Citation Nr: 21040833 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-30 754 DATE: July 7, 2021 ORDER Entitlement to service connection for a right foot disability is denied. FINDINGS OF FACT The Veteran's right foot disability is due to a congenital defect that was not subjected to a superimposed disease or injury during active military service, or in the alternative, manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury, or disease.. CONCLUSION OF LAW The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306, 4.9 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1974 to June 1974, and again from May 1977 to August 1977, with subsequent National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a travel board hearing with the undersigned Veterans Law Judge (VLJ) in November 2018. A copy of the hearing transcript is of record. The Board remanded the issue on appeal for additional development in July 2019. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes the Veteran has previously sought service connection for a bilateral pes planus condition, which was denied in December 1974, not appealed, and thus became final. The Veteran filed a claim to reopen the pes planus claim in July 2009 but was denied reopening by the RO in October 2009 for a lack of new and material evidence. The Veteran filed a new claim for a right foot condition in June 2012, which is the basis for this appeal. New claims that are based on distinctly and differently diagnosed diseases or injuries than a previously denied claim must be considered independently, despite similar symptoms. Therefore, new and material evidence is not required in such cases. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding sensorineural hearing loss was distinct from conductive hearing loss). The Board notes from the medical record that the Veteran's right foot claim is distinct from his pes planus, despite some similar symptomatology, and thus considers this claim for a right foot disability to be distinct from the Veteran's previously denied pes planus claim. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection Legal Criteria for Service Connection 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, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for arthritis can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). When no preexisting condition is noted upon entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase was due to the natural progress of the preexisting condition. Id. at 1096. A claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. However, if the pre-existing condition is deemed a congenital defect, vice a disease, then the presumption of soundness would not apply. A defect being a condition that is "more or less stationary in nature," a disease being a condition that is "capable of improving or deteriorating." VA VAOPGCPREC 82-90 (July 18, 1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985)). The distinction between the defect and disease matters in terms of the application of the presumption of soundness. See 38 U.S.C. § 1111. This is because VA regulations state that congenital defects "are not diseases or injuries within the meaning of applicable legislation." 38 C.F.R. § 3.303(c). If a Veteran's condition is not noted at entrance, the presumption of soundness would attach if the Veteran's condition is a disease, but not if it is a defect. See Winn v. Brown, 8 Vet. App. 510, 516 (1996). Thus, if the condition is a defect, VA cannot grant service connection for a congenital defect unless such a defect was subject to a superimposed disease or injury during service. VA VAOPGCPREC 82-90 (July 18, 1990). Whereas, if the condition is a disease, the burden-shifting framework of the presumption of soundness must be applied and the operative question becomes whether there is clear and unmistakable evidence that the Veteran's condition was not aggravated during active service. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). For purposes of determining whether a disorder is a defect or a disease, VA interprets the term 'disease' in 38 U.S.C. §§ 1110, 1131, and the term 'defect' in 38 C.F.R. § 3.303(c) as being mutually exclusive. 'Disease' is broadly defined as any deviation from, or interruption of, the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. See VAOPGCPREC 82-90 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 385 (26th Ed. 1974)). On the other hand, the term 'defect,' viewed in the context of 38 C.F.R. § 3.303(c), is defined as a structural or inherent abnormality or condition that is more or less stationary in nature. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between 'disease' and 'defect,' indicated that 'disease' referred to a condition considered capable of improving or deteriorating, whereas 'defect' referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran has two periods of active duty, and the first of which lasted 17 days. The Veteran entered basic training on May 27, 1974 after an enlistment physical examination given on May 23, 1974. That examination indicated "pes planus mild asymptomatic NCD [no current disability]" and that the examinee was qualified for induction, per the induction examiner at an armed forces entry station in Jacksonville, Florida. The Veteran then proceeded to his basic training at Fort Jackson in South Carolina, and almost immediately had problems with his feet. The Veteran himself, per the medical board clinical summary, complained of his flat feet, which were causing him some discomfort with the activities of running, jumping, and basic combat training. Physical examination of the Veteran at his basic training base indicated a "severe degree of flat foot deformity with marked inversion and prominence of the callus medially, and aversion of his calcaneus. X rays and laboratory results were considered normal. On June 7, 1974, the Veteran was separated from the service under Army medical board proceedings on the basis that the Veteran's bilateral pes planus, which was deemed congenital, made the Veteran unfit for enlistment or induction into military service. After his initial period of military service, the Veteran filed a claim with VA for service connection of his pes planus, but was denied in a December 1974 rating decision because that disability was deemed to have existed prior to service, and was not aggravated by his short period of active service. The RO adjudicator noted the Veteran had bilateral pes planus prior to entrance on active duty, and that his service medical records in early June 1974 showed the Veteran complaining of his flat feet causing him discomfort with the activities required of basic trainees. This adjudicator also noted that the Veteran had been discharged from active service while in basic training as not meeting the physical requirements by reason of bilateral pes planus. The service medical records did not show any trauma to lower