BVA9503004 DOCKET NO. 90-06 709 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran served on active duty from May 1949 to November 1952. This matter came before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a June 1989 decision denying the veteran's attempt to reopen his previously denied claim of entitlement to service connection from the Waco, Texas, Regional Office (RO). The notice of disagreement was received in August 1989. The statement of the case was sent to the veteran in October 1989. The substantive appeal was received in October 1989. This matter was previously before the Board and was remanded in October 1990, August 1991, and September 1992. In January 1994, the Board determined that the June 1988 denial of service connection for bilateral pes planus was final but new and material evidence had been submitted and the claim had been reopened, and remanded the case for the RO to review all the evidence and readjudicate the claim. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that, under the presumption of soundness, he should be awarded service connection for his bilateral pes planus, as that condition was not noted on entrance into service but was noted during his separation physical examination. He argues that he first suffered foot pain in service, and continues to suffer from such pain which now includes his feet and legs, and is worse at night. He also asks that he be afforded the benefit of the doubt. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's basic claims folder. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection for bilateral pes planus is warranted. FINDINGS OF FACT 1. Bilateral pes planus was not noted on the veteran's entrance examination. 2. Bilateral pes planus, third degree, was noted on the veteran's separation examination. 3. The veteran currently has bilateral pes planus. 4. Bilateral pes planus was first manifested in service. CONCLUSION OF LAW The presumption of soundness is not rebutted, and the veteran is entitled to service connection for bilateral pes planus as it was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is appropriate for a disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1994). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects 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 thereby. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. §§ 3.303(b), 3.306 (1994). The veteran served on active duty from May 1949 to November 1952. His entrance physical examination contains no reference to foot problems. There is no mention of foot problems in his service medical records. During his separation physical examination it was noted that he had bilateral pes planus, third degree. It was also reported that his pes planus had been present since childhood and necessitated wearing arch supports. The veteran now argues that information is incorrect: he stated that he had never had foot trouble before service, although he was very active as a child, and had never worn arch supports until service. He explained that when the examiner asked him how long he had foot pain, he responded "always" but did not mean all of his life, just all of his enlistment. The veteran also testified that he had been especially bothered with his foot pain since approximately 1986, and had decided to retire early from his position in law enforcement because he feared his foot problems hindered his ability to perform his job. He added that he now works as a private process server. Although there is no documentary evidence of complaints of or treatment for foot problems among the veteran's service medical records, he testified that he first experienced foot pain in basic training, but stated it did not become severe until after he had been in service approximately six months. He testified at page 2 of his February 1990 hearing that he was given arch supports at the dispensary at Perrin Air Force Base, and that he has continued to require the use of similar supports ever since. In a statement dated in June 1989, P. M. B. reported that he was stationed with the veteran in 1950 and 1951 and recalled the veteran complaining at that time of pain in his feet, ankles and legs. In a 1991 VA examination bilateral pes planus, second degree, was noted. As set out above, veterans are presumed sound except for those defects noted on entrance or except when clear and unmistakable evidence shows a defect not noted upon entrance but detected later was present upon entrance, but was just not detected, and that such pre-existing defect was not aggravated during service. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. §§ 3.304, 3.306 (1994). In this case the evidence shows that a condition not noted upon entrance was clearly present upon separation. The evidence does not establish clearly and unmistakably that the veteran's bilateral pes planus was present before service. When all the evidence is taken into account, the Board finds that the presumption of soundness applies to the veteran's bilateral pes planus, and the presumption has not been rebutted. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. §§ 3.304, 3.306 (1994). Accordingly, service connection for bilateral pes planus is granted as it was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1994). ORDER The appeal is granted. E. M. KRENZER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.