Citation Nr: 24010318 Decision Date: 03/04/24 Archive Date: 03/04/24 DOCKET NO. 17-52 252 DATE: March 4, 2024 ORDER Entitlement to service connection for pes planus, due to aggravation of a pre-existing disability, is granted. FINDING OF FACT 1. The Veteran's pes planus was noted upon his entry into active service. 2. The Veteran experienced an increase in his pes planus while in active service, necessitating him being prescribed orthotic insoles to wear. The evidence of record does not clearly and unmistakably show that the Veteran's pes planus was not aggravated during active service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for pes planus, due to aggravation of a pre-existing disability, have been met. 38 U.S.C. § 1153; 38 U.S.C. § 3.306(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1984 to September 1999, from February 2003 to February 2005, from June 2006 to December 2006, from May 2011 to September 2011, from May 2012 to August 2012, and from January 2013 to March 2013. He also served periods of active duty for training and inactive duty for training with the United States Air Force Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the Veteran's claim for pes planus. This decision was appealed in a notice of disagreement (NOD) received by VA in May 2015. A Statement of the Case (SOC) was issued by VA in August 2017. VA received the Veteran's Substantive Appeal (Form 9) in October 2017, perfecting the appeal and requesting a hearing before the Board. The Veteran appeared before the undersigned Veterans Law Judge for a hearing in April 2021. A transcript of that hearing has been added to the record on appeal. As a preliminary matter, the Board notes that the Veteran, at his hearing, requested that the record be held open for 30 days so that he could submit additional evidence in support of his claim. In May 2021, he requested an additional 30 days, stating that the records he intended to submit were taking longer than expected to obtain. The record currently before the Board contains no indication that the Board responded to his request for an extension. Given the favorable ruling below, the Board finds no basis to further delay this longstanding appeal. 1. Entitlement to service connection for pes planus. The Veteran contends that poor quality footwear combined with rigorous training aggravated his preexisting pes planus. He asserts that the underlying condition worsened during service. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, a veteran cannot bring a claim for service connection for that disorder; rather, such veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). The Veteran's February 1984 entrance examination reveals a notation of moderate pes planus. The condition, however, was asymptomatic and he was found fit for service. On a report of medical history completed at entry, the Veteran denied having or ever having had foot problems, indicating that although pes planus was present, it had not previously caused him any functional impairment. Routine medical examinations between February 1984 and October 1995 consistently found no abnormalities with the Veteran's feet. Reports of medical history during that period similarly do not include reports from the Veteran that he had experienced any issues with his feet. In October 1995, the Veteran had his first attack of gout in his feet. It was during this process that he began having increased pain and symptoms in his feet which symptoms were attributed to his pes planus. He was issued orthotic insoles to wear in his shoes to support his arches and was placed on light duty. As the evidence of record shows that there was an increase in the severity of pes planus during service the presumption of aggravation attaches. Again, in order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. 38 C.F.R. § 3.306. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. 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. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). At a May 2014 VA examination, the clinician noted the Veteran's history with flat foot, and noted current functional impairment that included limitations on prolonged standing and walking, as well as bending, lifting, and carrying. After reviewing the Veteran's treatment records and conducting the examination, the examiner opined that the Veteran's C-file records showed that his condition had increased in severity in service and had continued to the present. This determination appears to have been based on the Veteran's having been given orthotic insoles while in active service. In a June 2014 VA addendum opinion, the clinician indicated that it was less likely than not that the Veteran's condition was aggravated by service. The clinician indicated that the Veteran's symptoms noted in service were associated with moderate pes planus. However, the Board notes that this opinion does not apply the correct standard of proof in this analysis and did not provide an adequate rationale for this opinion. As such, the Board affords it low probative weight. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (U.S. 2008) (explaining that most of the probative value of a medical opinion comes from its reasoning). The Board took testimony from the Veteran at his hearing in April 2021. He reported an onset of symptoms in service which he attributed to marching and training in unsupportive footwear. He noted that prior to service he had not had any issues with his feet, the diagnosis at his entrance examination notwithstanding. At that hearing, the Veteran reported that his feet increased in size during service, evidenced by him having to get bigger shoes as time went on. He testified that he had chronic recurring pain in his feet attributed to his flat feet. He indicated that, to this day, he still wears the orthotics which he was given in service as treatment for his pes planus. The Board finds it is within the Veteran's competency to describe his symptoms, to include their frequency, severity, and onset. Observing the Veteran's demeanor at the hearing, the Board find the Veteran credible in his reporting of his symptoms, as it appears consistent with the record and his private treatment records. As such, the Board affords his testimony significant probative weight. After a review of the evidence of record, the Board finds that, in this case, there is not clear and unmistakable evidence that there was no increase in severity or that the increase in severity was due to the natural progression of the disease. While an examiner did indicate it was not as likely as not there was aggravation in service, this is a much lower threshold than clear and unmistakable evidence. Further, the existence of the other opinion of record indicates that the issue is not necessarily undebatable, as one review of the file produced an opinion in favor of a worsening in service and one produced an opinion against. Therefore, the presumption of aggravation has not been rebutted and service connection based upon aggravation of a pre-existing disability is granted. 38 U.S.C. § 1153; 38 C.F.R. § 3.306.. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.