extremities. This adjudicator indicated the service medical records did not show any trauma to the lower extremities, and that the Veteran's bilateral pes planus had not been "aggravated to any substantial degree." The Veteran reentered the military and received another service enlistment physical examination in October 1978. The examiner recorded mild pes planus, bilateral, asymptomatic, NCD. The Veteran, on his self-reported report of medical history, noted "no" on the checkmark block for the question of whether he ever had foot trouble and also indicated in the remarks that his discharge from June 1974 had not been for medical reasons. The next medical record in the claims file comes from a VA treatment note dated April 2009, where the Veteran is noted to have chronic low back pain status post-surgeries in 2006 and 2007, diabetes mellitus type II, chronic neck pain status post-surgery from 1988, left knee arthritis, and pain in the ankles and feet. An August 2009 VA treatment note by a VA podiatrist recorded pes planus of both feet, bilateral plantar fasciitis, diabetes mellitus type II with peripheral neuropathy, and xerosis of both feet. The Veteran was prescribed orthotic inserts and special ambulator shoes for his foot pain. The Veteran had complained of symptoms of sharp, shooting pain in both feet with painful arches. Pain on palpation of the medial band of the plantar fascia was noted for both of the Veteran's feet. In January 2010 and again in July 2012, the Veteran had a podiatry surgery by VA to address a medial column fusion of the right foot. In May 2015, the Veteran submitted a handwritten disability benefits questionnaire for his feet. This document noted diagnoses of bilateral pes planus and also malunion/nonunion of the tarsal/metatarsal bones for the right foot only, originally from August 2009. The Veteran indicated he had been diagnosed with pes planus during his Army service, and later was diagnosed with arthritis. The Veteran also indicated he had two failed surgeries on the right foot, in January 2010 and July 2012, and that he is now unable to stand or walk for an extended time, using a walker most of the time to get around. VA provided a VA compensation and pension examination to consider the Veteran's right foot claim in December 2019. This examiner, a VA physician, noted diagnoses of pes planus, first noted in 1974, and also right foot degenerative arthritis, first noted in 2009. For the pes planus, both sides were affected, with bilateral pain on manipulation. Characteristic calluses were not noted, and no swelling was noted. The right foot was noted for objective evidence of marked deformity. The examiner noted the right foot arthritis was first noted by x-ray in 2009 with mild flattening of the plantar arch. This foot condition did not compromise weight bearing, and did not require arch supports, custom orthotics, or shoe modifications. The previous right foot surgeries of January 2010 and July 2012 were noted, and pain was noted for both feet on physical examination. Disturbance of locomotion was noted for the right foot only. This December 2019 VA examiner provided a negative opinion for right foot service connection. The examiner noted the diagnoses of pes planus going back prior to service and that there is a current right foot disability with limited range of motion. The Veteran noted he has severe pain on manipulation of the right foot and ankle, and the examiner stated the Veteran would be expected to have difficulty with ambulation and transfers. The examiner continued, noting the pes planus was present at the time of entering service, but there are no convincing service records that any event in either period of service would permanently aggravate the natural course of his right foot problem. The examiner noted the severity of the right foot condition as being part of his diagnosed diabetes mellitus type II and associated peripheral neuropathy in that diabetics can develop a "Charcot" joint that is likely the cause of the Veteran's current right foot deformity. The fact that the Veteran did not have a previous right foot injury implies that the post-service condition of the right foot is a natural progression of his "fairly severe" pes planus, and not an aggravation by his service of the right foot condition. The Board finds the July 2015 examination report to be probative in its description of the current state of the Veteran's right foot disability, but it was submitted without any opinion for service connection, and the etiology of the Veteran's right foot conditions is not discussed. There was also no indication that the July 2015 examiner had access to the Veteran's medical history or claims file. The December 2019 VA examination and opinion for service connection is of great probative value, in that a VA physician performed a comprehensive examination of the Veteran's right foot conditions, reviewed the claims file, and provided a thorough opinion on service connection, to include mention of the original congenital nature of the Veteran's pes planus from prior to active service. Indeed, the examiner considered the Veteran's contention, the claims file, and clinical medical evidence before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner's negative opinion was supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Veteran is competent to testify regarding observable symptoms, such as his foot pain and the effect his pes planus had on his service. 38 C.F.R. § 3.159(a)(2); see Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); see also Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). However, the Board also notes inconsistencies in the Veteran's statements about the history of his claimed right foot disability over time, such as his description of his discharge from service in 1974 due to his medical board finding him physically unsuitable for military service, his earlier claim with VA regarding his feet that was denied, and others. The Board finds the Veteran's statements and his testimony before the undersigned Veterans Law Judge to be credible as to his current descriptions of his symptoms. In short, the Board finds statements that the Veteran did have pes planus at service entrance, that his pes planus worsened in service, and that he now has, at least since 2009, a right foot disability, to be both competent and credible. Jandreau, 492 F.3d at 1377; see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). As discussed earlier, generally, service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. Congenital and developmental defects are not "diseases or injuries" in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. Although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Also, the presumption of soundness does not apply to congenital defects because such defects are not considered diseases or injuries within the meaning of 38 U.S.C. §§ 1110 and 1111. See Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003); Winn