Citation Nr: 21031508 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-30 636 DATE: May 24, 2021 ORDER Entitlement to service connection for pes planus is denied. Entitlement to service connection for a foot disorder other than pes planus and right great toe contusions residuals is denied. FINDINGS OF FACT 1. The Veteran's pes planus, which clearly and unmistakably existed prior to entry of service, was not aggravated beyond its natural progression by the Veteran's service. 2. The Veteran's foot disorders, to include bilateral degenerative arthritis of the feet, bilateral hammer toes, and bilateral calcaneal spurs, are not shown to have been present in service, to manifest within one year after discharge from service, or etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus, are not met. 38 U.S.C. §§ 101 (24), 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 2. The criteria for a foot disorder other than pes planus and right great toe contusions residuals have not been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to November 1997. In May 2019, this appeal was remanded for further development. REFERRAL The Veteran in his notice of disagreement, received in April 2013, raised the issue of problems with his ankles. However, this issue has not been adjudicated. Given such, this issue is REFERRED to the Regional Office for appropriate development. Service Connection Legal Principles and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). If a preexisting disability is noted upon entry into service, a Veteran cannot bring a claim for service connection for that particular disability, but the Veteran may bring a claim for service-connected aggravation of that disability. 38 U.S.C. § 1153 (2012); Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). In such cases, a preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a). Clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). Factual Background Here, the Veteran contends the extensive running, marching, jumping, and climbing caused pain in his feet, knees, and back. See June 2016 VA Form 9. In an August 1990 entrance report of medical examination, it was noted that the Veteran had entered service with "pes planus, minimal." The Veteran's service treatment records reflect on January 18, 1996, he was seen for an injury to his right great toe, after a tank sprocket fell on his toe. Upon examination, bleeding from the lateral aspect of the nail was noted. X-rays revealed no fracture. The Board notes the Veteran is already service connected for residuals of right great toe. The service treatment records are silent for any other problems, symptoms, or diagnoses related to the feet during the Veteran's service. In a July 1998 General examination report, the Veteran's right foot x-ray was normal. In a March 2013 VA examination report, the Veteran reported pain in the foot since 1998. The VA examiner noted a diagnosis of degenerative disease of the feet. While the March 2013 VA examiner appeared to opine that the Veteran's degenerative disease was at least as likely as not related to service, the VA examiner's rationale discussed the Veteran's ankle and other injuries, without discussion of degenerative disease of the foot. Given such, the opinion was not supported by a rationale. As such, this opinion lacks probative value. Subsequently in a December 2014 addendum, the VA examiner opined that the Veteran's pes planus was not aggravated by service because there was not an indication of flat feet upon x-ray. The VA examiner opined that the Veteran does not have degenerative disease of the feet and that his pes planus was not aggravated by service. Another opinion was requested. In a November 2018 VA medical opinion, the VA examiner opined that there is insufficient evidence to substantiate either a diagnosis of pes planus or degenerative disease of the feet. The November 2018 VA examiner noted that a thorough review of the service treatment records reveal no mention of a diagnosis, physical finding, symptoms, or treatment regarding pes planus, other than the entrance examination report of pes planus minimal. The VA examiner questioned the pes planus noted upon entry explaining that "a physical exam finding of minimal pes planus is a subjective finding which can be mimicked by minor eversion (pronation) of the feet." The VA examiner noted that the VA general examination in 1998 noted a normal foot examination and rendered no findings of pes planus. The VA examiner further stated that he does not doubt that the Veteran experiences foot pain. However, the VA examiner notes that the Veteran gained 44 pounds in the seven months following discharge. He weighed 339 pounds at the present examination, which was 129 pounds more than at time of discharge. Given such, the VA examiner opined that the Veteran's foot pain is most likely attributable to his obesity, rather than to training and his active service. In a December 2019 VA examination report for foot conditions, the VA examiner diagnosed the Veteran with bilateral flat foot (pes planus), with onset of 1990; bilateral hammer toes, bilateral degenerative arthritis of the feet, and bilateral plantar calcaneal spurs, with onset of 2019. The VA examiner reviewed the Veteran's medical history and noted the following. The Veteran's enlistment examination noted pes planus, minimal. No symptoms were noted. The Veteran had trauma to the right first toe in January 1996, with a diagnosis of right great toe contusion. No fracture was noted. In January 1997, the Veteran checked off "foot trouble" and it was noted a history of trauma of great toe right foot, no other foot condition was noted. X-rays of the right foot in 1998 were normal. The VA examiner noted that the Veteran reported that he does not recall what specific conditions that were diagnosed related to his feet. He is currently not seeing a podiatrist. He did not have any foot surgery. He reported that he had an injury to his great toe in 1996. He was told he had flat feet at entrance in 1990. He does not recall being treated for foot pain in service other than the 1996 injury. He does not wear inserts or special shoes. He first noticed having foot pain in 2008, with standing and walking. He worked as a correctional officer from 1998 to 2009. He now works at a mental health hospital as a technician. He reported pain in his arches two to three times a week. On July 5, 2019, his BMI was 43.36 with a weight of 328 pounds. The VA examiner opined that while the Veteran's pes planus preexisted service, there was no indication that it increased in severity during service. The VA examiner pointed out that it has been 22 years since his discharge from service. He currently weighs 328 pounds. Pes Planus At the onset, the Board notes that the Veteran's pes planus (minimal) was noted upon entry of service. See August 1990 entrance examination report. In such case, the Veteran can