Citation Nr: 21041604 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-49 835A DATE: July 9, 2021 ORDER Entitlement to service connection for pes planus is granted. FINDING OF FACT The Veteran's pes planus was permanently aggravated beyond its normal progression by his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for pes planus have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1986 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board notes the Veteran submitted a January 2021 Decision Review Request for his claim under the new appeals management system. However, as stated in the January 2021 Notification letter, the claim cannot be processed under the new appeals management system, because it is already being processed under the legacy system. Therefore, the claim will remain under the legacy system at this time. The Board issued a remand in April 2020 instructing the RO to contact the Veteran about the places he received treatment after service and obtain a VA examination to determine the nature and etiology of the Veteran's pes planus. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained sent a September 2020 and October 2020 letter to the Veteran requesting authorization and information about where he received treatment. The Veteran submitted an October 2020 statement indicating that he received treatment from Dr. B. H. The RO obtained those records from Dr. B. H. as well as a December 2020 VA examination. The Board finds the RO substantially complied with the Aril 2020 remand directives. Entitlement to service connection for pes planus. The Veteran contends that his pre-existing pes planus was permanently aggravated by his military service. During the February 2020 Board hearing, the Veteran stated that he served as an infantryman which required him to march and complete long hikes. He was told by the doctors in service that the boots he wore did not agree with his feet which led to swollen ankles and modified duty. He also stated that he was seen by a podiatrist within one year after being discharged from service. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Because a pre-existing pes planus disability was noted upon entry into service, the Veteran's claim cannot be considered one for in-service incurrence of that disability; but rather, must be analyzed based on aggravation of a preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing disease or injury will be considered to have been aggravated by military 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 progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). 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 Wagner, supra; Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence. See Cotant v. Principi, 17 Vet. App. 116, 130 (2003); 38 C.F.R. § 3.306(b). In this case, service treatment records (STR) indicate the Veteran had pes planus prior to service and post-service treatment records show the Veteran has a current diagnosis of pes planus. See e.g., April 1988 STR (treated in boot camp for pes planus; opinion: unable to perform full duty and does not meet the minimum standards for enlistment or induction); May 2018 VA treatment record (flat feet); May 2018 VA Podiatry Consult (bilateral pes planus, bunions, and hammertoes). Also during the February 2020 Board hearing, the Veteran testified that the September 1993 VA examination was inadequate, because the examiner misstated his medical history. Specifically, the examiner stated that the Veteran had corrective surgical scars on his toes; however, the Veteran stated that he never had surgery. The examiner did not consider the Veteran's statement nor did the examiner offer a formal opinion on the etiology of the Veteran's disability. The Board agreed and remanded the claim for a new VA examination. The Veteran's pes planus was re-evaluated in December 2020. The Veteran reported being diagnosed more than 35 years ago after wearing boots in the military and then discharged one year later. He experienced constant dull pain in his feet. The examiner confirmed the diagnosis of pes planus. The examiner also noted pain on the use of the feet and the manipulation of the feet. The examiner opined that the claimed condition was less likely than not incurred during service, as the Veteran's entrance exam dated July 1986 showed bilateral pes planus, hallux valgus and hammer toes, indicating the Veteran had the condition prior to time in service. While there were records within the Veteran's file of foot complaints to include records dated August 1977, November 1987, and December 1987, this was a continuation of the foot condition the Veteran had prior to service and not new conditions due to service. However, the examiner also concluded that the claimed condition, which clearly and unmistakably exited prior to service, was aggravated beyond its natural profession by an in-service injury, event, or illness. Based on the foregoing, the Board finds that entitlement to service connection is warranted. The Veteran provided credible and competent testimony regarding an increase in severity of his pes planus during service. The evidence of record showed the Veteran's pes planus clearly and unmistakably existed prior to service, he was treated in service, and ultimately discharged from service due to his pes planus. He continued to experienced pain with the use of his feet after service. Based on the first two elements of service connection being satisfied, the Board sought a competent medical opinion regarding whether the pes planus increased in severity beyond the natural progression of the disability during service. After reviewing the evidence of record including the Veteran's statements, the examiner supported a finding that the Veteran's pes planus was aggravated by his military service. There is no evidence of record to contradict this finding. Therefore, entitlement to service connection for pes planus is granted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.