Citation Nr: 21032514 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-48 765 DATE: May 27, 2021 ORDER Entitlement to service connection for a bilateral foot disability, including pes planus, including as secondary to service-connected sarcoidosis, is denied. FINDING OF FACT The Veteran's pes planus was noted on his service entrance examination and did not increase in severity during service, and the weight of the evidence is against finding that the pes planus was aggravated by the service-connected sarcoidosis. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability other than the service-connected bilateral hallux valgus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from June 2009 to November 2009 and on active duty from April 2011 to July 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In November 2018, the Board remanded the issue of service connection for a bilateral foot disability for additional development. The Board notes the issue of service connection for obstructive sleep apnea was also remanded, but service connection was granted on remand, and that matter is no longer before the Board. Entitlement to service connection for a bilateral foot disability. The Veteran is seeking service connection for a bilateral foot disability, including pes planus, as secondary to his service-connected sarcoidosis or as directly related to active duty service. 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 service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310, Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A January 2020 VA examination report shows the Veteran has bilateral pes planus. The Board notes the November 2018 remand also directed the examiner to consider whether the Veteran had plantar fasciitis that was related to service or was caused or aggravated by sarcoidosis. However, the January 2020 examiner concluded that the right foot plantar fasciitis diagnosed during the Veteran's period of active duty for training in 2009 had resolved. She found that the Veteran did not have plantar fasciitis currently, explaining that he did not have the classic picture of that condition. She noted incidental findings of bunions and plantar spurs but attributed those diagnoses to current ill-fitting shoes. The Board notes that the RO granted service connection for left and right foot hallux valgus in a November 2013 rating decision. Based on the foregoing, the Board will focus the analysis in this decision on the diagnosed bilateral pes planus. Accordingly, the remaining question before the Board is whether the current pes planus is etiologically related to the Veteran's military service or the service-connected sarcoidosis. Significantly, the Veteran's January 2011 entrance examination reveals a notation of mild, asymptomatic pes planus. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but 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. 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). 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). Based on a review of the record, the Board finds that the Veteran's preexisting pes planus did not increase in severity during service. The Veteran's service treatment records show he complained of foot pain on multiple occasions during service, but at no point did the Veteran or his treatment providers associate the pain with the preexisting pes planus. For instance, an October 2009 service treatment record notes the Veteran complained of right heel pain. Plantar fasciitis was assessed. A June 2013 service treatment record notes the Veteran complained of pain that had spread to his feet due to the now service-connected sarcoidosis. Notably, the Veteran was provided a VA general examination in March 2013. The examiner noted the bilateral pes planus was asymptomatic and opined it was not aggravated during service. The Board acknowledges the examiner did not provide a rationale, but as found in Verdon, the disorder has not been aggravated by service if it was no more disabling at separation than it was on entrance, if even the condition worsens for a period of service. As the January 2011 and March 2013 examiners found the pes planus was asymptomatic, the Board finds there was no increase in severity of the pes planus during the Veteran's active duty service. Because the evidence does not show that the Veteran's preexisting pes planus worsened in service, the presumption of aggravation does not apply and service connection on a direct basis is not warranted. Service connection for the bilateral pes planus can nonetheless be established on a secondary basis if the evidence shows the service-connected sarcoidosis caused or aggravated the pes planus. To fully address the issue, the Veteran was provided a VA foot examination in January 2020. The examiner diagnosed bilateral pes planus. The Veteran reported his feet began to hurt while he was deployed to Afghanistan and had to walk over rocks. The examiner opined the bilateral pes planus was less likely than not proximately due to or aggravated by the service-connected sarcoidosis. He explained that the Veteran has pulmonary sarcoidosis and that medical literature does not support a relationship between the lungs and feet. As indicated by this rationale, the VA examiner essentially concluded that the relevant medical literature did not support a finding that the service-connected sarcoidosis caused or aggravated the Veteran's bilateral pes planus because they affected different areas of the body. The Board finds the January 2020 VA examiner's opinion is probative, because it is based on examination of the Veteran and review of the record and is supported by an explanation that contains clear conclusions and medical literature. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran's general assertion that his bilateral pes planus is directly related to his service or is secondary to the service-connected sarcoidosis. However, because he is a layperson, he is not competent to opine on the etiology or aggravation of the pes planus, which is a medically complex question. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). The Board has also considered the June 2013 service treatment record that notes the Veteran complained of pain that had spread to his feet due to the sarcoidosis, but there is no indication the pes planus worsened during service or that the sarcoidosis affected the pes planus following service. Furthermore, although the Veteran is competent to describe foot pain, he is not competent to attribute that foot pain to either pes planus or sarcoidosis, as that is a medically complex question. In short, in the absence of competent evidence linking the Veteran's bilateral pes planus to service or his service-connected sarcoidosis, a preponderance of the evidence is against the claim. Accordingly, service connection for a bilateral foot disability, diagnosed as pes planus, must be denied. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William A. Skowronski, 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.