only be awarded service connection based on an aggravation of this disability during his service. A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that by clear and unmistakable evidence the increase in disability is due to the natural progression of the disease. Thus, the issue in this case is whether the Veteran's pre-existing condition was aggravated beyond its natural progression during service. Here, the Board finds that the Veteran's pes planus was not aggravated beyond the natural progression during service. Significantly, the Veteran's service treatment records do not show any indication of increase in his pes planus during service. As discussed above, the Veteran's service treatment records only reflect a 1996 treatment for his right great toe (which the Veteran is already service connected for). In fact, the Veteran recently reported to the December 2019 VA examiner that he does not recall seeking treatment for this foot, other than for his great toe. Thus, even by the Veteran's own assertions, there was no aggravation reported during his service. Given such, the December 2019 VA examiner opined that the Veteran's pes planus, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression during service. Thus, the Board finds that the Veteran's preexisting pes planus was not aggravated beyond its natural progression during service. The Board notes that that the Veteran has reported pain in his feet post-service. Consideration has been given to the Veteran's statements of pain in his feet. However, to the extent that the Veteran has offered his opinion that his pes planus was aggravated beyond its natural progression by his service, this statement appears to pertain to an internal medical process which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses, as is the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran's lay statements have been reviewed and considered. However, the Board finds that all the VA medical evidence and opinion taken together are highly probative as they are based on sufficient facts and data, a product of reliable principles and methods, and applied the principles and methods reliably to the facts of this case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Importantly, the Board notes that the November 2018 VA examiner noted that he does not doubt that the Veteran experiences foot pain. However, the VA examiner noted that the Veteran gained 44 pounds in the seven months following discharge. He weighed 339 pounds at the present examination, which was 129 pounds more than at time of discharge. Given such, the VA examiner opined that the Veteran's foot pain is most likely attributable to his obesity, rather than to training and his active service. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable, and his claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Other Foot Disorders The Board has also considered service connection for a foot disorder, other than service-connected right great toe contusions residuals and pes planus. With respect to the first element of service connection, the Board notes that the record reflects the Veteran has current diagnoses of bilateral degenerative arthritis of the feet, bilateral hammer toes, and bilateral calcaneal spurs. Thus, the first element of service connection is satisfied. With respect to the second and third elements of service connection, the Board finds that the Veteran's service treatment records do not reflect any complaints, diagnoses, or treatment related to bilateral degenerative arthritis of the feet, bilateral hammer toes, and bilateral calcaneal spurs; or that these disabilities are otherwise related to the Veteran's service. Here, as discussed above, the Veteran's service treatment records only reflect a diagnosis of pes planus upon entry and a 1996 injury of the right great toe. Significantly, the Veteran reported to the December 2019 VA examiner that he does not recall seeking treatment for any other foot problems in service, other than for his great toe. Given that there was no evidence of these disabilities during service, the December 2019 VA examiner opined that with respect to the Veteran's degenerative arthritis, calcaneal spurs, and hammer toes, it is less likely than not that these conditions were present during service or otherwise related to the Veteran's service. Therefore, the Board finds that the evidence is against a finding that the Veteran's degenerative arthritis, calcaneal spurs, and hammer toes are related to his service. Also, the evidence does not establish service connection by chronicity. In order to establish service connection by chronicity, the claimant must demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. 38 C.F.R. § 3.303 (b). Here, there is no evidence of a degenerative arthritis, calcaneal spurs, and hammer toes during service. Thus, there is no evidence to establish the existence of a chronic disease during service. Consequently, without evidence of a chronic disease during service, service connection by chronicity cannot be established. Furthermore, the Veteran contends that he experienced foot pain subsequent to his service due to the activities he performed during his service (running, squatting, jumping, and climbing). To the extent the Veteran contends that he is entitled to service connection based on continuity of symptomology, the evidence does not establish service connection by continuity of symptomology. Continuity of symptomatology is established if a claimant demonstrates: (1) a condition noted during service; (2) evidence of post service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptoms. Here, as explained above degenerative arthritis, calcaneal spurs, and hammer toes were not noted during service. The only foot disabilities noted during service were related to his right great toe and pes planus. Thus, the evidence does not reflect a continuity of symptomology. Lastly, although arthritis is one of the listed chronic diseases. since the Veteran did not have a diagnosis of degenerative arthritis within one year of his separation of service, he cannot establish service connection on a presumptive basis for a chronic disease. As here the Veteran was first diagnosed with degenerative arthritis of the feet in the March 2013 VA examination report, it cannot be established that arthritis was shown to be manifest to a degree of 10 percent or more within one year following a Veteran's separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.307, 3.309. Given such, the Veteran cannot establish that his degenerative arthritis, calcaneal spurs, and hammer toes were related to his service. Consequently, the second and third elements of service connection cannot be established. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable, and his claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D .Abdelbary, 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.