Citation Nr: 25005453 Decision Date: 04/23/25 Archive Date: 04/23/25 DOCKET NO. 14-39 104 DATE: April 23, 2025 ORDER Entitlement to service connection for pes planus is denied. FINDING OF FACT The Veteran's?preexisting bilateral pes planus was noted on his September 1970 entrance examination, any symptoms during service were temporary or intermittent flare-ups, and to the extent there was aggravation, it was clearly and unmistakably due to the natural progression of his condition. CONCLUSION OF LAW The criteria for service connection for pes planus have not been met. 38?U.S.C. §§?1110, 1131, 5107;?38?C.F.R. §§?3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to September 1973. This matter comes before the?Board of Veterans' Appeals?(Board) on appeal from a May 2012 rating decision. The Veteran testified at a hearing before a Veterans Law Judge in February 2018, and a hearing transcript is of record. The Veterans Law Judge who conducted the hearing is unavailable to participate in a decision in this matter as he has since retired. The Veteran was notified of this fact and offered an opportunity for another hearing, but he informed VA in November 2021 that he did not want another hearing. The Board denied the claim for service connection for pes planus in February 2023, and the Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). Both parties filed a Joint Motion for Remand and moved the Court to vacate the denial and remand the matter to the Board for action consistent with the terms of the Joint Motion. The Court granted the motion in June 2024, and the Board remanded the matter to obtain an addendum medical opinion in October 2024. The Board finds that there was substantial compliance with the remand instructions as an adequate medical opinion, discussed below, was obtained. Regarding outstanding private records, in February 2022, the Veteran authorized VA to access relevant records from New Age Foot and Ankle Surgery and Ironbridge Medical Center, the dates of treatment for which began in 1996 and 1985, respectively. In May 2022, he reported to VA that the records were destroyed but he authorized VA to access these records when he filed his initial claim in 2004. The records for his 2004 surgery at Ironbridge and treatment at Commonwealth Podiatry with Dr. Effron from 2003 to 2005 are in the record. Unfortunately, the Board reviewed the previous authorizations, and the Veteran did not submit one for the New Age Foot and Ankle Surgery in 2004, and any such records are now unavailable for review. The Veteran seeks service connection for his bilateral pes planus. He testified in the February 2018 Board hearing that that he did not have any foot problems prior to service but began to experience foot pain due to his service duties, which included prolonged standing and working on his feet. He alleged that he underwent a bunionectomy between 1975 and 1980 due to his service. He also testified that he began VA treatment in 1980, but VA did not find any treatment records for him prior to 1997. Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38?U.S.C. §?1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). At the time of the service entrance examination, 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. See?38?U.S.C. §?1111. Where a disorder is noted on service entrance or a veteran is otherwise not presumed sound on entrance, 38 U.S.C. § 1153 applies. 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 preexisting disorder is noted upon entry into service, the burden falls on the veteran to prove an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi,?370 F.3d 1089, 1096?(Fed. Cir. 2004). If the Veteran shows aggravation, "the burden 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.'" Id. (quoting?38?U.S.C. §?1153). The Veteran's active duty and Reserve service treatment records are associated with the claims file and appear to be complete. Although he denied foot trouble on the report of medical history during his September 1970 entrance examination, pes planus was noted on the report. Therefore, it preexisted service, he is not entitled to the presumption of soundness, and the burden falls on the Veteran to establish aggravation. In December 1971, the Veteran complained that guard duty made him nervous and dizzy, and caused his feet to hurt. His treatment records were negative for additional complaints related to his feet, and his August 1973 separation examination was normal. The Veteran denied foot problems on an undated Reserve report of medical history as well as reports from September 1977, November 1981, January 1985, July 1985, June 1989, and August 1994. The corresponding reports of medical examination show normal foot evaluations except in June 1989, at which time the examiner documented bilateral pes planus and that the Veteran "denies anything but rare foot pain." In August 1987, the Veteran was involved in a motor vehicle accident in which he injured his right foot. His treatment records from that time do not address pes planus and an x-ray revealed a normal right foot. Post-service medical records show complaints of bilateral foot pain while standing in October 2003. He was