Citation Nr: A25051549 Decision Date: 06/11/25 Archive Date: 06/11/25 DOCKET NO. 220302-224664 DATE: June 11, 2025 ORDER Entitlement to service connection for bilateral pes planus is denied. FINDING OF FACT The probative evidence does not show that the Veteran's pre-existing bilateral pes planus was aggravated beyond its natural progression during service or due to service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus (flat feet) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from June 1976 to August 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2022 rating decision by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In the March 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the February 2022 AOJ decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. The Board notes that evidence was added to the claims file after the February 2022 rating decision that the Board cannot consider, and that the Veteran did not submit any evidence with the March 2022 VA Form 10182 or during the subsequent 90-day evidentiary window. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. VA regulations provide that, "[u]pon request, a claimant is entitled to a hearing on any issue involved in a claim . . . before VA issues notice of a decision on an initial or supplemental claim." 38 C.F.R. § 3.103(d)(1). That regulation does not indicate that the claimant is entitled to pre-decisional notice of this optional hearing. In fact, 38 C.F.R. § 3.103(b)(1) provides that, following a decision, "[c]laimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief . . . [including] the right to a hearing on any issue involved in the claim as provided in paragraph (d) of this section ...." Read together with § 3.103(d), the only notice § 3.103(b) requires is that a claimant be provided notice of the right for a hearing with notification of the decision (by definition, a post-decisional notice). In November 2022, VA amended VA Form 21-526EZ and in May 2024 VA amended VA Form 20-0995 to inform claimants of the right to a hearing at any time during the claims process. The Veteran's Supplemental Claim in this appeal was filed in September 2021, prior to the amended version. However, the Board finds that any error in the failure to inform the Veteran of the right to a pre-decisional hearing before the Regional Office (RO) was harmless error. In Bowen, the Court found that when a claimant is denied a hearing before the RO, there is no due process violation if he is subsequently offered the opportunity for a hearing before the Board, even if a hearing was not requested or conducted, as long as there is no violation of due process concerning the Board hearing opportunity. Bowen v. Shinseki, 25 Vet. App. 250, 253-4 (2012). The facts in the case can be differentiated on several levels, to include that the Veteran did not actually request an RO hearing and the issue in Bowen was not one of notice. Regardless, the Board cannot find a basis to conclude that the underlying holding and logic of the Bowen case would not lead to the same finding of no prejudicial error under the procedure and facts of this case. The February 17, 2022 notification letter informing the Veteran of the February 2022 rating decision included a VA Form 20-0998, Your Right to Seek Review of Our Decision, outlining the Veteran's appeal options, to include a hearing before the Board. Additionally, in the March 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran was provided with an option to request a hearing with a Veterans Law Judge. The Veteran instead selected the docket for evidence submission to be reviewed by a Veterans Law Judge, and the form explicitly states that by choosing this option, the Veteran does not want a Board hearing. Because the Veteran was provided with notice of the right to appeal to the Board, as well as the right to a Board hearing, there was no due process violation in the processing of the claim or any suggestion that the Veteran/appellant was prejudiced by the failure of VA to provide a hearing at the RO level. See Bowen. Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). A pre-existing 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; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). 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, the veteran cannot bring a claim for service connection for that disorder, but the 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. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 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 has asserted that his pre-existing bilateral pes planus (flat feet) was aggravated by active service. The Veteran's enlistment examination noted asymptomatic pes planus, although he reported having no foot trouble. An evaluating physician noted that the Veteran had asymptomatic flat feet, and generally no significant defects. August 1976 treatment records show a complaint of callus to right heel for two months. In a July 1980 Report of Medical Examination for separation, an evaluating physician noted a finding of bilateral pes planus, and that the Veteran reported occasional left foot pain. The Veteran's enlistment examination noted asymptomatic pes planus. As the Veteran's pes planus was noted on his enlistment examination, while the Veteran is not presumed sound with respect to this disability, the presumption of aggravation under 38 U.S.C § 1153 is for application. If a review of the evidence reveals worsening of the condition in service, aggravation is presumed to have occurred unless the evidence shows no worsening of the condition or that any increase in the severity of the preexisting condition was due to natural progression. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The Veteran was afforded a VA examination in August 2017. The examiner provided a diagnosis of flat foot (pes planus). The Veteran reported that the onset of his symptoms was August 1976. He reported that after boot camp he began to have problems with his feet, described as burning pain, and that his symptoms have remained the same since then. The examiner opined that the claimed condition was less likely than not incurred in or caused by an in-service injury or event, noting that the Veteran had flat feet when he enlisted. The examiner could not opine whether there was an aggravation. In a September 2020 letter, the Veteran's private treating podiatrist, Dr. B.M., stated that the Veteran had an acquired flat foot deformity that continued in its progression. He stated that flat feet tend to progress without proper stabilization. The physician stated that he was aware of the Veteran's military service and the wear and tear placed upon his feet in boots without added pronation support. The physician concluded that his feet have not encountered the same toll since discharge. The physician opined that his time in the service caused progression of his symptomatic flat foot deformity. The Veteran was afforded a VA examination in January 2021 where he reported a history of flat feet with no issues before service. He reported the onset of foot pain during service and being seen in sick call due to pain on several occasions. The examiner opined that the condition was less likely than not incurred in or caused by an in-service injury or event. The examiner noted that the diagnosis of flat feet (pes planus) was noted in the entrance and exit examinations. He noted that the Veteran had symptoms associated with flat feet in service where he was seen for foot pain/calluses and that he started seeing a podiatrist in 2018. The examiner stated that the Veteran had significant deformity of flat feet and that it was possible that the condition was aggravated during military service. The examiner referenced medical literature that indicated flat feet is a chronic progressive deformity where biomechanics and weight bearing activities increases strain, causing pain and decrease in functionality. The examiner further opined that temporary aggravation of the Veteran's bilateral pes planus was plausible, but that there was no evidence of a permanent aggravation of the pre-existing condition. The examiner noted that a review of medical literature failed to support that the pre-existing condition was permanently aggravated by service. She stated that there was a lack of sufficient objective medical evidence in the available medical records that confirmed a permanent aggravation beyond normal progression. A private medical opinion from a physician's assistant was submitted in September 2021. Upon review of the Veteran's claims file and interview of the Veteran, the practitioner opined that it was at least as likely as not that the Veteran's flat feet condition was permanently aggravated beyond its natural progression by his military service. The Veteran reported that he complained of foot pain in 1976 and was told to "be a Marine and stop whining." Consequently, he self-treated with over-the-counter medication. The Veteran reported that in approximately 1977 or 1978 he felt that he was walking "funny," and was not provided with arch support. He stated that the report of occasional left foot pain at separation was a clear indication that the pre-existing flat feet condition increased in severity and was aggravated by service. The practitioner noted that military service required a great deal of physical training, and particularly for the Veteran as a combat engineer. The practitioner noted that continuous stresses on the feet cause dysfunction to the arch complex of the foot, which does not allow the normal arch functions of dissipation of forces of weight-bearing and mechanical energy which can cause increase pain and injury. The practitioner referenced supporting medical literature. The Veteran had a February 2022 VA examination. The Veteran reported that he was diagnosed with bilateral flat feet as a child; his condition gradually progressed with age after military service, and he began seeing a podiatrist in 2018. The examiner conducted an in-person physical examination and reviewed the claims file. The examiner opined that the Veteran's bilateral pes planus clearly and unmistakenly existed prior to service and was not aggravated beyond its natural progression by an in-service injury or event. The examiner noted that there is evidence that the Veteran continued to suffer from the disorder during service, which is typical for this condition. The examiner opined that the progression of the condition was not beyond normal progression. The examiner referenced supporting medical literature and noted that feet may change elasticity with aging and become less tight resulting in increased width and sagging of the arches. The examiner opined that there was insufficient objective medical evidence in medical records confirming permanent aggravation beyond normal progression. The Veteran is competent to report his symptoms of foot pain beginning in service and worsening thereafter. Lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. However, the Veteran is not competent to render a medical opinion addressing the question whether his pre-existing bilateral flat foot condition worsened during service or whether any worsening was beyond its natural progression. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase, permanent in nature, in the disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993). In explaining the meaning of an increase in disability, the Court has held 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." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare-ups is not evidence of an increase in disability). The Board finds that service connection for bilateral pes planus is not warranted. Unquestionably, the Veteran had bilateral pes planus prior to service. The evidence does not show any measured permanent worsening of the disability during service. The Veteran's complaint of occasional left foot pain at separation is in the nature of a temporary flare-up and not considered aggravation in service. Davis, above. Following service, the Veteran sought medical care beginning in 2018, thirty-eight years after separation. The probative medical evidence does not show that the Veteran's pes planus condition was worsened beyond natural progression. A September 2020 letter was submitted from the Veteran's treating podiatrist. The podiatrist did not opine that the Veteran's condition was permanently aggravated by service or aggravated beyond its natural progression due to service. He stated that the Veteran's feet have not encountered the same "toll" since service but did not explain how he reached that conclusion and did not discuss the toll on his feet in the thirty-eight years since service. The private podiatrist's letter has low probative value. The September 2021 private practitioner opined that it was at least as likely as not that the Veteran's flat feet condition was permanently aggravated beyond its natural progression by his military service. The practitioner concluded that the report of occasional left foot pain at separation was a clear indication that the pre-existing flat feet condition increased in severity and was aggravated by service. However, the practitioner did not address the lack of any complaint at separation for the right foot or discuss and describe what was the natural progression for flat feet and how that differed due to the Veteran's service. The January 2021 VA examiner opined that although a temporary aggravation during service was possible, there was no evidence of a permanent aggravation of the pre-existing condition, and insufficient evidence to support a finding of a permanent aggravation beyond normal progression. The February 2022 VA examiner also opined that there was insufficient objective medical evidence to confirm aggravation beyond normal progression and discussed the expected natural progression of this condition. The examination reports are probative because the examiners reviewed the Veteran's claims file, conducted physical examinations, considered the Veteran's lay evidence, and provided medical conclusions supported by sufficient rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board gives more probative weight to these VA examination reports than the reports of the private practitioner or treating podiatrist, since the VA examiners explained why the evidence failed to show a permanent aggravation in service. The VA examiners also discussed that pes planus is a chronic progressive condition and why the evidence was insufficient to show that the Veteran's condition worsened beyond normal or natural progression due to service. In sum, the Board finds that the evidence of record clearly and unmistakably shows no worsening of the pes planus condition in service or permanent aggravation beyond natural progression of the condition due to service. The claim for service connection for bilateral pes planus is denied. The evidence is not in approximate balance and not 'nearly equal'; therefore, the benefit of the doubt rule has no application. There are differing medical opinions, which does not mean the evidence is equal, and the Board has discussed above why some opinions are more persuasive than others. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lawrence Hubert 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.