Citation Nr: 24011995 Decision Date: 03/14/24 Archive Date: 03/14/24 DOCKET NO. 17-47 299 DATE: March 14, 2024 ORDER Entitlement to service connection for aggravation of preexisting bilateral flat feet is denied. FINDINGS OF FACT 1. The competent and probative evidence warrants a finding that the Veteran's bilateral flat feet pre-existed each distinct period of active service. 2. The competent and probative evidence is persuasively against finding that preexisting bilateral flat feet increased in severity from November 1976 to November 1979, from January 2003 to December 2003, from October 2006 to September 2008, or from November 2008 to February 2013. CONCLUSION OF LAW The criteria for entitlement to service connection for aggravation of preexisting bilateral flat feet are not met during any period of active service. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1131, 1137, 1153, 5107; 38 C.F.R. § 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1976 to November 1979, from January 2003 to December 2003, from October 2006 to September 2008, and from November 2008 to February 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board in January 2021. A copy of the hearing transcript is associated with the claims file. In a November 2022 decision, the Board denied entitlement to service connection for aggravation of preexisting bilateral flat feet. The Veteran appealed the denial of benefits to the Unites States Court of Appeals for Veterans Claims (Court). In an October 2023 Order, the Court granted a Joint Motion for Remand (JMPR) vacating the November 2022 decision and remanding the matter for readjudication. This matter was previously before the Board and remanded for additional development in February 2019, April 2022, and December 2023. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for aggravation of preexisting bilateral flat feet The Veteran contends that service connection is warranted for flat feet due to the rigors of service, to include running and wearing combat boots. He asserts that service connection for flat feet should be granted due to aggravation. See January 2, 2021, Hearing Transcript. Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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. 38 U.S.C. § 1111. This presumption of soundness does not attach where a disability is noted at the entrance to service. See 38 C.F.R. §3.304. The term "noted" denotes "[o]nly such conditions as are recorded in examination reports and." See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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. If a condition is noted upon entrance into service, in order to establish entitlement to compensation benefits, the burden falls on the veteran to show an increase in disability in service. 38 U.S.C. § 1153; Wagner, 370 F.3d at 1096. If the veteran satisfies this burden, the preexisting condition will be presumed to have been aggravated by service. Wagner, 370 F.3d at 1096. The question of whether a preexisting defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches." Verdon v. Brown, 8 Vet. App. 529, 538 (1996); see also Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (holding "that 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"). The burden falls on the government to rebut the presumption of aggravation by clear and unmistakable evidence that the demonstrated increase in disability was the result of the natural progress of the condition. Wagner, 370 F.3d at 1096. A medical opinion was obtained in May 2022. The examiner opined bilateral flat feet, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progress by an in-service injury, event, or illness. More important, the examiner opined that there was no permanent in-service increase of disability for bilateral flat feet. He found the documented complaints of foot pain in December 1976 and February 2003 representative of temporary aggravation that responded to treatment rendered, to include the use of insoles. These episodes represented symptoms only with no architectural changes. The examiner found no other evidence of flat feet or any other foot condition in service and noted the Veteran reported the onset of new foot problems as occurring in 2015 or 2016. He highlighted the fact that the Veteran served through 1979 and then through the end of 2003 without evidence of ongoing foot complaints and was accepted as whole (asymptomatic flat feet) in 2006, 2008, and 2012. Because the Veteran had multiple periods of active service, to include from November 1976 to November 1979, from January 2003 to December 2003, from October 2006 to September 2008, and from November 2008 to February 2013, new medical opinions were obtained in January 2024 to assist the Board in determining whether the presumption of soundness attached to any of the Veteran's distinct periods of active service pursuant to the terms of the JMR. The January 2024 examiner noted that the Veteran was diagnosed with bilateral flat feet in or around July 1976. The examiner was asked a series of questions for each distinct period of active service. He first opined that the Veteran's flat feet noted on his 1976 entrance examination did not resolve prior to any subsequent period of active service and reasoned that flat feet do not spontaneously resolve. He further explained that flat feet in adults tends to be permanent and non-reversible; however, it is not always a painful condition. The examiner referred to medical research indicating that "[d]ysfunction of the arch complex is usually asymptomatic but can alter the biomechanics of the lower limbs and lumbar spine causing an increased risk of pain and injury." For each distinct period of active service, to include from November 1976 to November 1979, from January 2003 to December 2003, from October 2006 to September 2008, and from November 2008 to February 2013, the examiner next opined that the Veteran's flat feet clearly and unmistakably existed prior to each distinct period of active service as it was noted in 1976 and did not resolve prior to any subsequent period of active service. Further, the examiner opined that the Veteran's flat feet were clearly and unmistakably not aggravated during any distinct period of active service. In an addendum opinion, the examiner reasoned that given a review of all medical evidence and considering the lay testimony of the Veteran and W.B.G. regarding the Veteran's foot pain during active duty, there is no evidence that the claimed condition worsened other than plausible temporary aggravation during active duty. The examiner concluded that the symptoms during active duty were consistent with the pre-existing condition but did not rise to the level of permanent aggravation during active duty. The Board acknowledges the Veteran's designation as a Persian Gulf Veteran. The January 2024 examiner opined that the Veteran's bilateral flat feet are less likely as not caused by the Veteran's indicated toxic exposure risk activity. He reasoned that the Veteran's bilateral flat feet pre-existed entrance into active duty, as evidenced by the cited documentation in the claims file. Further, as the Veteran is African American, statistically he is at higher risk for the condition and research also supports a strong genetic component in that it typically runs in families. After reviewing the medical and lay evidence of record, the Board finds that the Veteran here is not entitled to the presumption of soundness for any period of active service. In this case, the July 1976 entrance examination noted that the Veteran had bilateral flat feet. Bilateral flat feet did not resolve and pre-existed each subsequent period of active duty. While the Veteran testified at his January 2021 Board hearing that he did not have flat feet prior to service and that the examiner did not make him aware that he had flat feet, the Veteran does not have the medical training or expertise to make a medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Finding that the presumption of soundness does not apply to any of the Veteran's distinct periods of active service, the Veteran is entitled to service connection for bilateral flat feet only if there is evidence of in-service worsening of his flat feet and there is not clear and unmistakable evidence that the worsening was due to the natural progress of the disability. See 38 C.F.R. § 3.304. In that regard, the Board finds that the Veteran has not met his burden of showing an increase in disability in service. Therefore, the presumption of aggravation under 38 C.F.R. § 3.306 does not attach and for purposes of this appeal, that ends the inquiry. In reaching its conclusions, the Board finds the May 2022 and January 2024 opinions to be highly probative because they are based on consideration of relevant medical evidence, consideration of lay statements, and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, there is no competent medical evidence contradicting the May 2022 and January 2024 medical opinions. The Board acknowledges the Veteran's hearing testimony and other lay statements regarding his bilateral flat feet. While competent to describe his symptoms, the Board finds that the Veteran is not competent to opine on whether there was a permanent in-service increase of his bilateral flat feet. That is a complex question outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for aggravation of preexisting bilateral flat feet is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B Jackson, M. 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.