Citation Nr: 21029001 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-14 321 DATE: May 12, 2021 ORDER Service connection for a psychiatric disorder, to include major depressive disorder and unspecified anxiety disorder, is granted. Service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's psychiatric disorder, to include major depressive disorder and unspecified anxiety disorder is etiologically related to his active military service. 2. The evidence shows that the Veteran's bilateral pes planus clearly and unmistakably existed prior to his entrance into service and was clearly and unmistakably not aggravated beyond its natural progression during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, to include major depressive disorder and unspecified anxiety disorder, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for a bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 1111, 1132, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from August 1989 to August 1993. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Psychiatric Disorder The Veteran is seeking service connection for a psychiatric disorder, to include PTSD, major depressive disorder (MDD) and an unspecified anxiety disorder, which he asserts resulted from his military service. At his February 2021 Board hearing, the Veteran reported experiencing nightmares and anxiety during service because he was fearful of being deployed to a war zone, and he also claimed that his current psychiatric disorder was related to the pain caused by his service connected left ankle condition. Veteran was afforded a VA examination in April 2014, at which he was diagnosed with major depressive disorder (MDD) and unspecified anxiety disorder. The examiner opined that that Veteran's mental disorders were not likely caused by the sleep impairments noted on his report of medical history at the time of his separation, but indicated that "in-service experiences may have exacerbated the diagnosed conditions at the time." In December 2014, the Veteran was provided another VA examination, at which he was diagnosed with MDD and unspecified anxiety disorder. The examiner indicated that the Veteran's psychiatric disorder did not meet the diagnostic criteria for PTSD under the DSM-5. An additional VA opinion was obtained in February 2015 to address the possibility of a relationship between Veteran's psychiatric disorder and his service-connected left ankle condition. The examiner opined that while Veteran's ankle condition could cause some mental health distress, the Veteran's childhood experiences and current life stresses appeared to be the major issues associated with his current mental health diagnoses. Two private medical opinions were provided in this case. Dr. Wheeler, in October 2014, opined that the Veteran's MDD with mixed anxiety disorder resulted from his service-connected experiences and were triggered by the experiences he had during basic training. Dr. Stoudimire, in January 2021, opined that the Veteran's MDD and generalized anxiety disorder were triggered by his military combat training. Here, the Board is presented with conflicting medical opinions on whether the Veteran's psychiatric disorder is etiologically related to his service. Each opinion was provided by a medical professional who is presumed to be competent to provide the opinion. Given the approximate balance of positive and negative evidence in support of Veteran's service connection claim, the Board finds that the benefit of the doubt should be resolved in favor of the Veteran. Accordingly, service connection for a psychiatric disorder, to include major depressive disorder and unspecified anxiety disorder is granted. Bilateral pes planus The Veteran is seeking service connection for bilateral pes planus (flat feet) that he believes was aggravated by his military service. The Veteran's representative argues in a brief dated February 2021 that while the Veteran's pes planus was noted on his entrance examination, it was aggravated by military service due to wearing military boots and participating in drills. A veteran who serves on active duty during war time or served for six months or more during peace time shall be presumed in sound condition at the time of enlistment, absent evidence of a pre-existing condition noted on the enlistment physical, or clear and unmistakable evidence demonstrating otherwise (presumption of soundness). 38 U.S.C. §§ 1111, 1132. 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); 38 U.S.C. §§ 1111, 1132 (presumption of sound condition). If a condition is noted, the presumption of soundness does not apply, and a veteran may only bring a claim of aggravation of the disorder. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In such a case, any increase of a pre-existing injury or disease will be presumed to have been aggravated by active service, unless there is a specific finding 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. However, the veteran has the burden of establishing aggravation, by showing that there was an increase in the disability during service. Horn v. Shinseki, 25 Vet. App. 231, 235 n. 6 (2012); 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Once the Veteran or the evidence of record show that there was an increase in disability during service, presumption of aggravation is triggered, Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), the burden then shifts to the government to show by clear and unmissable evidence that any increase was due to the natural progress of the condition. Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003). However, any increase in severity must also be permanent. Recurrence or temporary flare-ups of symptoms do not constitute an increase in severity. Davis v. Principi, 273 F.3d 1341, 1345 (Fed. Cir. 2002). Here, service treatment records (STRs) show and Veteran admits that his bilateral pes planus was noted on his enlistment physical, where he was found to have mild pes planus; as such, presumption of soundness does not apply. The Veteran asserts that his flat foot condition worsened during service by running in military boots and completing drills. As such, the Veteran's comments must be assessed to determine whether they show a worsening (aggravation) of the pes planus during the Veteran's service. The Veteran testified at his February 2021 Board hearing that he was given a profile on several occasions during service due to his pes planus. He suggested that the profile allowed him to wear tennis shoes for training, rather than combat boots. However, neither the service treatment records, nor service personnel records show any profiles for pes planus specifically. STRs show that mild pes planus was noted on his entrance physical. STRs also show that the Veteran received treatment for a puncture wound in his left foot in July 1991 and that he was put on profile for the puncture wound and a related infection. Treatment notes in August 1991 showed that his puncture wound was resolving. Treatment notes in September 1991 document a left foot injury due to a safe dropping on it. X-rays at that time showed no fracture, and physical examination showed no swelling and good range of motion. He was ordered not to participate in physical training for three days. The Veteran's separation physical indicated normal foot condition and did not note any pes planus. The Veteran denied any foot trouble on his report of medical history in conjunction with the separation physical while reporting other medical conditions, such as shortness of breath and trouble sleeping. Additionally, while the Veteran testified that his feet worsened dramatically in service, such that he could not even pass a PT test, the evidence of record suggests otherwise. Of note, service treatment records while not specifically discussing pes planus, do show that the Veteran remained active during service, as he presented for treatment of basketball injuries on multiple occasions in 1993, and a football injury earlier. Of note, the basketball injuries occurred after the Veteran was stationed in Germany, when he reported having the profiles for his pes planus. As such, the Veteran was found to have mild pes planus at enlistment and no pes planus was noted at separation physical. On its face, this suggests that there was no worsening of the pes planus during service. Thus, the only evidence of record suggesting aggravation of pes planus during service is the Veteran's testimony and other statements. As an initial point, a Veteran is considered competent to report symptoms that are capable of detection with any of his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, he would be competent to describe is feet hurting (although he would not have the medical training or expertise to diagnose pes planus specifically). However, competency is only the first step. Assuming a Veteran is competent to report a matter, the next question that must be asked is whether the testimony is credible. Here, the Veteran contends that his pes planus became so bad during service that he was placed on physical profiles, restricting his activity. However, while the personnel records contain copies of profiles that were assigned for other injuries, there is no record of any profile being assigned for pes planus. This on its face is not dispositive, as it is possible for records to go missing. However, when the Veteran was questioned as to the specifics of his pes planus in service during the course of his hearing, he consistently reported that he did not remember when the problems actually occurred. For example, he did not remember being found to have pes planus at his enlistment physical, and he did not recall whether combat boots bothered him during basic training. Again, the Board is sympathetic to the challenges in recalling precise details of events which allegedly occurred nearly three decades earlier, but the fact remains that the Board is being asked to accept this testimony as proof of an occurrence for which there has been no corroborating evidence presented. To this end, there is no copy of any profile for pes planus during service. There is evidence that the Veteran was playing both football and basketball, based on injuries incurred, despite the Veteran's assertion that he could not even pass a PT test. The Veteran's separation physical did not find any evidence of pes planus, and the Veteran did not report any foot problems, despite reporting other health problems. Following service, the Veteran filed a claim seeking service connection for a number of orthopedic problems including his back, but did not seek service connection for pes planus. Finally, there is no record of any treatment for pes planus for a number of years after service. The Veteran was also afforded a VA examination in January 2015 at which he was diagnosed with pes planus. However, the examiner opined that the Veteran's pre-existing pes planus was not aggravated by military service. The examiner based his opinion on the fact that Veteran did not report problems with his flat feet in his four years of military service and that he was treated on only two occasions in service for foot injuries, including a puncture wound and an injury after dropping a safe on his foot. Examiner also relied on the fact that the separation physical showed normal foot condition. Additionally, the examiner noted that there was no post-service treatment record of foot conditions from 1993 to 2014. Given all of these factors, the Board simply does not find the Veteran's testimony sufficiently credible to establish that his pes planus, which clearly existed prior to service and was noted at enlistment, was aggravated during service. Given this conclusion, the Board finds that the criteria for service connection have not been met, and the Veteran's claim for service connection for pes planus is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.