Citation Nr: 21027546 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 19-26 656 DATE: May 6, 2021 ORDER Entitlement to service connection for a bilateral foot disability, to include pes planus, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his bilateral foot disability, to include pes planus, began during active service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability, to include pes planus, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1978 to March 1979, and from May 2000 to October 2000. During his periods of service, he earned the National Defense Service Medal, Armed Forces Expeditionary Medal, Armed Forces Reserve Medal with M Device, Army Service Ribbon, and Army Reserve Components Overseas Training Ribbon. The issues of entitlement service connection for a bilateral foot disability, to include pes planus, and diabetes mellitus, as well as entitlement to increased ratings for right and left knee traumatic arthritis and TDIU were previously before the Board in April 2020. In that decision, the Board denied entitlement to service connection for a bilateral foot disability, as well as increased ratings for right and left knee traumatic arthritis. The April 2020 Board decision also remanded the issues of entitlement to service connection for diabetes mellitus and TDIU for further development. In a January 2021 Joint Motion for Partial Remand (Joint Motion), the United States Court of Appeals for Veterans Claims (Court) indicated that the Board erred when it did not adequately consider Veteran's lay statements in denying the claim. The parties agreed that the Board's decision finding that Veteran was not entitled to service connection for a bilateral foot disability, to include pes planus, should be vacated and the matter should be remanded to the Board for actions consistent with the Joint Motion. The Joint Motion noted that the Veteran was no longer appealing the Board's denial of his claims of entitlement to increased ratings for right and left knee traumatic arthritis. As such, these claims were not encompassed by the Joint Motion and are not for consideration before the Board. Lastly, the Joint Motion noted that the Court lacked jurisdiction over the issues of entitlement to service connection for diabetes mellitus and TDIU, as those issues are still in development. The Board notes that these issues will be addressed in a separate decision after all development has been completed as directed by the April 2020 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a bilateral foot disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With respect to the first element of service connection, a current diagnosis, VA treatment records note a diagnosis for pes planus. Thus, the current disability criterion for service connection is met. See Shedden, supra. Next, the Board must consider whether the Veteran sustained a disease or injury in service. The Veteran's service treatment records are silent for complaints, treatment, or diagnosis related to a bilateral foot disability. However, in a private opinion associated with the claims file in April 2018, the Veteran's private physician stated that the Veteran reported complaining about bilateral foot pain during training in the summer of 2000 however, his complaints went ignored. The physician also noted that the Veteran reported being told that he had "flat feet" during a physical while serving in the Reserves. The Veteran is competent to report on his observable symptomatology, such as foot pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). In this regard, the Board resolves all doubt in the Veteran's favor, finding his reports to be competent evidence of an in-service incurrence. Therefore, the second element of service-connection is met. See Shedden, supra. As indicated above, a private medical opinion was associated with the Veteran's claims file in April 2018. Dr. E.P. explained that the Veteran did not have pes planus when he entered service, thus neither of his entrance examinations document the deformity. However, the Veteran suffers from an adult-acquired flat foot deformity as a result of ligament and tendon insufficiency in the foot as a result of repetitive wear and tear. The physician further explained that the Veteran's reports of pain were consistent with the development of pes planus due to progressive failure of the normal physiologic structure of the foot as a result of repetitive insult. Accordingly, the physician opine that it was at least as likely as not that the Veteran developed his bilateral foot condition as a result of his military service. In light of the positive nexus opinion and lack of contradictory evidence, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the bilateral foot disability, to include pes planus, is related to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for a bilateral foot disability, to include pes planus, is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.