Citation Nr: 21041997 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-16 140 DATE: July 10, 2021 ORDER Entitlement to service connection for bilateral pes planus is granted. FINDING OF FACT The Veteran's bilateral pes planus began during active service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to March 1973, and from March 1974 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. Initially, the Board notes that the Agency of Original Jurisdiction (AOJ) characterized the issue on appeal as a petition to reopen a previously, finally denied service connection claim. The Board disagrees and finds that the November 1998 original service connection claim remains on appeal. By way of background, the Veteran filed an original service connection claim for bilateral pes planus in November 1998. In September 1999, the AOJ denied the claim, and notified the Veteran accordingly. In December 1999, the Veteran timely filed a Notice of Disagreement (NOD), and a Statement of the Case (SOC) was issued in February 2000 and August 2000. Subsequently, the Veteran timely filed a VA Form 9 Appeal to the Board of Veterans' Appeals in September 2000. On the form, the Veteran indicated that he was appealing all of the issues listed in the SOC. In a February 2001 VA Form 8 Certification of Appeal, the claim of service connection for pes planus was certified to the Board. In May 2001, the Veteran was afforded a Board hearing. A review of the transcript shows the Veteran's representative believed the issue of service connection for pes planus was before the Board. However, the Veterans Law Judge (VLJ) presiding over the hearing stated that only a claim for posttraumatic stress disorder (PTSD) was properly before the Board, and insisted that only the PTSD claim was listed on the VA Form 9. The representative noted that the VA Form 8 listed three claims, including the pes planus claim, but then, without consulting the Veteran on the record, decided to retract the pes planus claim apparently based on the VLJ's misreading of the forms. The Board finds the withdrawal of the service connection claim for bilateral pes planus was improper, as the withdrawal was made by the representative based on the VLJ's mistaken belief that only the PTSD claim was appealed and certified to the Board. As noted above, both the Form 9 and Form 8 indicate the pes planus claim was, in fact, appealed and certified to the Board. Service Connection Criteria Service connection may be granted for 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). VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for bilateral pes planus The Veteran contends that he is entitled to service connection for bilateral pes planus (flat feet) that onset during active service. During the March 2021 Board hearing, the Veteran explained that when he rejoined the military in 1974, he began to have problems with his feet. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment notes from March 2015 show the Veteran has a current diagnosis of bilateral pes planus. During service, the Veteran was noted to have pes planus on his March 1974 service entrance examination. He continued to have trouble with his feet, and was placed on physical profiles due to pes planus in May 1974, August 1974, December 1974, and March 1975. On the Veteran's April 1975 service separation examination, he was noted to have pes planus. Thus, the question becomes whether the current disability is related to service. On this question there is probative evidence in favor of and against the claim. The evidence against the claim includes a May 1999 VA examination report. At the examination, the Veteran reported that he was provided with ill-fitting shoes during service, and he has had problems with his feet since service. The VA examiner noted that the Veteran had a slight tendency for pes planus, but determined he did not have any diagnosis associated with his feet. The evidence in favor of the claim includes post-service VA and private medical records showing the Veteran has had multiple diagnoses associated with his feet. In April 1998 and August 1999, the Veteran was noted to have plantar fascitis. Treatment notes from November 1999 and December 1999 show the Veteran was diagnosed with pes planus. Additionally, in a March 2015 Disability Benefits Questionnaire, the Veteran's private physician diagnosed bilateral flat feet, and noted that it began while the Veteran was in service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current bilateral pes planus arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral pes planus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.