v. Brown, 8 Vet. App. 510, 516 (1996). Since the presumption of soundness does not apply in this case, the Board need not analyze whether there is clear and unmistakable evidence that the Veteran's condition was not aggravated during active service. Quirin, 22 Vet. App. at 396; see 38 U.S.C. § 1111; 38 C.F.R. § 3.304. The Board also notes that this claim is for the Veteran's right foot. The Veteran noted in the November 2018 hearing before the undersigned VLJ that his right foot injury was separate from his pes planus, he believed, but still originated back in service. The Veteran's medical records indicate a right foot condition possibly existed prior to service, distinct from the pes planus also mentioned in the medical records. On a May 23, 1974 service entrance examination, there is a notation for a "right foot injury from 3 years ago; no difficulty now," and also a separate mention on the same examination form of "pes planus, mild, asymptomatic, NCD [no current disability]. When the Veteran was separated from his initial period of service on June 14, 1974, a medical board report indicated "pes planus, bilateral, congenital" but made no further mention of a separate right foot condition. During the Veteran's second period of active duty, an October 1978 service examination notes "pes planus, mild, asymptomatic, NCD" but makes no mention of a separate right foot condition. Despite this information in the service treatment records, the Veteran has credibly testified that he did not have a right foot injury as indicated in the foregoing entry examination. The Board notes that the Veteran specifically disavowed a 1974 service medical record that referred to a right foot injury 3 years prior to service in a written statement in the claims file dated September 2015. Here, the Board notes that the Veteran's bilateral pes planus observed in service, as noted in the 1974 service medical records and medical board proceedings, have been described as a congenital defect and not a disease. Service medical authority noted that the Veteran's bilateral pes planus condition as observed in active service in 1974 and again in 1978 were present before service, even though they were asymptomatic at service entrance each time. No medical or adjudicatory authority in the claims file has opined that the bilateral pes planus condition was not a congenital defect. As such, the Board considers the Veteran's bilateral pes planus condition to be a congenital defect, and not a disease, and will follow that finding into its analysis for service connection. Because the other right foot injury on appeal was not noted in service medical records, the Board will discuss both the congenital pes planus and the right foot disability. Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation and are generally not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2015); see Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection is only possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; VAOPGCPREC 11-99. A preexisting injury or disease will be considered to have been aggravated by active 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; 38 C.F.R. § 3.306(a). 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) (emphasis added). 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). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). "The sole addition that is noncumulative in nature is medical evidence from a period many years after service showing a gradual worsening of the preexisting condition. None of that evidence points to aggravation in the service as a cause for the worsening." Jensen v. Brown, 4 Vet. App. 304, 307 (1993) Here, the Board finds that the Veteran's preexisting bilateral pes planus did not increase in severity during his active service. While the Board acknowledges that the Veteran was discharged from his first basic training because of congenital bilateral pes planus, the Board also notes that the Veteran was able to enlist again and pass his second service entrance examination in 1978 with the same notation regarding his bilateral pes planus, that it was present at service entrance and therefore congenital, but that it was also mild, asymptomatic, and not a current disability. In simpler terms, had the Veteran's 1974 experience from service caused permanent aggravation or superimposition of disability on the preexisting pes planus, then the second 1978 military entrance examination would have noted that. Instead, the 1978 second military entrance examination used the same nomenclature and descriptive terms for the Veteran's preexisting pes planus: that it was mild, asymptomatic, and not a current disability. Therefore, the Veteran's pes planus cannot be said to have been permanently aggravated in service from either 1974 or in 1978. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Therefore, the only avenue remaining for the Veteran's right foot service connection claim is one of direct service connection. The Board observes the earliest right foot complaint in the claims file is from 2009, 31 years after active service. In addition, the Board finds that the gap in time between the Veteran's last date of active service, in 1978, to his initial evaluation by any medical provider regarding a right foot disability in 2009 to be probative of a lack of nexus between the diagnosed current disabilities and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source. Upon review of the record, the Board concludes that entitlement to service connection for a right foot disability, with degenerative joint disease, is not warranted. The Board notes current diagnoses of the right foot degenerative joint disease, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran's contentions, and the Veteran's post-service statements are noted. The Board notes that the Veteran's entrance examinations from 1974 and again in 1978 were all silent for any right foot disability beyond the congenital pes planus that led to a chronic condition related to the right foot. There is no competent evidence to tie the current assertions of a right foot disability to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. With regard to presumptive service connection for degenerative arthritis of the right foot, the weight of evidence shows no chronic symptoms of this condition during active service, no continuous symptoms of the condition since service, and that the condition did not manifest to a compensable degree within one year of service. As such, presumptive service connection is not warranted. 38 C.F.R. §§ 3.303, 3.309. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran's claimed right foot disabilities were not incurred in service or superimposed upon preexisting pes planus. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a right foot disability on a direct or superimposition basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.