Citation Nr: 0703119 Decision Date: 02/01/07 Archive Date: 02/14/07 DOCKET NO. 03-36 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD Kelli A. Kordich, Counsel INTRODUCTION The veteran served on active duty from October 1994 to October 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, VA which denied the benefit on appeal. FINDINGS OF FACT 1. Clear and unmistakable evidence shows that bilateral pes planus existed prior to entry onto active duty. 2. Clear and unmistakable evidence shows that bilateral pes planus was not aggravated by military service. CONCLUSION OF LAW Bilateral pes planus was not incurred or aggravated during the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 4.57 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., evidence of veteran status; existence of a current disability; evidence of a nexus between service and the disability; the degree of disability, and the effective date of any disability benefits. The veteran must also be notified to submit all evidence in his possession, what specific evidence he is to provide, and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in October 2002 fulfills the provisions of 38 U.S.C.A. § 5103(a) save for a failure to provide notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. The claim was readjudicated in an October 2005 supplemental statement of the case. The failure to provide notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal is harmless because the preponderance of the evidence is against the appellant's claim for service connection, and any questions as to the appropriate disability rating or effective date to be assigned are moot. Finally, VA has secured all available pertinent evidence and conducted all appropriate development. The service medical records are available and there is no pertinent evidence which is not currently part of the claims file. Hence, VA has fulfilled its duty to assist the appellant in the prosecution of his claim. Background Service medical records show a diagnosis of bilateral pes planus, mild, asymptomatic at the veteran's enlistment examination in June 1994. There is no evidence of complaints or treatment for his bilateral pes planus while in service. On his July 1998 separation Report of Medical History, the veteran denied a history of foot trouble. The veteran's July 1998 separation examination showed bilateral pes planus, asymptomatic. A January 2005 VA progress note indicated that the veteran complained of right foot pain secondary to mild bunion deformity with associated bursitis. The veteran had x-rays performed which showed some lateral deviation of hallux with dorsal medial prominence. There was also low arch morphology with some pronation during gait. The veteran reported experiencing pain along the bunion site with prolonged standing and walking. Inserts, steroid injections, and surgical intervention were discussed with the veteran. The veteran deferred injection and surgery. In June 2005, the Board remanded the issue so that the RO could review the January 2005 VA progress note because the veteran did not submit a waiver of initial review by the RO. Criteria When a veteran's condition is found to have preexisted service, either because it is noted at the time of the entry into service or because preexistence was demonstrated by clear and unmistakable evidence, the presumption of aggravation must be considered. 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 progress of the disease. Clear and unmistakable evidence is required to rebut the presumption of aggravation where pre-service disability underwent an increase in severity during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). VA General Counsel, in VAOPGCPREC 3-2003; 69 Fed. Reg. 25178 (2004), held that to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Analysis The veteran's June 1994 enlistment examination shows diagnosis of mild bilateral pes planus, asymptomatic. There is no medical evidence of treatment in service for the veteran's pes planus and his separation examination showed asymptomatic bilateral pes planus. In this case, in light of the pre-service history of bilateral pes planus the appellant did not enter active duty with sound feet and the presumption of soundness does not attach. Hence, bilateral pes planus was not incurred while on active duty. While bilateral pes planus was not incurred in-service, the Board must still consider the question of aggravation in service of the pre-existing bilateral pes planus. In this respect, while bilateral pes planus was reported on the veteran's enlistment examination, there were no complaints or treatment for pes planus in service; therefore, there is no medical evidence that the bilateral pes planus was not aggravated during service and his current condition was not causally related to service. There is no competent evidence to the contrary. The January 2005 VA progress note did not indicate that the veteran's pes planus was aggravated by service. Hence, the competent evidence clearly and unmistakably shows that the veteran's preexisting bilateral pes planus did not increase in severity during service, and was not aggravated in-service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). As such, the benefit sought on appeal must be denied. 38 U.S.C.A. §§ 1111, 1112; 38 C.F.R. § 3.304(b). ORDER Entitlement to service connection for bilateral pes planus is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs