Citation Nr: 21040358 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-41 018A DATE: July 3, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. FINDING OF FACT The Veteran's bilateral pes planus existed prior to service and was clearly and unmistakably not aggravated by service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303; 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the United States Army from June 1975 to June 1978. This matter appears before the Board of Veterans' Appeals (Board) on appeal of a July 2011 rating decision of the Regional Office (RO) in Baltimore, Maryland. In May 2017, the Veteran testified before the undersigned Veterans Law Judge during a central office hearing in Washington, DC; a transcript is of record. Most recently, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) in December 2020. The Board directed the AOJ to obtain a new VA examination regarding whether the Veteran's pre-existing condition was worsened in service. VA requested the examination in December 2020, and it was completed and associated with the claim in January 2021. The Board finds substantial compliance with its December 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2021, the Veteran's attorney requested 90 days in which to submit additional evidence. As this time period has elapsed, the Board will proceed with this appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for bilateral pes planus The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to service connection for bilateral pes planus. The Veteran contends that his bilateral pes planus, which preexisted service, was aggravated during service. The evidence shows instead that the Veteran's pes planus was not aggravated by active service. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such 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 and 38 C.F.R. § 3.306 (a). A permanent increase in severity is required to establish "aggravation" of a preexisting disability for the purposes of the presumption of aggravation under 38 U.S.C. § 1153. Aggravation may 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 (b). A veteran is presumed to have entered service in sound condition with respect to his or her health except as to defects, infirmities, or disorders "noted" on service entrance. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The Veteran's service treatment records are associated with the file, and, on a June 1975 entrance examination, it was noted the Veteran had bilateral pes planus second degree asymptomatic. Consequently, the Board finds that the Veteran's bilateral pes planus preexisted service because it was noted upon entrance to service. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (citing 38 U.S.C. § 1153). The question for the Board is whether there is clear and unmistakable evidence that the Veteran's bilateral pes planus was aggravated (permanently worsened) during service. In Wagner v. Principi, 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). The Veteran's service treatment records do not contain any evidence of aggravation. Specifically, following the Veteran's entrance examination, there is no treatment or complaints of pes planus. Further, the Veteran's separation examination notes pes planus but there is no indication it has been aggravated. The Veteran's service treatment records also include reports of medical history completed by the Veteran. On his June 1975 report of medical history, the Veteran reported no foot troubles. On his April 1978 report of medical history, the Veteran reported no foot troubles. The Veteran reported symptoms associated with pes planus in July 2012. At the time, the Veteran reported he had long-standing pain in his bilateral feet. VA treatment records from October 2008 show the Veteran sought treatment for right ankle pain. The Veteran's flatfoot deformity was noted, and he was treated with custom shoe inserts. There is no indication that the Veteran reported any symptomatology regarding his pes planus because the treatment notes only reference his right ankle pain. The Veteran submitted two private medical reports both from Dr. A.C.. One dated June 2019 outlines the Veteran's treatment in his office, and he opined that the Veteran's current severity could have been eliminated if he had proper conservative treatment in service. The second is dated July 2020, and it again outlines the treatment offered to the Veteran. Dr. A.C. opined that the absence of proper custom orthic support treatment in service increased the probability of permanent pain and disability. VA afforded the Veteran two VA examinations. The Board previously found that the August 2014 examination and accompanying opinion were inadequate. The Board also found that a June 2019 addendum opinion was inadequate. Accordingly, the Veteran underwent VA examination again in January 2021. The January 2021 examiner found no evidence of aggravation in service. Specifically, the examiner noted that the Veteran's reported pain with pes planus came several year after separating from service and after the Veteran gained weight. The examiner noted that an increase in weight can worsened pes planus. (Continued on the next page) As the most competent and credible evidence of record does not show an increase in the severity of pes planus during service the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran's pre-existing pes planus was not aggravated by military service entitlement to service connection must be denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. N. Fournier, 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.