Citation Nr: 22018361 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-27 592A DATE: March 29, 2022 ORDER Entitlement to service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. Bilateral pes planus did not have its onset in service and is not otherwise related to the Veteran's active military service. 2. Bilateral pes planus is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Bilateral pes planus was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 101, 1101, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. 2. Bilateral pes planus is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C. §§ 1131, 5017; 38 C.F.R. §§ 3.303, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to June 1983 and from October 1993 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral pes planus. The Veteran filed a notice of disagreement (NOD) in April 2015 and a statement of the case (SOC) was issued in May 2016. The Veteran perfected a timely appeal in June 2016. In Board decisions dated May 2020 and May 2021, the claim was remanded for further evidentiary development. As will be discussed below, review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was most recently issued in August 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The Board recognizes that there are notations of bilateral hallux valgus in the record. See the enlistment examination dated August 1992 and the VA examination report dated July 2020. However, the Veteran, through his attorney, has explicitly asserted entitlement to service connection for bilateral pes planus. See the Veteran's claim dated June 2014, the NOD dated April 2015, and the VA Form 9 dated June 2016. This matter has been remanded twice in the past, and the Veteran is represented by an attorney who has had multiple opportunities to expand the scope of the Veteran's claim, but has not done so. In light of the Veteran's contentions and the evidence of record, the Board finds that the appeal is limited to the issue of entitlement to service connection for bilateral pes planus. 1. Entitlement to service connection for bilateral 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). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. To establish entitlement to service connection on a direct basis, the record must contain competent evidence of (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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts entitlement to service connection for bilateral pes planus, which he contends was incurred during his active military service and/or developed as secondary to his service-connected disabilities. See the written argument of the Veteran's attorney dated May 2020. The Veteran is service connected for the following disabilities: posttraumatic stress disorder (PTSD), myocardial infarction, degenerative arthritis of the lumbar spine, degenerative arthritis of the cervical spine, degenerative joint disease (DJD) of the right knee with limitation of flexion and extension, DJD of the left knee with limitation of flexion and extension, DJD of the right elbow with limitation of supination, left shoulder bursitis, radiculopathy of the right and left upper and lower extremities, fascial myokymia of the left eye, right ring finger nodule, hypertension, and scar of the left knee. The Veteran served on active duty from March 1976 to June 1983 and from October 1993 to April 2007. He was also a member of the United States Army Reserve and National Guard. His service treatment records (STRs) include records corresponding to his membership in the Reserve and National Guard. These records include a December 1986 enlistment examination which documents a diagnosis of mild pes planus. A notation of hallux valgus was documented in an August 1992 enlistment examination. However, pes planus was not documented on any examination or STR corresponding to a period of active service. Moreover, no complaints related to the Veteran's feet were documented in his STRs. The Veteran's October 2005 retirement physical did not document any complaints or abnormalities as to his feet, including pes planus. Post-service treatment records show that bilateral pes planus was documented in VA treatment records dated January 2012. The Veteran was afforded a VA examination in July 2020, which confirmed a diagnosis of bilateral pes planus. The examiner noted the Veteran's report that he first noticed foot pain in 2000, which he attributed to running in boots. In multiple July 2020 VA medical opinions, the examiner determined that the Veteran's bilateral pes planus is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected conditions." The examiner explained that the Veteran's bilateral pes planus and the service-connected right and left knee disabilities are not medically related. The examiner emphasized that bilateral pes planus is a separate entity entirely from the right and left knee disabilities and unrelated to them. The examiner indicated that a thorough review of medical literature failed to demonstrate a causal relationship and therefore a nexus had not been established. The examiner further indicated that the Veteran's bilateral pes planus disability was not aggravated by the service-connected right and left knee disabilities. In a separate August 2020 addendum opinion, the VA examiner reported that it is less likely than not that the Veteran's bilateral pes planus is secondary to his service-connected disabilities to include PTSD, myocardial infraction, degenerative arthritis of the lumbar spine, degenerative arthritis of the cervical spine, left shoulder bursitis, radiculopathy of the right and left upper extremities, degenerative joint disease of the right elbow, fascial myokymia of the left eye, right ring finger nodule, hypertension, and left knee scar. The examiner explained, "[t]here is no medical basis for any of the listed conditions to cause pes planus. All of those conditions are pathophysiologically separate from and unrelated to pes planus deformities." The examiner continued, "[f]urthermore, this Veteran's pes planus deformities were documented at enlistment in 1986, prior to the development of any of the other service-connected disabilities listed above." Pursuant to the May 2021 Board Remand, additional VA medical opinions were obtained in August 2021. As to the service-connected lumbar spine disability, cervical spine disability, left and right knee disabilities, and right and left lower extremity radiculopathy, the examiner opined that the diagnosed bilateral pes planus is less likely than not (less than 50 percent probability) due to or the result of the Veteran's service-connected disabilities. The examiner explained, There is no clear evidence from review of orthopedic literature (Wheeless' Textbook of Orthopedics) to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. This level of severity is not supported based on record review, history, or exam. It is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it. The August 2021 VA examiner additionally determined that the Veteran's diagnosed bilateral pes planus was not aggravated beyond its natural progression by his service-connected disabilities. The examiner explained that the conditions are medically unrelated. She emphasized that a Trendelenburg gait has not been documented and treatment notes show no chronic foot complaints or chronicity of care. She stated, "[n]o aggravation is plausible." The August 2021 VA examiner further indicated that the Veteran's bilateral pes planus was not caused or aggravated by his service-connected hypertension, right elbow disability, left shoulder disability, left eye disability, right and left upper extremity radiculopathy, scar of the left knee, right ring finger nodule, myocardial infarction, or PTSD. The examiner explained that the disabilities are not medically related to pes planus, which is a separate entity entirely. The examiner continued, "[a] thorough review of medical literature failed to demonstrate a causal relationship. A nexus has not been established. Pes planus can either be congenital or acquired." He explained that "[a]cquired pes planus most commonly occurs secondary to posterior tibial tendon dysfunction. Other causes include injuries to soft tissues such as plantar fascia or spring ligament." The examiner further noted that "the conditions are medically unrelated. Treatment notes show no chronic foot complaints or chronicity of care. No aggravation is plausible." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this matter, the Board finds that the August 2021 medical opinions were based on a review of the record, including the statements and evidence submitted by the Veteran, and the examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the cumulative findings expressed in the August 2021 VA medical opinions. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed bilateral pes planus and the Veteran's active duty service, as well as his service-connected disabilities, outweighs any medical evidence suggestive of a nexus or aggravation. Significantly, no medical professional has suggested that the Veteran suffered from bilateral pes planus that was incurred in or aggravated by his active duty service, or as secondary to his service-connected disabilities. In fact, neither the Veteran nor his attorney has presented, identified, or even alluded to the existence of any such medical evidence or opinion. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). The Board has carefully considered the contentions of the Veteran that he has bilateral pes planus, which was incurred during service and/or as secondary to his service-connected disabilities. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran's lay theories regarding the onset and etiology of his bilateral pes planus are contradicted by the conclusions of the August 2021 VA examiner who specifically considered the Veteran's lay statements in rendering the negative opinions. The Board finds the specific, reasoned opinion of the trained health care provider who conducted the August 2021 VA opinions to be of greater probative weight than the more general lay assertions of the Veteran. (Continued on the next page) The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in relative equipoise. Considering the record, including STRs, post-service medical evidence, July 2020, August 2020, and August 2021 VA medical opinions, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, as the evidence is not in approximate balance and is persuasively against the Veteran's claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, No. 20-2067 (Fed. Cir. 2021). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.