diagnosed with hallux abducto valgus with plantar flexed metatarsal heads. The Veteran underwent bunionectomies on the first metatarsal of both feet and dorsiflexory wedge osteotomies on the fourth toes of both feet in January 2004. During pre-operation preparation, he denied a past medical history of surgery. His followup visits show he returned to full-time work in September 2004. Later records show private treatment for pes planus beginning in February 2007 and VA treatment for pes planus beginning in July 2007. After reviewing the evidence, the Board finds that the Veteran has not shown that his preexisting pes planus permanently increased in severity due to service. See 38 U.S.C. § 1153; see also Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) ("[I]t is settled that 'aggravation' for purposes of the presumption of aggravation (section 1153) requires a permanent increase in severity."). Instead, the Board finds that the evidence shows the Veteran only experienced temporary or intermittent flare-ups in service. Temporary or intermittent flare-ups during service 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 Board acknowledges that the Veteran complained in December 1971 that guard duty made his feet hurt. Similarly, while he complained of right foot pain in August 1987, it was related to a motor vehicle accident, and the records did not address pes planus. His treatment records are negative for additional complaints, and he denied foot problems on reports of medical history from September 1977, November 1981, January 1985, July 1985, June 1989, and August 1994. Critically, in June 1989, the Veteran denied all symptoms "but rare foot pain" [emphasis added] related to his pes planus, which confirms that the December 1971 and August 1987 reports were related to temporary flare-ups (and the record is unclear that the August 1987 report is related to pes planus at all). Post-service records show he sought treatment for foot pain and difficulty standing in October 2003, or thirty years after separation from active-duty service. Given the normal separation examination, his repeated denials of foot problems over 20 years other than rare pain, and the passage of time between active duty and October 2003, it is clear that he experienced temporary flare-ups only during active duty and service did not permanently aggravate his preexisting pes planus. The Board considered the Veteran's Board hearing testimony that he had regular foot pain due to his service duties and he underwent a bunionectomy between 1975 and 1980 as a result. The Board finds, however, that his testimony is contradicted by his contemporaneous statements, including those made in the reports of medical history and his June 1989 examination, which demonstrate that he consistently denied foot problems in service and reported only "rare foot pain" related to his pes planus. This includes consideration of his December 1971 and August 1987 statements, which have been discussed at length above and are evidence of temporary flare-ups. His testimony is further contradicted by his VA treatment records, which show that he underwent the bunionectomy in 2004 and that he did not undergo a previous surgery. The Board thus finds that his testimony is not credible, and the weight of the persuasive evidence shows that his condition did not permanently increase in disability in service. Because the evidence does not show that the Veteran's preexisting pes planus worsened in service, the presumption of aggravation does not apply, and service connection must be denied. Furthermore, assuming, for the sake of argument, that the Veteran's symptoms in service can be interpreted as an increase in disability, the Board finds that any increase in disability was due to the natural progression of his disease. In forming this conclusion, the Board relied on the November 2024 medical opinion in which the examiner determined the evidence clearly and unmistakably shows his condition was not aggravated beyond its natural progression. The VA examiner reviewed the Veteran's service records, including those showing pes planus foot pain, his relevant post-service records, and the November 2022 VA examination report including the Veteran's lay statements. He considered the Veteran's symptoms of intermittent foot pain that is treated with arch supports and does not otherwise necessitate the use of assistive devices, and assessed that his impairment fell within "the projected history of this condition and does not represent aggravation (beyond natural progression)." The Board finds that this medical opinion is probative because the examiner considered the Veteran's statements and relevant medical evidence, and provided a rationale grounded in facts specific to the case to support his conclusion. Again, the Board finds that the Veteran did not meet his burden of proof, and the presumption of aggravation does not apply. Regardless, the evidence does not show service aggravated his pes planus beyond the natural progression of the disease. The Board thus finds that service connection is not warranted for his bilateral pes planus, and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.