Citation Nr: 0710970 Decision Date: 04/13/07 Archive Date: 04/25/07 DOCKET NO. 04-13 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for bunions. 3. Entitlement to service connection for degenerative joint disease of both feet. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. L. Wight, Counsel INTRODUCTION The veteran served on active duty from September 1974 to February 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision rendered by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. Pes planus was noted on the veteran's service enlistment examination. 2. There is clear and unmistakable evidence that the veteran's pes planus did not increase in severity beyond is natural progression during the veteran's active service. 3. Bunions were not manifest during service and are not attributable to service. 4. Degenerative joint disease of the feet was not manifest during service or within one year of separation from service. CONCLUSIONS OF LAW 1. Bilateral pes planus, which pre-existed the veteran's period of active service, was not aggravated therein. 38 U.S.C.A. §§ 1131, 1137, 1153 (West 1991); 38 C.F.R. §§ 3.304, 3.306 (2006). 2. Bunions were not incurred in or aggravated by the veteran's period of active service. 38 U.S.C.A. §§ 1131, 1137, 1153 (West 1991); 38 C.F.R. §§ 3.304, 3.306 (2006). 3. Degenerative joint disease of the feet was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1131, 1137, 1153 (West 1991); 38 C.F.R. §§ 3.304, 3.306, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the veteran, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency attempted to provide the veteran with the notice required under the VCAA by letter dated in January 2003 prior to the initial adjudication of the claim. Due to deficiencies in that notice, an additional letter containing the required notice was furnished to the veteran in September 2003. Although the originating agency has not specifically requested the veteran to submit all pertinent evidence in his possession, it has informed him of the evidence that would be pertinent and requested him to submit such evidence. Therefore, the Board believes that the veteran was on notice of the fact that he should submit any pertinent evidence in his possession. The veteran was provided ample time to submit or identify pertinent evidence after notice was provided. In March 2006, the veteran was provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. See Dingess, supra. The Board also notes that VA has obtained the veteran's service medical records and post-service VA treatment records. The veteran has not identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Following the completion of all indicated development of the record, the originating agency readjudicated the veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2006). Service connection may also be granted for arthritis when it is manifested to a compensable degree within one year following discharge from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 38 C.F.R. §§ 3.307, 3.309. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or were clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096-97 (Fed. Cir. 2004) (The burden falls on the government to rebut the presumption of soundness.) Essentially, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, 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. VAOPGCPREC 3-2003 (July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003) (detailing legislative history relating to presumption of soundness and the possibility that the omission of the relevant language from 38 C.F.R. § 3.304(b) was unintentional and that 38 C.F.R. § 3.304(b) should be construed as consistent with the VA's pre-February 1961 regulations). Specifically, VAOPGCPREC 3-2003 held that 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. It was determined that the provisions of 38 C.F.R. § 3.304(b) are inconsistent with 38 U.S.C.A. § 1111 insofar as § 3.304(b) states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. It was concluded that 38 C.F.R. § 3.304(b) is invalid and should not be followed. Regarding the provisions of 38 C.F.R. § 3.306(b), providing that aggravation may not be conceded unless the pre-existing condition increased in severity during service, it was determined that this properly implements 38 U.S.C.A. § 1153, which provides that a pre-existing injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C.A. § 1153, and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C.A. § 1111. 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. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progression of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2006). Moreover, "temporary or intermittent flare-ups of a pre- existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Nonetheless, silence of the record on this point may not be taken as indication of no aggravation, an opinion must be provided. See Verdon v. Brown, 8 Vet. App. 529 (1996); Wisch v. Brown, 8 Vet. App. 139 (1995). Further, such medical questions must be addressed by medical experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis In the instant case, there has been no assertion of combat. Thus, the provisions of 38 U.S.C.A. § 1154(b) (West 2002); § 3.304(f) are not applicable. The veteran's August 1974 enlistment examination report shows a notation of second degree pes planus. Subsequent service medical records are silent for any complaints, treatment, and diagnosis pertaining to the veteran's feet. Three days prior to his discharge in February 1975, the veteran was afforded a separation examination. At that time physical examination of his feet was within normal limits. Post service VA medical records dated from October 2002, show that the veteran has been treated for several problems with his feet including pes planus, bunions, hammer toes, and degenerative joint disease. In connection with his claim, the veteran was afforded a VA compensation and pension examination in April 2003. The examiner reviewed the veteran's claims folder and found no evidence of treatment for any foot problems during active duty. Current diagnoses of bilateral pes planus and bilateral bunions were rendered. The veteran asserts that his pes planus with bunions was worsened by his period of active duty and continued to be a problem for him. Having reviewed the record, the Board has concluded that the preponderance of the evidence weighs against a grant of service connection for bilateral pes planus with bunions and degenerative joint disease. Pes planus was noted on the enlistment examination report as an abnormality of the feet. Thus, the record includes competent evidence which clearly and unmistakably shows that pes planus pre-existed the period of active service, and the presumption of soundness is not applicable with regard to the veteran's feet. 38 C.F.R. § 3.304 (2006); see also Bagby v. Derwinski, 1 Vet.App. 225 (1991). As pes planus has been shown to have existed prior to the veteran's induction into active duty, the Board must next address whether this disability increased in severity or was aggravated during the period of active service. As noted, 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; see also 38 C.F.R. § 3.306(a) (2006). The Board has carefully reviewed the evidence of record, taking into account the manifestations of the disability that were recorded prior to, during and subsequent to service, as required by 38 C.F.R. § 3.306(b), and it is found that there is no basis to conclude that the pre-existing bilateral pes planus was aggravated by the period of active service. The threshold questions are: 1) was there an increase in the veteran's pre-existing pes planus when he served on military duty, and 2) if an increase is shown, was it due to the natural progression of the disease. Based on the evidence below, the Board finds that the veteran's disorder did not undergo a permanent increase during military service. First, as noted above, active service medical records do not show complaints of, treatment for, or a diagnosis of pes planus or any other foot disability. Moreover, while pes planus was noted at entry into active duty, physical examination of his feet at the time of his service separation examination were negative. This evidence is clear and unmistakable that the veteran had no increase of his pre- existing pes planus while on active duty. Next, there is a lack of documented postservice treatment for foot problems for over 25 years after the veteran's military discharge. This weighs strongly against a finding of a permanent increase in the veteran's pre-service pes planus disorder while he was on active duty. The Board finds the multi-year gap between service separation and post-service symptomatology, without competent intervening evidence of complaints or treatment for pes planus or any other foot disorder, an indication that there was no in-service increase in the veteran's pre-service pes planus. In sum, the evidence shows that the veteran was noted to have pes planus at the time of his entry into active duty, but had no complaints of foot problems while on active duty. Moreover, examination at service discharge revealed normal feet. He did not experience episodes of foot problem for years after military discharge. Cumulatively, there is clear and unmistakable evidence that there had been no aggravation of the veteran's pes planus during service. The Board has also considered the veteran's own assertions that his pes planus worsened during military service. His assertions are not deemed to be persuasive in light of the other objective evidence of record showing no permanent increase in severity during service and no indications of worsening symptoms. In regard to the veteran's bunions and degenerative arthritis, there is no competent evidence that such disabilities preexisted service. In addition, there is no competent evidence of the disabilities during service, in proximity to separation or within one year of separation from service. Furthermore, there is no competent evidence linking the bunions or generative arthritis of the feet to service. Based upon such evidence, the Board concludes that bunions and generative arthritis were not incurred in or aggravated by service and degenerative joint disease may not be presumed to have been incurred therein. ORDER Service connection for bilateral pes planus with bunions and degenerative joint disease is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs