Citation Nr: 21023914 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 10-39 200 DATE: April 21, 2021 ORDER Entitlement to service connection for bilateral flat foot is denied. FINDING OF FACT The Veteran’s pes planus preexisted active duty service, and the preponderance of the evidence is against a finding that his bilateral pes planus was aggravated by service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral flat foot have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1963 to April 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a statement submitted in April 2014, the Veteran clarified that he did not wish to have a hearing before a Veterans Law Judge (VLJ). In a January 2015 decision, the Board reopened the issue of entitlement to service connection for a bilateral foot disorder, including flat feet, and remanded for additional evidentiary development. In a September 2015 decision, the Board denied service connection for a bilateral foot disorder, to include flat feet. The Veteran appealed to the US Court of Appeals for Veterans Claims (CAVC) and the parties agreed to a Joint Motion for Partial Remand (JMR). CAVC granted the JMR in an August 2016 Order. In a subsequent February 2017 decision, the Board denied service connection for a bilateral foot disorder, to include flat feet. The Veteran appealed and in a November 2018 decision, CAVC vacated and remanded the issue. In June 2019 and September 2020, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). Entitlement to service connection for bilateral flat feet The Veteran seeks service connection for bilateral flat foot (pes planus). The Veteran asserts that his bilateral pes planus, which preexisted service, was aggravated by service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (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). 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, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. If a preexisting disorder is noted upon entry into service, the Veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish an increase in disability during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (2004). If the presumption of aggravation attaches, the burden shifts to the government to show by 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. Id; see also 38 C.F.R. § 3.306(b). 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 the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted with symptoms, has worsened. Davis v. Principi, 276 F 3d 1341 (Fed Cir 2002). Here, service treatment records reveal that the Veteran had second degree pes planus at the time of his November 1961 pre-induction examination and December 1962 induction examination. As such, the Board finds that the presumption of soundness does not apply as the Veteran’s pes planus preexisted service. Service treatment records do not document any treatment related to the Veteran’s feet during service. Thereafter, the Veteran reported foot trouble on his January 1965 separation report of medical history, but the corresponding separation examination indicated that his feet were evaluated as normal. During a March 2015 VA examination, the examiner indicated that the Veteran’s pes planus was currently very mild and there was no documentation of increased foot related symptoms while in service. During a February 2018 VA ankle conditions examination, the examiner noted that the Veteran had foot problems, but found no evidence that it was a problem or was aggravated during service. Additionally, the Veteran reported that he never missed any service duty time or civilian work because of a foot condition and he has worked a lifetime at various manual labor jobs without difficulty or interference from any foot condition. The Veteran underwent a VA examination in December 2019, during which the examiner explained that there is a lack of medical records and documented treatments for the Veteran’s condition from the time of separation to 2010. As such, the examiner opined that there is clear and unmistakable evidence that the Veteran’s bilateral pes planus was not aggravated by service. However, in September 2020, the Board found this opinion inadequate because the examiner failed to address the Veteran’s reports of in-service symptoms of bilateral foot pain. In January 2021, a VA examiner opined that the Veteran’s bilateral pes planus was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner acknowledged the Veteran’s report of bilateral foot pain during service; however, the examiner explained that there is no documentation in the available medical records that indicate that there were any changes in treatment for the Veteran’s pre-existing bilateral pes planus during service or that the natural progression of his condition was worsened, aggravated, or altered by his service. The Board notes that the Veteran is competent to report his symptoms; however, the Veteran’s reports are contradicted by the contemporaneous service treatment records, which do not show an increase of foot pain or treatment. As service treatment records fail to document any increase in foot symptoms over the course of active duty, with second degree pes planus noted at entry and a normal bilateral foot examination at separation, worsening is not shown, and the presumption of aggravation does not attach. Wagner, 370 F.3d at 1096. Because the Veteran’s pre-existing pes planus was not aggravated by military service, entitlement to service connection must be denied. While the Veteran believes that his bilateral pes planus that was aggravated by service, there is no indication that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of pes planus are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of any pes planus is not competent medical evidence. In sum, the most probative evidence indicates that the Veteran’s preexisting bilateral pes planus was not aggravated by service. In this regard, the January 2021 examiner reviewed the record in its entirety, including the Veteran’s in-service reports of bilateral foot pain, and concluded that there was no evidence that his bilateral pes planus was worsened, aggravated, or that service altered the natural progression of his disability. In reaching the above conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, the Board finds that service connection for bilateral flat foot is not warranted. S. Merrick Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, Associate 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.