Citation Nr: 22015241 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-00 096 DATE: March 16, 2022 ORDER Service connection for a right foot disorder is denied. Service connection for a left foot disorder is denied. FINDINGS OF FACT 1. The Veteran's bilateral pes planus was noted at the time of his entrance into service in April 2001, and his bilateral pes planus is not shown to have permanently increased in severity beyond its natural progression during his active service. 2. The weight of the evidence is against a finding that any plantar fasciitis or heel sprain either began during active service, within one year of separation from active service, or was otherwise caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disorder have not been met. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. 2. The criteria for service connection for a left foot disorder have not been met. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2001 to May 2008. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2016 Department of Veterans Affairs (VA) rating decision. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2019. A transcript of the hearing is of record. In May 2021, the matters were remanded for additional development. In August 2021, the agency of original jurisdiction (AOJ) granted service connection for right carpal tunnel syndrome and left carpal tunnel syndrome. This represents a complete grant of his appeal in regard to these claims. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). These issues are no longer before the Board. Service Connection Service connection is warranted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be competent evidence showing: (1) the existence of a claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to be service connected if manifested as chronic in service or to a compensable degree within a specified period after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309(a), service connection may be established by showing continuity of symptoms. See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). When no pre-existing condition was "noted" upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence both that (a) the condition pre-existed service and (b) the pre-existing condition was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1132 (presumption of sound condition upon entrance to service). "[I]f 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." Wagner, 370 F.3d at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In this context, for a pre-existing condition to have been "noted" means that it must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see 38 U.S.C. § 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of the condition. Id. at 240. However, the disease need not be symptomatic at the time of the entrance examination, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that "bunions" were noted at induction examination where the orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet."). In this case, the Veteran asserted that his bilateral pes planus was aggravated by his active service. At the May 2019 Board hearing, the Veteran testified that he never knew he had pes planus prior to his active service. He testified that he complained of foot symptoms during his active service. The Veteran's service treatment records (STRs) show that moderate asymptomatic pes planus was noted at his April 2001 entrance physical. In addition, he specifically denied having any foot trouble in an accompanying medical questionnaire. In May 2001, May 2002, and May 2003, he denied having painful joints. In a December 2003 medical questionnaire, he specifically denied having any foot trouble. In April 2004, he again denied having painful joints. In February 2006 and March 2006 medical questionnaires, he specifically denied having any foot trouble. In a May 2007 Post-Deployment Health Assessment, he indicated that he had numbness or tingling in his hands or feet. In a February 2008 medical questionnaire, he again specifically denied having any foot trouble. At his April 2008 separation physical, he reported that his overall health had remained the same since his last medical assessment and denied experiencing any illness or injuries that caused him to miss duty longer than three days. He reported that he had back pain and headaches, but did not report any foot symptoms. His STRs do not show any treatment or diagnosis for foot symptoms during his active service. In this case, because pes planus was noted at entry, the presumption of soundness does not apply and the question is whether his pes planus was aggravated beyond its natural progression by his active service. The Veteran's post-service medical records show that he first complained of foot symptoms in December 2014 when he was treated for plantar fasciitis and heel pain. October 2015 x-rays of his feet showed pes planus but no significant degenerative changes. In July 2021, the Veteran was afforded a VA examination. The examiner reviewed the Veteran's claims file, interviewed the Veteran, and conducted an examination. The examiner reported that the Veteran was diagnosed with pes planus, plantar fasciitis, and heel strain. Regarding the Veteran's pes planus, the examiner reported that the Veteran's pes planus, which clearly and unmistakably existed prior to his active service, was not aggravated by his active service. The examiner noted that the Veteran's STRs showed that while he reported having numbness in the hands or feet, the questionnaire did not specify if the numbness was more the hands, feet, or both. The examiner reported that the Veteran's STRs did not show any numbness in his feet or a diagnosis of numbness in the feet. The examiner reported that the Veteran's STRs did not show evidence of aggravation of his pes planus. Regarding the Veteran's plantar fasciitis and heel sprain, the examiner reported that the Veteran's plantar fasciitis and heel sprain were all diagnosed after the Veteran's separation from active service and were not related to his active service. Laypersons are competent to testify as to their observations and as to some medical matters, including the existence of pes planus. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The question as to whether his pes planus was aggravated by his active service, as opposed to the observation of an existence of pes planus itself, appears to be the type of complex medical matter as to which laypersons are not competent to testify, because it would require assessing fine distinctions between specific measurements, as set forth in the VA Rating Schedule criteria for this medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 4.71a (musculoskeletal system). The Veteran has not submitted any medical evidence showing that his pes planus was aggravated by his active service, and in fact, he specifically denied having any foot trouble or joint pain during his active service in April 2001, May 2001, May 2002, May 2003, December 2003, April 2004, February 2006, March 2006, and February 2008. Furthermore, he did not report any foot symptoms at his April 2008 separation physical and reported his overall health had remained the same since his last medical assessment. In addition, the Veteran also has not submitted any medical evidence showing that any plantar fasciitis or heel sprain was due to his active service. The July 2021 VA examiner opined that the Veteran's pes planus was not aggravated beyond its natural progression by the Veteran's active service. The July 2021 VA examiner reported that the Veteran's plantar fascitis and heel sprain were diagnosed after his separation from active service and were not related to his active service. As such, the Board concludes that the Veteran's pes planus, which was noted at service entrance, did not undergo aggravation in service. Finally, the weight of the evidence does not show that any plantar fasciitis or heel sprain was due to his active service as the first evidence of these conditions was not until 2014, over six years after his separation from active service. Accordingly, the criteria for service connection have not been met for a right foot disorder or a left foot disorder, and the claims must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.