Citation Nr: 21023133 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-36 324 DATE: April 20, 2021 ORDER Entitlement to service connection for a bilateral foot condition, to include bilateral pes planus, compensated forefoot/rearfoot varus, osseous hypertrophy talus and calcaneus and tendonitis, is denied. FINDINGS OF FACT 1. Bilateral pes planus preexisted the Veteran’s service. 2. There was no increase in the severity of the Veteran’s preexisting bilateral pes planus during service. 3. The preponderance of the evidence is against finding that a bilateral foot condition, to include compensated forefoot/rearfoot varus, osseous hypertrophy talus and calcaneus and tendonitis began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The presumption of soundness does not attach and preexisting bilateral pes planus was not aggravated during service. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. 2. The criteria for service connection for a bilateral foot condition, to include compensated forefoot/rearfoot varus, osseous hypertrophy talus and calcaneus and tendonitis are not 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 in the United States Navy from February 1989 to February 1993. This matter comes before the Board on appeal of an August 2013 rating decision. In September 2018, this matter was last before the Board at which time it was remanded for further development. That development has been completed. In September 2018, the Board also remanded a claim of entitlement to service connection for dermatophytosis, claimed as mycotic infection with toenail removal and ingrown toenail status-post removal of entire toenail. Following the Board’s remand, the agency of original jurisdiction (AOJ) granted service connection for this disability in a May 2020 rating decision. Accordingly, this disability is not at issue in the present appeal. 1. Entitlement to service connection for a bilateral foot disability to include, bilateral pes planus, compensated forefoot/rearfoot varus, osseous hypertrophy talus and calcaneus and tendonitis and tendonitis. The Veteran asserts that current bilateral pes planus is related to service. He particularly alleges that his pes planus was aggravated in service. The record also reflects indications of other foot assessments, and the Board will also address those in its decision. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of a current disability, an in-service incurrence or aggravation of an injury or disease, and a nexus between the claimed in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). With regard to pes planus specifically, the Board finds the condition preexisted service and did not undergo any in-service increase in severity. With regard to any other foot condition the Veteran has been diagnosed with during the appellate time frame, the Board finds the preponderance of the evidence does not support in-service incurrence or any other nexus to service. Therefore, the claim must be denied. The Veteran’s January 1989 entrance examination shows that he entered service with asymptomatic bilateral pes planus as such is noted on the examination report. Thus, the presumption of soundness does not apply as to this foot condition, and direct service connection is precluded specifically for pes planus. That is, 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. 38 U.S.C. § 1111. In this case, because the Veteran’s bilateral pes planus was noted on his January 1989 entrance examination, the presumption of soundness is not for application as to the specific condition of pes planus. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012). In cases where, as here, a preexisting condition is noted upon entry into service, “the Veteran cannot bring a claim for service connection…but the Veteran may bring a claim for service-connected aggravation of the disorder.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2005). The burden falls on the Veteran to show an increase in severity in service. 38 U.S.C. § 1152; Wagner, 370 F.3d at 1096; see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). If the Veteran satisfies this burden, the preexisting condition will be presumed to have been aggravated by service and the burden shifts back to the government to rebut the presumption of aggravation by clear and unmistakable evidence that the demonstrated increase in disability was the result of the natural progress of the condition. Id. Thus, 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 clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. See 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. See id. Again, the Veteran’s service treatment records document asymptomatic bilateral pes planus on the January 1989 entrance examination. A December 1989 service treatment record notes a complaint of a sore 5th digit of the left foot after the Veteran fell from a rack. There was pain to palpation of the 5th digit and toenail area with some local inflammation. Rule out ingrown toenail was assessed, and the Veteran was advised to keep the area warm and dry. Otherwise, no service records document any complaints, treatment, or ancillary reports regarding the feet, and his separation examination shows the Veteran denied trouble with his feet and the examination of the feet was normal. In short, there is nothing within the service treatment records that suggests an in-service worsening of pes planus or in-service incurrence of any other foot condition. A private medical record dated in December 2010, documents that the Veteran presented for treatment of bilateral foot pain. The Veteran related that the condition was first noted “several years ago.” An impression of “compensated forefoot/rearfoot varus bilateral” was assessed, in addition to mycotic (fungal) infected nail, osseous hypertrophy talus and calcaneus left and right foot and tendonitis. The left 5th toenail was removed secondary to the mycotic infection. No nexus opinion was provided. In a May 2012 statement, the Veteran explained that he had not had any problems with his feet until he entered service. He stated that he was unaware that he had pes planus until it was shown on his entrance examination. He explained that he sought treatment in 1999 for flat feet (approximately 6 years after service), but the records of that treatment had been destroyed. In August 2015, VA obtained a medical opinion to address the matter of whether pes planus clearly and unmistakably pre-existed service and was clearly and unmistakably not aggravated therein. Examination resulted in an assessment of bilateral pes planus, that the examiner concluded clearly and unmistakably pre-existed service. The examiner, however, offered contradictory statements. On one hand, he indicated that the bilateral pes planus was not aggravated in service and did not worsen beyond natural progression therein, but on the other hand “checked” the box that indicated that bilateral pes planus was clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event or illness. Accordingly, in September 2018, the Board remanded the matter for clarification. In July 2019, VA obtained a clarifying medical opinion, with the examiner stating that the Veteran’s pes planus clearly and unmistakably pre-existed service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. The examiner explained that the Veteran was noted to have asymptomatic pes planus at entrance in 1989, and that the service records documented no complaints regarding the feet. The examiner noted also that the first mention of any foot-related pain appears in 2010, when the Veteran sought treatment at a podiatrist. The examiner indicated that given this timeframe, if aggravation had occurred, one would expect to see foot-related symptoms prior to 17 years following the Veteran’s discharge in 1993. In weighing the evidence, the Board finds that the medical evidence of record, and the lack of competent support for the Veteran’s theory, preponderates against the claim. The July 2019 VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the Veteran has not satisfied his burden of proof of showing an in-service increase in severity of his pre-existing bilateral pes planus, and indeed the most persuasive evidence of record shows his pes planus was clearly and unmistakably not aggravated in service. Further, the Board has considered whether the Veteran has any other foot condition that could be directly related to service. See 38 C.F.R. §§ 3.303, 3.304. (Continued on the next page)   The Veteran’s 1989 entrance examination only noted preexisting pes planus, and therefore, the presumption of soundness would apply as to any other foot-related condition. Private treatment records from 2010, as outlined above, indicated impressions of “compensated forefoot/rearfoot varus bilateral,” osseous hypertrophy talus and calcaneus and tendonitis, in addition to the mycotic nail. Service connection has already been established for the mycotic infected nail. With regard to the other foot conditions, the treating provider did not relate any of the assessed foot conditions to any incident of service. Again, the Veteran’s service treatment records do not show any complaints, treatment, or diagnoses for any foot condition during the duration of his active duty, other than the suspected ingrown toenail. Rather, pes planus was noted on his 1989 entrance examination, but the records are otherwise silent. Indeed, the Veteran denied any foot trouble on the separation examination. After service, the Veteran has contended he sought treatment in 1999 (6 years after service), but the first medical evidence of treatment is decades after service. In any case, there is no medical opinion of record indicating that any foot condition is related to any incident of service. While the VA examiners in this case did not specifically address other foot conditions, the Board finds further VA examination is not warranted where, as here, there is no indication that the Veteran’s condition(s) may be associated with any incident of service. McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). Therefore, service connection for any other foot condition on a direct basis is also not warranted. While the Veteran believes that his pes planus was aggravated in service, and he is certainly competent to relate his lay observations of pain, etc., he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.