Citation Nr: 21041370 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-48 308 DATE: July 9, 2021 ORDER Service connection for left foot pes planus is denied. Service connection for right foot pes planus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's left foot pes planus disorder had its onset in or is otherwise related to service, to include a service-connected disability. 2. The preponderance of the evidence is against a finding that the Veteran's right foot pes planus disorder had its onset in or is otherwise related to service, to include a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot pes planus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for right foot pes planus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1979 to March 1982. In January 2020, the Veteran testified before a Veterans Law Judge (VLJ) and a transcript of the hearing is of record. In April 2020, the Board remanded the current claims for additional development. During the pendency of the appeal, in an October 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for other specified trauma and stressor related disorder. This grant of service connection constitutes a full award of the benefits sought on appeal with respect to the Veteran's claim for an acquired psychiatric disorder. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Accordingly, that issue is no longer in appellate status. Entitlement to service connection for left and right foot pes planus. 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; 38 C.F.R. § 3.303(a). To establish service connection, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge 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). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran seeks service connection for left and right foot pes planus and asserts that these disorders are related to his right ankle and foot injuries that occurred during active duty service. See January 2020 Board Hearing Transcript. After a thorough review of the record, the Board finds that service connection for left and right foot pes planus is not warranted on a direct or secondary basis. The record reflects that the Veteran has been diagnosed with bilateral pes planus. See July 2020 VA Examination report. Accordingly, this evidence is sufficient to meet the current disability element for establishing service connection. As for service incurrence, the Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnosis for pes planus. The Board notes that the Veteran's STRs show low arches in March 1979. However, this problem has not otherwise been shown to have persisted, as the remainder of the STRs are silent for any subsequent reports of foot arch problems. The Board also acknowledges the Veteran's reports that suggest pes planus began as a result of his in-service right ankle/foot injuries, persisted, and he had to wear orthotics for flat feet since he left service. See January 2020 Board Hearing Testimony. However, other, more probative evidence of record contradicts and outweighs the Veteran's statements regarding continuity of symptomatology. In pertinent part, within one year after separation of service, the Veteran underwent a May 1982 orthopedic examination to evaluate his feet and, while he was diagnosed with status post resection of the 5th metatarsal, no other findings were reported and he was noted to walk well. VA treatment records also reflect that the Veteran actually had increased arch height (pes cavus) and no diagnosis for pes planus until March 2014. Moreover, VA treatment records document the Veteran attempted to receive a prescription for shoe inserts in October 2000 and June 2007 reports that he had not tried orthotics or special shoes for his foot problems. This evidence is inconsistent with the Veteran's reports of having pes planus and using orthotics since service. Thus, the Board finds that the more probative evidence of record weighs against establishing service connection on the basis that the claimed disabilities had their onset in service and persisted. However, because the Veteran contended that his current left and right foot pes planus was related to his in-service right ankle and foot injuries, a VA examination for a medical opinion was obtained. In July 2020, the Veteran's bilateral pes planus was evaluated for etiological purposes. The VA examiner diagnosed bilateral pes planus and rendered a negative direct nexus opinion. The examiner explained that the Veteran's STRs did not show a diagnosis for pes planus and the VA treatment records extensively documented pes planus that began in 2014. The examiner acknowledged the evidence showing a diagnosis for pes cavus in 2000, but explained this meant high arches. The VA examiner also opined that the Veteran's bilateral pes planus was not related to or aggravated by his service-connected right ankle and right 5th metatarsal disorders and explained that there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite joint or limb, unless the injury caused partial/complete paralysis, or resulted in an obvious Trendelenburg gait. The examiner noted that the Veteran's service-connected disabilities, as shown in the record, did not support this level of severity. The examiner also acknowledged that there was some documentation that the Veteran's right foot fibroma may have caused his right foot pes planus, but this did not explain how it could have caused his left foot pes planus. The examiner explained that one joint's disease does not spread to another or cause damage to it. The Board finds the VA examiner's opinions to be highly probative as they are based on a thorough review of the evidence of record and are adequately supported by such record. There are also no opinions, or other competent evidence, to the contrary. In that regard, the Veteran's VA treatment records reflect that, despite some balance problems associated with his service-connected right ankle and right 5th metatarsal disorders, the Veteran largely did not have difficulties with walking or with balance. Moreover, VA treatment records reflect that in October 2000 and May 2013, the Veteran was not shown to have pes planus. Rather, as indicated by the VA examiner above, the Veteran was first noted to have pes planus in March 2014. The Board acknowledges the Veteran's testimony that suggests his service-connected right ankle and right 5th metatarsal disorders caused/aggravated his bilateral pes planus. See January 2020 Board Hearing Transcript. The Board finds, however, that he is not competent to speak to the etiology of his bilateral pes planus. Whether such a relationship actually exists between these service-connected disorders and his bilateral knee disorders is a medical question beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed Cir. 2007). The Board also acknowledges the Veteran's contention suggesting that the July 2020 VA examination was inadequate because it was not performed by a podiatrist and the examiner asked what certain medical terms meant. See October 2020 Report of General Information. However, this general assertion that the medical examination was inadequate is not sufficient to raise the matter of the competency of the medical examiner. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Moreover, VA law also does not require that a podiatrist conduct foot examinations. Rather, the examination report is complete and comprehensive, and the medical opinions are accompanied by rationales that are informed by, and consistent with, the evidence. Accordingly, the Board finds that the July 2020 VA examination and medical opinions are adequate for adjudication purposes. Based on the foregoing, the Board finds that there is no evidence that the Veteran's bilateral pes planus disorders had their onset during service, or were otherwise related to his active duty service, to include his in-service ankle and right 5th metatarsal injuries knee injuries. Consequently, the Board concludes that, while the Veteran has diagnoses for bilateral pes planus, the evidence preponderates against establishing that a nexus exists between his current bilateral pes planus disabilities and his active duty service. Accordingly, his claims for entitlement to service connection must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. The Board also finds that there is no probative and competent medical evidence of record to indicate that the Veteran's service-connected ankle and right 5th metatarsal disorders played a role in the development or aggravation of his bilateral pes planus disorders. Although the Veteran's gait appears to have been affected by these service-connected disabilities, the competent and probative VA treatment records and the July 2020 VA examination report suggest that any disturbance of gait related to these disorders did not cause and/or aggravate the Veteran's pes planus. There is otherwise no favorable medical opinion of record, and no other competent evidence of record to suggest a relationship between the Veteran's bilateral pes planus disorders and his service-connected right ankle and right 5th metatarsal disorders. Absent evidence of a nexus between the claimed conditions and a service-connected disability, service connection cannot be granted on a secondary basis. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.