the enlistment examination for the Army National Guard, the Veteran’s pes planus was noted as asymptomatic. The foregoing does not plausibly reflect a pes planus disorder made permanently worse by events in service. Indeed, the Veteran, in applying for the Special Forces/Airborne school, viewed himself ready and able to engage in parachute training. The September 2016 and October 2017 VA opinions refer to the STRs; the VA examiner pointed to the long periods in the record during which the Veteran went without treatment; she pointed to the effects of excessive weight on the feet, with resulting pain; and from the foregoing, she concluded there is not sufficient material medical information to establish a nexus between the Veteran’s claimed foot condition, aggravation and his military service. While he may have had some flare-ups due to the rigors of service, it is not shown that the underlying pathology underwent any permanent increase, as demonstrated by essentially normal findings at separation and on immediate post-service physical examinations as reported above. Addressing the JMFR above, the Veteran has the burden to show aggravation with evidence of symptomatic manifestations of pes planus during service. Here, there is no competent evidence to show an in-service increase or aggravation of his pes planus condition. As indicated above, there is also no indication of any complaints or treatments for the aggravation of a pes planus disorders related to service or for several years post-service. See Mason v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). This premise is further evidenced by the fact that the Veteran did not submit a compensation and pension application for his service-related pes planus disorder until many years after separation from service. For all of the above reasons and based on the findings and opinions of the September 2016 and October 2017 VA examinations, the Board finds that the Veteran’s pes planus was not aggravated by active duty service. For these reasons, the Board finds that more likely than not there is no competent evidence to show a measured worsening of the Veteran’s pes planus during active service. Moreover, the Veteran has not met his burden to show an increase or aggravation of pes planus during active service. With no competent evidence to   show an increase in severity of the pes planus during service, the presumption of aggravation does not arise. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Accordingly, claim for service-connected aggravation is denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.