Citation Nr: 21032276 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-06 672 DATE: May 26, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. FINDING OF FACT The Veteran's bilateral pes planus was clearly and unmistakably not aggravated beyond its natural progression during service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded this issue in September 2018 for further development. In September 2019, the Board denied service connection for a bilateral foot disability, to include pes planus. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (the Court). In his appellate brief, the Veteran specifically appealed "service connection for bilateral pes planus." See CAVC Docket Entries at 2. Pursuant to an August 2020 Memorandum Decision, the Court vacated the September 2019 Board decision denying service connection for bilateral pes planus and remanded the claim for readjudication based on a proper application of the law. Because the Court's Order vacated and remanded the Veteran's claim for service connection for bilateral pes planus only on a direct service connection basis, the Veteran's claim for foot disabilities identified during the period on appeal are considered abandoned. Entitlement to service connection for bilateral pes planus is denied. The Veteran contends service connection is warranted for bilateral pes planus because his preexisting congenital pes planus has been aggravated by service. The Board and VA can award compensation if a preexisting condition was permanently worsened by service. Following a review of the evidence, the Board finds service connection for pes planus must be denied. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or diseases existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111, 1137; VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during 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. Aggravation of a pre-existing injury or disease will 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. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Notably, it is the veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the pre-existing disability increased in severity during service for the presumption of aggravation to attach. See Verdon v. Brown, 8 Vet. App. 529, 538 (1996) (stating that the question of whether a preexisting defect or injury underwent an increase in severity must be answered in the affirmative before the presumption of aggravation attaches). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence. See Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); 38 C.F.R. § 3.306 (b).Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Due regard must be given to combat duty and the development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy as this will establish aggravation of a disability. 38 C.F.R. § 3.306(b)(2). The Veteran's entrance examination report dated February 24, 1990 show the Veteran presented with moderate pes planus. Thus, as bilateral pes planus was noted upon entry to service, the presumption of soundness does not apply. The only issue is whether this preexisting disorder was aggravated by service. The Veteran thereby bears the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. A May 1991 Physical Evaluation Board (PEB) report found that the Veteran's bilateral pes planus existed prior to entry and precluded him from receiving disability benefits under 10 U.S.C. Chapter 61. The Veteran did not object to the findings of the PEB report. Private medical records indicate the Veteran's pes planus began worsening in 2003. He denied experiencing or problems with his feet from 1991 to 2003. In November 2006 the Veteran reported he experienced painful feet for years. He denied any trauma, however. In March 2014, the Veteran reported his bilateral heel pain has been present for approximately 15 years. VA imaging tests dated December 2017 show the Veteran's feet underwent mild degenerative changes, bilaterally. The Veteran submitted a letter by Dr. G.L.H., M.D. who stated that the Veteran suffers from severe plantar fasciitis and calcaneal spurs in both feet. See March 2014 letter by Dr. G.L.H. Dr. G.L.H. opined that it was "a definite possibility that the physical training that [the Veteran] endured during his military service could have aggravated his pes planus condition and contributed to his current condition." Id. Statements that are inconclusive as to the origin of a disorder generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). However, by the same token, these types of opinions also cannot be used to rule out this purported correlation, either. Ultimately, noncommittal opinions like this amount to nonevidence, neither for nor against the claim, because service connection may not be based on speculation or remote possibility. The Veteran submitted a statement by Dr. M.S.H., M.D. who stated that "it is as likely as not that the physical training [the Veteran] endured while in the service aggravated his foot deformity and symptoms." See April 2014 letter by Dr. M.S.H. This opinion is inadequate as it is conclusory and not supported by sufficient rationale. Moreover, Dr. M.S.H. did not opine whether the Veteran's service clearly and unmistakably aggravated his preexisting disability beyond natural progression. The Veteran underwent a December 2015 VA examination. The examiner did not provide a medical opinion as to whether preexisting pes planus was aggravated by service. Moreover, the examiner did not comment on the provided medical statements provided by the Veteran. The Board assigns this opinion very little probative weight as it is inadequate for adjudicative purposes. A July 2019 VA examiner conducted an in-person examination, reviewed the Veteran's claims file, medical evidence, and subjective complaint. The examiner opined bilateral pes planus which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner explained that pes planus, also known as "flat foot," may be acquired or congenital. With pes planus, the patient initially complains of pain and swelling in the medial ankle and midfoot during weight bearing. Loss of push-off strength during gait occurs, and the patient may develop a limp. As the patient's heel displaces into valgus and the forefoot abducts, pressure between the calcaneus and fibula may develop, causing painful impingement between the lateral ankle and calcaneus. Abnormal wear of the medial heel and inner border of shoe wear may also be noted. Contraction of the posterior tibial tendon causes inversion of the midfoot and elevation of the medial longitudinal arch through its broad insertion on the navicular, cuneiforms, medial 3 metatarsal bases, and cuboid. Loss of posterior tibial function due to stretching or rupture of the tendon removes the primary inverter of the foot and leaves the primary and secondary everters of the foot, the peroneus brevis and longus, relatively unopposed. Therefore, posterior tibial dysfunction leads to flattening of the medial longitudinal arch, forefoot abduction, and hindfoot valgus. Pes cavus is a high arch of the foot that does not flatten with weight bearing. The deformity can be located in the forefoot, the midfoot, the hindfoot, or a combination of these sites. The spectrum of associated deformities observed with pes cavus includes clawing of the toes, posterior hindfoot deformity (described as an increased calcaneal angle), contracture of the plantar fascia, and cock-up deformity of the great toe. The examiner noted that plantar fasciitis and tibialis posterior tendinitis are frequently seen with pes planus. She stated the Veteran's service treatment records do not support frequent visits for pain in his feet while in service or shortly after leaving service. Rather, the Veteran's bilateral pes planus has progressed over time to be symptomatic. This is a natural progression of his condition due to aging and weight gain. She considered the April 2014 letter by Dr. M.S.H. and stated that it does not note review of the Veteran's service treatment records, does not address that the pes planus was present prior to military service, and does not state that pes planus was aggravated beyond its natural progression. The Board finds the July 2019 VA examiner's report is highly probative, sufficiently rationalized, and is based on a thorough review of the record and medical literature. Conversely, the March and April 2014 letters are inadequate for adjudicative purposes. The March 2014 provider provided an inconclusive statement which the Board may not use in support of or against the Veteran's claim. Moreover, the April 2014 letter used the incorrect standard and failed to address whether the Veteran's period of active service clearly and unmistakably aggravated his preexisting bilateral foot disability. As such, no probative weight is given to the March and April 2014 letters. As noted previously, the passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection. See Mense, 1 Vet. App. at 356. To the extent that the Veteran has indicated a worsening of his disorder during service, he is competent to testify as to his observations, but the question of whether this particular disorder worsened, is a complex medical question of the type the courts have found as to which lay testimony is not competent. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (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 ). Based on the foregoing, given that the evidence clearly and unmistakably demonstrates that the Veteran's pes planus was not aggravated by his active service, service connection is not warranted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.