Citation Nr: 23006809 Decision Date: 02/02/23 Archive Date: 02/02/23 DOCKET NO. 18-26 768 DATE: February 2, 2023 ORDER Entitlement to service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. The Veteran's bilateral pes planus was noted on entrance to service. 2. The evidence of record persuasively weighs against finding that the Veteran's bilateral pes planus was aggravated by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service with the United States Army from January 1991 to June 1991 and from December 2003 to August 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran currently has a 100 percent combined evaluation for compensation, effective January 15, 2014. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). Entitlement to service connection for bilateral pes planus. The Veteran contends that her preexisting pes planus worsened during active service. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. If a pre-existing disorder is "noted" on entering service, in accordance with 38 U.S.C. § 1153, the veteran has the burden of showing an increase in disability during service. If the veteran meets that burden and shows that an increase in disability occurred, the burden then shifts to the government to show that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Here, the Veteran's bilateral pes planus was noted upon entrance to service. Therefore, aggravation and not incurrence during service is at issue. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Green v. Derwinski, 1 Vet. App. 320 (1991). "Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran contends that her pre-existing pes planus worsened during service, asserting in essence that her pes planus was asymptomatic prior to service, but required orthotic support during service due to aggravation. The Veteran's February 1987 Report of Medical Examination, conducted at entrance to service, found that the Veteran's feet were abnormal with mild pes planus, asymptomatic. The Veteran's service treatment records (STR) show that the Veteran was provided arch supports by a podiatrist in July 1987. The Veteran's STR do not show any additional treatment, symptoms, or complaints related to her pes planus or other foot conditions. Rather, in May 1991, May 1994, and May 2000 Reports of Medical History, the Veteran checked "no" for foot trouble. In the corresponding May 1991, May 1994 and May 2000, Reports of Medical Examination, the examiner found the Veteran's feet to be normal. The Veteran was provided a VA examination for foot conditions in August 2017. The Veteran was diagnosed with bilateral pes planus. The Veteran did not report pain, flare-ups, or functional loss associated with her foot condition. The Veteran stated that she noticed that her feet look bigger since separation from service. The examiner found that the Veteran does not have pain on use of feet, pain on manipulation of the feet, indication of swelling on use, characteristic calluses, extreme tenderness of plantar surfaces, marked deformity, marked pronation, weight bearing over or medial to the great toe; inward bowing of the achilles tendon, inward displacement, or serve spasm of the achilles tendon. The examiner found decreased longitudinal arch height on weight-bearing. The examiner noted that the Veteran does not use arch supports, built up shoes, or orthotics. The examiner found no functional loss attributable to the Veteran' pes planus. The examiner found that the Veteran's bilateral pes planus, which clearly and unmistakable existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner found that the Veteran's bilateral pes planus has not been aggravated beyond normal progression by her military service. The examiner explained that her pes planus was very mild and asymptomatic on his February 1987 enlistment examination and continues to be very mild and asymptomatic as noted on examination. In an April 2018 addendum, the examiner again found that the Veteran's bilateral pes planus, which clearly and unmistakable existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that the Veteran's service records show that arch supports were ordered during service. The examiner explained that there is no documented associated symptomatology or aggravation related to pes planus during service, and therefore cannot confirm exacerbation or symptomatology over time during military service. The Board finds the opinions of the August 2017 examiner as to aggravation of the Veteran's pes planus to be probative as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It is important to note that no opinions or suggestions are contained in the record that find or suggest that the Veteran's current pes planus was aggravated by active service. Here, there is no competent evidence that the Veteran's back condition was aggravated by service. To the extent the Veteran's statements are being offered to establish aggravation, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran's assertions as to aggravation of her pes planus during active service are of little probative value. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claims that the Board cannot, unfortunately, ignore. Here, there is no competent and probative evidence to show that the Veteran's current pes planus was aggravated during active service. Given the foregoing, the Board finds that the evidence of record is persuasively against the claim for service connection for bilateral pes planus and that the claim must be denied. 38 U.S.C. §§ 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for bilateral pes planus is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board VanValkenburg, E. 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.