Citation Nr: 18132352
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-04 668
DATE:	September 6, 2018
ORDER
Service connection for a bilateral foot disorder with ankle pain (previously claimed as right and left ankle condition) is granted.
FINDINGS OF FACT
1.  The Veteran entered service with a pre-existing bilateral pes planus.
2.  Clear and unmistakable evidence has not been presented showing that the Veteran’s pre-existing bilateral pes planus was not aggravated by service. 

CONCLUSION OF LAW
The criteria for service connection for bilateral pes planus with associated ankle pain are met.  38 U.S.C. §§ 1101, 1110, 1111, 1153, 5107 (2012); 38 C.F.R.                     §§ 3.102, 3.303 (2017). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had active service from June 2007 to April 2012. 
This matter is before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
The Board notes that, although the Veteran filed her claim seeking service connection for a bilateral ankle disorder, she has been diagnosed with pes planus (a foot disorder).  As noted in Clemons v. Shinseki, 23 Vet. App. 1 (2009), when a claimant makes a claim, she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  The Board therefore finds that, pursuant to Clemons, the Veteran’s claim for a bilateral ankle disorder is more accurately characterized as one for a bilateral foot disorder with associated ankle pain.  Notably, the Board finds that disabilities affecting the feet and ankle often have similar symptoms.  For these reasons, the claim has been recharacterized as reflected above.

Laws and Analysis
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (a) (2017).  To establish service connection, 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.  Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 
For the purposes of § 1110 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 (2012).  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304 (b) (2017). 
The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). 
In a case where there is no preexisting condition noted upon entry into service, such as here, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service.  Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111.  This statutory provision is referred to as the “presumption of soundness.”  Horn, 25 Vet. App. at 234.  The veteran 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.  VAOPGCPREC 3-2003 (July 16, 2003). 
The government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any ‘increase in disability [was] due to the natural progress of the’ preexisting condition.”  Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153).  This burden of proof must be met by “affirmative evidence” demonstrating that there was no aggravation.  The burden is not met by finding “that the record contains insufficient evidence of aggravation.”  Horn, 25 Vet. App. at 236-37.
If the government rebuts the presumption of soundness, then the veteran is not entitled to service-connected benefits.  However, if the government fails to rebut the presumption of soundness under section 1111 by showing any of the above, the veteran’s claim is one of direct service connection.  Horn, 25 Vet. App. at 236-37; Wagner, 370 F.3d at 1096.
Prior to the application of the presumption of soundness, there must be evidence that a disease or injury - that was not noted upon entrance into service - actually manifested or was incurred in service.  Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2013).  The presumption of soundness shields the veteran from a finding that the disease or injury preexisted (and therefore was not incurred in) service by requiring VA to prove by clear and unmistakable evidence that a disease or injury manifesting in service both preexisted service and was not aggravated by service. Id. at 55. 
“Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood).
With regard to the existence of a preexisting condition, at the outset, the Veteran’s preexisting pes planus was not “noted” in the entrance examination.  In an October 2006 Report of Medical Examination, the Veteran’s feet were normal and there was no indication of a foot or ankle disorder.  As such, per the applicable statute and regulation, a bilateral foot or ankle disorder was not “noted” at entry.  Thus, an analysis of the presumption of aggravation under 38 U.S.C. § 1153 is not required; instead, the presumption of soundness under 38 U.S.C. § 1111 attaches.
That notwithstanding, with regard to the existence of a preexisting condition, the Board finds that there is clear and unmistakable evidence of record that bilateral pes planus preexisted the Veteran’s service.  See 38 U.S.C. § 1111; 38 C.F.R.                  § 3.304 (b).  Service treatment records include a November 2009 note where the Veteran complained of bilateral foot pain.  At that time, she specifically indicated that she had flat feet “her whole life” and that she was assuming that this was the cause of her pain.  In a following November 2009 note, the Veteran reported that her flat feet were “usually asymptomatic” but that she had experienced developing increasing pain over time.  The evidence also includes a March 2013 statement from Dr. Croshaw, the Veteran’s podiatrist.  The statement indicated that the Veteran had suffered symptoms and limitation with flat feet “from childhood.”  Finally, a post-service VA examination in December 2013 indicated that the Veteran had flat feet her entire life.  The Board notes a layperson is competent to diagnose conditions that are observable by the five senses, including flat feet (pes planus).  Layno v. Brown, 6 Vet. App. 465, 469 (1994); Falzone v. Brown, 8 Vet. App. 398 (1995).
In light of the above evidence of record, the Board finds there is clear and unmistakable evidence that bilateral pes planus preexisted service.  38 U.S.C.                    § 1111; 38 C.F.R. § 3.304 (b).  However, as stated above, rebutting the presumption of soundness is a two-part analysis.  The Veteran’s bilateral pes planus having been shown by clear and unmistakable evidence to preexist service, consideration must be given to whether clear and unmistakable evidence exists to show that the disorder was not aggravated during service, to fully rebut the presumption of soundness.  Id. 
Regarding aggravation, the December 2013 VA examination report indicated that the Veteran had flat feet her whole life and she was told by the military that she had to have corrective surgery prior to being allowed to be deployed.  Surgical correction was completed on both feet in approximately 2009-2010.  The Veteran deployed to Iraq and stated that the duties during deployment, in addition to extra weight from her pregnancy, “affected her feet and caused her a lot of pain.”  The December 2013 VA examiner indicated that service treatment records “confirm that the Veteran was seen several times for foot pain throughout service.”  The Veteran also reported having another surgery following service separation to “remove pins from the first surgery, remove as accessory navicular bone.” 
As noted by the December 2013 VA examiner, service treatment records do indicate complaints of foot and ankle pain during service.  In a November 2009 note, it was indicated that the Veteran had bilateral lateral arch pain “due to changes associated with pregnancy.”  The Veteran reported that her flat feet were “usually asymptomatic” but that she had experienced developing increasing pain over time.  Various active problem lists indicate “difficulty in walking involving ankle/foot.”  
In sum, there is not clear and unmistakable evidence that the pes planus was not aggravated by service.  The evidence does not meet the standard to rebut the presumption of soundness.  There is also evidence that there is a relationship between the aggravation of the pes planus and the Veteran’s current pes planus disability.  Her testimony of experiencing chronic foot and ankle problems since service is found to be competent and credible.  Service connection for bilateral pes planus with associated ankle pain is thereby granted.  38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017).

 
S. B. MAYS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Casadei, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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