FLATFOOT BILATERAL ACQUIRED

KEITH W. ALLEN · 2022 · Case ID: 22066689

DENIED

Summary

The Veteran, a veteran who served from May 1988 to May 2008, appeals the denial of service connection for bilateral pes planus (flat feet), contending that his military service aggravated this pre-existing condition. The Board reviewed the evidence, including the Veteran's military entrance examination which noted asymptomatic pes planus, and his service treatment records which did not mention complaints or treatment for foot pain. The Veteran himself admitted he did not experience foot pain during service, but rather began experiencing it around 2010, two years after his service concluded. The Board found that the Veteran's service records, including his separation examination and multiple medical history reports during service, showed denials of foot trouble, contradicting his later claims of pain and aggravation. A VA examiner concluded that the pes planus was clearly noted at entrance and was not aggravated during or by service, noting the Veteran's denials of foot trouble during service. The Board found the VA examiner's opinion to be the most probative evidence, supported by the lack of contemporaneous complaints and the Veteran's own admissions. The Board also considered the Veteran's wife's statement, but found it inconsistent with the Veteran's own timeline and thus not credible. The Board concluded that clear and unmistakable evidence showed the pes planus pre-existed service and was not aggravated by it. Service connection for bilateral pes planus is denied.

Rationale

Pes planus noted at military entrance examination; No complaints or treatment for foot pain during service; Veteran admitted to no foot pain during service; VA examiner found no aggravation during service; Inconsistent lay testimony regarding onset of pain

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-58 964A

Full Decision Text

Citation Nr: 22066689
Decision Date: 11/30/22 Archive Date: 11/30/22

DOCKET NO. 17-58 964A
DATE: November 30, 2022

ORDER

Entitlement to service connection for bilateral pes planus (flat feet) is denied.

FINDING OF FACT

The Veteran's pes planus clearly and unmistakably preexisted his service and clearly and unmistakably was not aggravated during or by his service meaning not worsened at all or not worsened beyond the condition's natural progression.

CONCLUSION OF LAW

The criteria are not met for entitlement to service connection for bilateral pes planus. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 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 May 1988 to May 2008.

This appeal to this Board of Veterans' Appeals (Board) is from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ).

In November 2021, the Veteran testified in support of this claim during a hearing before the undersigned Veterans Law Judge of this Board; a transcript of the hearing is of record.

There have been three prior remands of this claim for further development initially in October 2019 and more recently in March and June 2022. The additional development directed to occur since has been accomplished, certainly the required substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271(1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

The Veteran contends that his military service aggravated his bilateral pes planus.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111.

The presumption of soundness applies only when a disease or injury not noted upon entry into service manifests in service, and a question arises as to whether the disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014).

Here, though, the Veteran's May 1988 military entrance examination "noted" pes planus although it was considered asymptomatic and, thus, not disqualifying. But this pre-existing condition was noted, nonetheless, so even when beginning his military service. See Quirin v. Shinseki, 22 Vet. App. 390 (2009).

Resolution of this claim therefore turns instead on whether the Veteran's service aggravated his pre-existing pes planus meaning worsened it beyond its natural progression. See 38 U.S.C. § 1153; 38 C.F.R. § 3.304(b); see also Crowe v
1370 (Fed. Cir. 2014).

A preexisting injury or disease will be considered to have been aggravated by active 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 progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and since service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Mere 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. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

For reasons and bases that will be discussed, the Veteran's pre-existing pes planus was not aggravated during or by his service. First, aside from his military entrance examination noting the fact that this condition predated his service, the records concerning his service spanning his 20 years of active duty, including his October 2007 separation examination report do not mention any complaints of or treatment for foot pain or other symptoms suggestive of a worsening of this condition owing to his service. Indeed, as the Board pointed out when previously remanding this claim, even he readily concedes that he did not complain about his feet while in service, much less have any relevant symptoms (e.g., pain, etc.) or receive any pertinent diagnosis. Rather, he says his foot pain started about 2 years after conclusion of his service, so in 2010 or thereabouts.

Notably, however, in June 2005 and October 2007 reports of medical history, so during his service, the Veteran indicated that he had not had any foot trouble. Thus, the evidence does not indicate a worsening of his pes planus during or because of his service. His service ended in May 2008.

Moreover, the Veteran's post-service treatment records do not show any symptoms referable to his feet until several years later in 2015 or 2016. That initial indication, some 7 years after his separation from service, resulted in X-rays due to his complaint of foot pain. But, to reiterate, during his hearing before this Board, the Veteran testified that he admittedly did not experience any foot pain in service, instead, began experiencing foot pain in 2010 so some 2 years after conclusion of his service. He indicated that he had trouble standing and that the middle of his foot kept hurting.

Medical opinions were obtained on remand in July 2020 and April 2022 concerning whether the Veteran's service aggravated his pre-existing pes planus. However, the Board determined those medical opinions were inadequate and, therefore, again remanded this claim in June 2022 for still more medical comment, i.e., another addendum opinion, to correct the failings of those prior opinions. See Barr v. Nicholson, 21 Vet. App. 303 (2007).

To this end, the Veteran had another VA examination in August 2022. He reported a lot of running, marching, and other use of his feet while in service which he believes aggravated his pre-existing pes planus. But, after reviewing the relevant evidence of record, the VA examiner contrarily concluded the Veteran's pes planus not only was clearly noted during his military entrance examination but also was not aggravated during or by his service. Regarding this determinative issue of whether there was aggravation, this VA examiner pointed out that the Veteran's Reports of Medical History in November 1994, June 2005, and October 2007 all show that he denied any history of foot trouble. If the Veteran had been having issues with his feet during his service or because of it, including suggestive of a worsening of his pre-existing pes planus, then it stands to reason that he would have reported or mentioned these issues rather than conversely specifically denying them. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).

Moreover, despite his contention of having first experienced foot pain in 2010 or thereabouts, just some 2 years after separating from service, the Veteran has not shown that he experienced continuity of symptoms following his separation from service until initial post-service indication of pes planus more recently in 2015 or 2016 which, instead, was some 7 years after his separation from service. 38 C.F.R. § 3.303(b); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred [or aggravated] in service resulting in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology following his service and had failed to account for the lengthy time following conclusion of his service during which there was no clinical documentation of his now claimed condition).

In a recent October 2022 statement, the Veteran's wife attested that, since 1989, so since the year after the Veteran's service started, she has observed his foot pain, which he usually supports with bandages and soaks in warm water to alleviate it. But this statement is in direct contradiction to the Veteran's indication that he began experiencing foot pain much more recently, in 2010, so not until some 2 years after his service had ended. And, aside from that, the VA examiner determined on remand that the Veteran's preexisting pes planus clearly and unmistakably was not aggravated during or by his service.

It is true that the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in
Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

Because of the inconsistency in the Veteran's lay testimony versus his wife's, this is not credible evidence even though competent so not ultimately probative. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Pes planus (flat feet) is the type of condition that has been identified as simple, not complex, in terms of it being capable of observation even by a layman. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). But even once beyond the competency determination, the Board must additionally determine whether the Veteran and his wife's lay testimony also is credible, since only then does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See also Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). After determining the competency and credibility of evidence, the Board must then weigh its probative value in relation to the other relevant evidence. Baldwin v. West, 13 Vet. App. 1, 8 (1999). In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The Board resultantly finds the VA examiner's medical opinion is the most probative, and therefore most persuasive, evidence and it indicates rather unequivocally that the Veteran's pre-existing pes planus was not aggravated during or by his military service. This VA examiner rendered the opinion only after comprehensively considering the relevant evidence including the Veteran's lay statements. This unfavorable medical opinion is also supported by the record, which, to reiterate, shows no complaints relating to pes planus or the feet during the Veteran's service and includes his own personal denials of any foot trouble or issues until, at the earliest, some 2 years after conclusion of his service.

The Board accords substantial probative weight to the contemporaneous medical evidence, which not only shows the Veteran's pes planus indisputably preexisted his service but also that it was not aggravated during or by his service as evidenced by him not complaining about or requiring or receiving any treatment for his feet while in service. The Board also accords substantial probative weight to his contemporaneous lay statements that tend to contradict those now being made. He specifically denied any history of foot trouble, which would include symptoms of his pes planus, in three medical histories recounted during his service.

In sum, there is clear and unmistakable evidence that the Veteran's pes planus both pre-existed his service and that it was not aggravated during or by his service. Thus, this claim is denied since the evidence does not support this claim and is
Veteran's pes planus indisputably preexisted his service but also that it was not aggravated during or by his service as evidenced by him not complaining about or requiring or receiving any treatment for his feet while in service. The Board also accords substantial probative weight to his contemporaneous lay statements that tend to contradict those now being made. He specifically denied any history of foot trouble, which would include symptoms of his pes planus, in three medical histories recounted during his service.

In sum, there is clear and unmistakable evidence that the Veteran's pes planus both pre-existed his service and that it was not aggravated during or by his service. Thus, this claim is denied since the evidence does not support this claim and is not in "approximate" (meaning nearly equal) balance. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Keith W. Allen

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Hemphill, Athena

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.

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