Citation Nr: 24008131 Decision Date: 02/15/24 Archive Date: 02/15/24 DOCKET NO. 11-17 607 DATE: February 15, 2024 ORDER Entitlement to service connection for bilateral pes planus is granted. FINDING OF FACT The most probative evidence of record shows that the Veteran's bilateral pes planus, which preexisted service and was noted on entry, was aggravated sufficiently to apply the presumption of aggravation, and that the record 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, 1131, 1153, 5107; 38 C.F.R. §§ 3.303(a), 3.306(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the United States Army from March 1981 to March 1983. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Los Angeles, California. The Veteran testified at a Travel Board hearing in March 2017. A transcript of the hearing has been associated with the claims file. The VLJ who conducted that hearing is no longer with the Board; however, the Veteran declined his opportunity to have another hearing. In March 2018, the Board of Veterans' Appeals (Board) denied service connection for bilateral pes planus. The Veteran appealed. In October 2020 the United States Court of Appeals for Veterans Claims (the Court) granted a joint motion for remand (JMR), vacating the Boards March 2018 decision and remanded the following issue, service connection for bilateral pes planus in accordance with the terms of the JMR. In March 2021, the Board of Veterans' Appeals (Board) denied service connection for bilateral pes planus and the Veteran again appealed. In April 2023 the United States Court of Appeals for Veterans Claims (the Court) issued a Memorandum Decision, vacating the Boards March 2021 decision and remanding the issue of entitlement to service connection for bilateral pes planus. Service Connection 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 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. §§ 1113(b); 38 C.F.R. §§ 3.303(d). Where a disorder is noted on service entrance or a Veteran is otherwise not presumed sound on entrance, 38 U.S.C. § 1153 applies. In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). "If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease.'" Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); Horn v. Shinseki, 25 Vet. App. at 235 (2012) ("Once the Veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease.") See also 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a preexisting condition during service are not sufficient to constitute aggravation unless the underlying condition, as distinguished from the symptoms, has worsened. The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of a Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. at 320. Thus, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). This benefit-of-the-doubt rule applies if the competing evidence is nearly equal but does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Entitlement to service connection for bilateral pes planus The Veteran contends that his bilateral pes planus, which was noted during his March 1981 enlistment examination, was aggravated during service. As an initial matter, the Board observes that the Veteran's bilateral pes planus condition is clearly noted on his March 1981 enlistment physical exam report in his service treatment records (STRs). Although he had no symptoms at that time, the condition was still diagnosed or "noted" upon clinical examination. Therefore, he is not presumed to have been in sound condition upon entry into service for his bilateral flat feet. 38 C.F.R. § 3.304(b); Verdon v. Brown, 8 Vet. App. 529, 530 (1996). Because the presumption of soundness does not apply, the Veteran may only bring a claim for aggravation of his pes planus. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010). As such, he has the burden of showing a worsening of the disability in service to trigger the presumption of aggravation. Horn v. Shinseki, 25 Vet. App. 231, 235 n.6 (2012); Wagner v. Principi, 370 F.3d 1089, 1095-96 (Fed. Cir. 2004). The Board further observes that the Veteran's pes planus condition was noted as asymptomatic on his enlistment physical exam report. The Veteran was determined to have no disqualifying defects and was found to be fit for duty at that time. According to the Veteran' STRs, in May 1981, the Veteran complained about his left and right-arches; he reported his history of pes planus; and further reported he has trouble standing and running. A July 1981 examination noted marked pes planus, with a medial bulge, and assessed the Veteran with pes planus, "no relief," and further noted that the arch support was worn out. A July 1981 radiographic report of both feet showed that the routine views of the tarsals, metatarsals and phalanges indicated bilateral pes planus; however, no bony destruction or dislocations were demonstrated. Examination notes from August 1981 note the Veteran's reports of a childhood accident which appears to have caused his pes planus and later he wore arch supports. A podiatrist was asked to evaluate the Veteran and concluded that a surgical procedure is not indicated; the Veteran should respond to orthotic treatment; and orthotics will need to be adjusted and modified accordingly. April 1982 notes indicate that the Veteran had not had relief from arch supports and was requesting surgery. In May 1982, the Veteran reported intermittent periods of foot pain and decreased range of motion, but not necessarily after running. He added that his orthotics were not helping. In December 1982, the Veteran continued to present with complaints that his arch supports gave no relief, and he requested surgery. A December 1982 consultation report noted that the Veteran's feet exhibited a good range of motion. The examiner stated there is no surgical procedure which would improve foot posture without destroying function. In the Veteran's March 1983 separation examination, "Foot trouble" was marked "NO" and his health was noted as excellent. The Veteran's October 1984 examination for the Reserves had the category of "Feet" checked as normal. In the Veteran's October 1986 examination for Special Forces/Airborne school, his feet were again marked normal. An October 1991 enlistment examination for the Army National Guard noted that the Veteran's pes planus was once again asymptomatic. The Veteran's medical treatment record contains breaks and does not span the entire time from his military discharge in March 1983 to the present. The Veteran then testified at his March 2017 Board hearing that in the 1980s he started treatment for pes planus at the VA medical facility in Long Beach, California. Although the claims file contains treatment records at the Long Beach VA Medical Center as far back as July 2001, there are no records from the 1980s to 2001. The Veteran also testified to the history of his treatment for his disability and although he identified the time in which he was treated only generally as "the 80s," he did not specify the place of his treatment. In September 2016, the Veteran underwent an in-person VA examination/Disability Benefits Questionnaire (DBQ) for his pes planus, in which his 1980 diagnoses for pes planus of right and left feet were noted. The September 2016 VA clinician opined that the Veteran's pes planus, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. She explained her opinion by referring to the record, but also especially noted that the Veteran denied foot trouble in his March 1983 separation examination from active duty service; from 1983-1994 during Reserve and National Guard service the Veteran denied foot trouble including any foot pain; there were no medical restrictions in his December 1994 annual medical certificate; he had no medical consultation or treatment for a foot condition for seven years after 1994; and he had no medical consultation or treatment for a foot condition for three and a half years after December 2012. The September 2016 VA clinician further observed that the Veteran experienced an 80-pound weight gain in 22 years after leaving the military, from which she concluded that this added weight gain may contribute to foot pain. Additionally, in referring to two articles on foot functioning and injuries in the military, the September 2016 VA clinician noted that studies of military recruits have shown no evidence of later increased injury or foot problems due to flat feet, in a population of people who reach military service age without prior foot problems; however, these studies cannot be used to judge possible future damage from this condition when diagnosed at younger ages. She added that they also cannot be applied to persons whose flat feet are associated with foot symptoms or certain symptoms in other parts of the body (such as the leg or back), possibly referable to the foot. The examiner concluded that there is not sufficient material medical information to establish a nexus between the Veteran's claimed foot condition, aggravation and his military service. In light of the production of some additional medical records pertaining to the Veteran's pes planus and as directed by the Board in its August 2017 remand should additional records be found and reviewed, an addendum opinion for clarification was produced in October 2017 by the same VA clinician. The October 2017 VA clinician opined that the Veteran's pes planus, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. She provided the same rationale for her opinion as in the September 2016 opinion. Additionally, the October 2017 VA clinician specifically noted and summarized the new evidence associated with the claims file after the August 2017 remand. Nonetheless, she stated that the review of additional submitted medical documentation "does not change my original opinion [September 2016]. I respectfully stand by my original medical opinion. The Board notes that the Veteran has provided lay statements explaining that he did not consistently seek VA treatment after service because he used commercial orthotics. To the extent that the VA clinician relied on the lack of pes planus symptoms noted on the separation and subsequent periodic military examinations as clinically significant, upon further review, the Board finds that she did so without full consideration of the relevant evidence of record, see Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a VA examiner's opinion inadequate when the examiner "impermissibly ignored the appellant's lay assertions," but instead based the opinion solely on the lack of notation or treatment in service). In March 2022, the Veteran also provided a private physician's evaluation that noted that the Veteran's bilateral pes planus became symptomatic after his high impact activities during active-duty service. While the separation examination did not show a symptomatic disability, it did not negate that the Veteran's bilateral pes planus was chronic and symptomatic on overuse. The physician explained that overuse caused the flaring of his symptoms, and that these symptoms are ongoing and have been disabling since his service. The physician also noted that the VA examinations had major flaws, as they were incomplete, failed to note the exact location of the foot pain, and only utilize a history as the basis for the opinion. The private physician explained that those findings and the medical literature convinced him that the Veteran's bilateral pes planus had worsened beyond its natural progression due to his enlistment activities. The private medical opinion is probative because it is based on a review of the record and contain a clear conclusion with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). The Board further finds that such opinion together of the record is sufficient to invoke the presumption of aggravation. As a result, the remaining question is whether there is clear and unmistakable evidence to rebut the presumption. In this regard, the Court has specifically stated that clear and unmistakable evidence is such evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). As such, the Board finds that the September 2016 and October 2017 VA opinions do not rise to the level of evidence sufficient to rebut the presumption of aggravation. Consequently, the presumption of aggravation applies. 38 C.F.R. § 3.306. Accordingly, based on the foregoing, entitlement to service connection for bilateral pes planus as a preexisting disability that was aggravated by active-duty service is therefore warranted. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. § 3.306(a). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.R. Montalvo, 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.