Citation Nr: 23019248 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 19-14 813 DATE: March 29, 2023 ORDER Entitlement to service connection for bilateral pes planus is granted. FINDING OF FACT With respect to the Veteran's bilateral pes planus, which was noted on his entrance examination, the evidence is sufficient to apply the presumption of aggravation and does not contain clear and unmistakable evidence to rebut that presumption. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 30, 1979, to July 26, 1979. A March 2016 administrative decision determined that the Veteran's service from May 30, 1979, to July 26, 1979, is honorable for VA purposes, and is not a bar to VA benefits. The Veteran's service from March 18, 1980, to November 6, 1981, was terminated by a court-martial due to a bad conduct discharge and is a statutory bar to VA benefits under the provisions of 38 C.F.R. § 3.12 (c)(2). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). A hearing before a Veterans Law Judge was scheduled in March 2022; however, the Veteran did not appear and did not provide good cause for his failure to appear. 1. Entitlement to service connection for bilateral pes planus Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A preexisting injury or disease will be considered to have been aggravated by active military, naval, air, or space 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 progress of the disease. 38 U.S.C. § 1153. Analysis The Veteran has asserted that his pre-existing bilateral pes planus was aggravated by active service. The Board notes that the period of honorable active service was from May 1979 to July 1979. The Veteran's enlistment examination in April 1979 noted bilateral pes planus, mild, asymptomatic. If review of the evidence reveals worsening of a condition noted on entry to service, the presumption of aggravation attaches unless the evidence clearly and unmistakably shows the worsening of the condition was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Veteran's service treatment records dated June 1979 note that he was diagnosed with callouses and athlete's foot, bilaterally. He was referred to the podiatry clinic. The podiatry clinic diagnosed chronic tinea pedis and callouses. He was also ordered to report for a boot fitting. As callouses are one of the characteristics of pes planus, the Board finds that the June 1979 findings are sufficient to warrant the application of the presumption of aggravation. The Veteran was afforded a VA examination in October 2017. The examiner noted a diagnosis of flat foot (pes planus). The Veteran reported that he lost his arch due to wearing the boots while serving in the Army "around 1980." Over time he feels his condition has become worse because now he has bunions. Also, his ankles have "rolled in more" and it makes it hard to walk with pain. The examiner noted pain that is accentuated on use of feet, pain on manipulation of feet; pain on weight bearing, swelling; and characteristic calluses. The examiner found that pain causes functional loss. He is unable to tolerate prolonged standing or walking. He is not able to tolerate lifting heavy (50 lb) boxes off of a truck. The examiner noted decreased longitudinal arch height bilaterally and that the weight bearing line falls over or medial to the great toe. The examiner noted inward bowing of the achilles' tendon. The Veteran reported, "I feel like I'm walking on razor blades when I walk over rocks or uneven surfaces." "When I walk on the uneven surfaces, I might step on a piece of a brick and my foot goes outside the brick. This occurs about every other week. Pain can be a 10/10. Duration is about 1-2 days." "I can't run, I can't skip, hop, or jump. I can't stand for prolonged periods of time." A VA medical opinion was submitted in January 2018 by a different examiner. The examiner opined that the Veteran's bilateral flat feet (pes planus) which clearly and unmistakably existed prior to service was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner's rationale was as follows: Temporary aggravation is plausible; however, there is no evidence of permanent aggravation of the claimed pre-existing bilateral pes planus. The current medical literature does not support. A nexus has not been established. The evidence shows that bilateral flat feet existed prior to service. As further noted above, the Board has also determined that findings in the in-service treatment records from the Veteran's initial period of service are sufficient to warrant the application of the presumption of aggravation. As such, VA must now show clear and unmistakable evidence to rebut the presumption. In this regard, the rationale for the opinion that the Veteran's pes planus was clearly and unmistakably not aggravated during service is that temporary aggravation is plausible, there is no evidence of permanent aggravation, and that the literature does not support the claim. However, the conclusion that there is no evidence of permanent aggravation in the face of significant current symptoms and findings and the lack of specific literature by the examiner is not found to rise to the kind of level of clear and unmistakable evidence that is necessary to rebut the presumption of aggravation. Accordingly, the Board finds that the presumption of aggravation has not been rebutted and that service connection for the Veteran's bilateral pes planus is therefore warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.