BVA9500950 DOCKET NO. 93-10 480 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES Entitlement to service connection for bilateral pes planus. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The appellant served on active duty from July 15, 1991, to March 13, 1992. This appeal arises from a May 1992 decision of the Department of Veterans Affairs (VA) Milwaukee, Wisconsin, Regional Office (RO), denying entitlement to service connection for bilateral pes planus and a bilateral knee disorder. CONTENTIONS OF APPELLANT ON APPEAL It is maintained by and on behalf of the veteran that he developed flat feet and a bilateral knee disorder in service, following several months of strenuous exercise. In the alternative, it is argued that if the disorders did pre-exist service, they were aggravated beyond the natural progress of the disease during his abbreviated period of service. 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 claims file. 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 the preponderance of the evidence is in favor of the claims for service connection for bilateral pes planus and for a bilateral knee disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The appellant's enlistment physical examination report includes no notations referable to bilateral pes planus or a bilateral knee disorder. Service medical records reflect complaints of bilateral foot and knee pain with treatment of pes planus. CONCLUSIONS OF LAW 1. Bilateral pes planus was incurred in military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.304(b) (1993) 2. A bilateral knee disorder was incurred in military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.304(b) (1993) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claim is well grounded, that is, it is not inherently implausible. The facts relevant to the issue on appeal have been properly developed and the statutory duty of the VA to assist the appellant in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). Factual Background Associated with the service medical records is a report from the West Allis Memorial Hospital, dated in September 1988. The report related to treatment of the veteran, at age 15, for a lesion of the left index finger. Service medical records include a Report of Medical Examination for purposes of enlistment dated August 30, 1990. Physical examination of the feet and lower extremities was normal. On January 2, 1991, the veteran was seen at a service department medical clinic complaining of pain in both feet, shins, knees and hips. He had no history of a previous injury, and the examiner noted that it did not exist prior to service. Muscle strength was 4/5 "BF and PF" with generalized muscle pain. The assessment was metatarsalgia and generalized muscle fatigue. He was given medication and placed on light duty for 7 days. When he returned to the clinic a week later, he complained of an aching pain in the lateral aspect of both feet. He had no history of earlier problems. Medication and light duty for 21 days were prescribed. When seen on January 30, 1992, he complained of bilateral arch pain of 3 months' duration. The assessment was flexible flat feet. He was referred for a medical board proceeding. A February 1992 medical board reviewed the records. They noted no history of foot pain until boot camp. Following physical examination, the diagnosis was: Pes planus, bilateral, symptomatic with military training, existed prior to service. It was recommended that the veteran be discharged from the service. He was separated from service on March 13, 1992. Received on March 17, 1992, was the veteran's application for service connection for a bilateral foot disorder. On April 6, 1992, the veteran underwent a VA medical examination. He reported that while in service, he began to have bilateral knee pain. He was sent to a podiatry clinic, where he was found to have slippage of the longitudinal arches. He was treated with arch supports and Motrin; the medication allegedly for his knee complaints. Physical examination of both feet revealed a marked flattening of the longitudinal arch, bilaterally. Examination of the patellae produced mild pain, but caudal movement of the patella produced marked pain. Range of motion of the knees was normal. X-ray examination of the feet revealed mild pes planus. Evaluation of the knees was normal. At the conclusion of the examination, the diagnoses were: Bilateral pes planus and early chondromalacia of the patella, bilaterally. In August 1992, a hearing was held before a hearing officer at the RO. The appellant testified that he entered the Marines and completed boot camp, receiving high marks. Transcript, hereinafter Tr. 2. After two weeks of guard duty, he entered advanced infantry training. Tr. 3. In January 1992, about 2½ weeks after entering advanced training, he began to have problems with his knees. He was referred to the podiatry clinic, placed on light duty and told to return a week later. His problems continued, and he was ultimately discharged. Tr. 4. Prior to his enlistment, he participated in sporting activities, including skiing. He never had problems. Tr. 6. At the time of the hearing, the appellant submitted statements dated in August 1992 from family members and friends, all indicating that prior to service, the veteran never had knee or foot problems. In August 1992, the RO requested that the case be reviewed by a Board of VA orthopaedic specialists. An October 1992 response from a VA physician stated: Medical records reviewed. It is the opinion of the Board that the veterans pes planus existed prior to service and was not aggravated beyond normal progression by service activities." The statement was signed by one physician. November and December 1992 statements from some of the veteran's friends indicate no problems with the knees or feet prior to service. Analysis Service connection is to be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §1131 (West 1991). 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 (West 1991). The veteran has maintained that he was in sound physical condition at the time of his enlistment physical examination. The record does not reflect otherwise. Approximately 5½ months after his enlistment, and during a period of advanced infantry training, he developed problems with his knees and feet. Pes Planus was diagnosed. No findings with respect to the knees were reported. Approximately 3½ weeks after his separation from service, a VA medical examination diagnosed pes planus and early chondromalacia of the patella, bilaterally. The case was later referred to a Board of VA orthopedists for an opinion as to the etiology of the pes planus. The response was that pes planus existed prior to service. No reasons or bases were provided by the physician for his two-sentence statement. The United States Court of Veterans Appeals (the Court) recently held, in Crowe v. Brown, No. 93-550 (U.S. Vet.App. Dec. 20, 1994), that the burden of proof was on the VA to rebut the presumption of soundness by producing clear and unmistakable evidence that the [disorder] existed prior to service. In the present case, we find no clear and unmistakable evidence to rebut the presumption of soundness. The Court has also held '[I]n short, a proper application of [38 U.S.C. § 1153 and 38 C.F.R. § 3.306(a), (b)]... places an onerous burden on the government to rebut the presumption of service connection and in the case of aggravation of a preexisting condition, the government must point to a specific finding that the increase in disability was due to the natural progress[ ] of the disease. Akins v. Derwinski, 1 Vet. App. 228, 232 (1991) There is no clear and convincing evidence that a bilateral knee or foot disorder existed prior to service. Therefore, burden of proof has not been met with respect to aggravation of a preexisting knee or foot disorder. Bilateral pes planus was diagnosed in service, and again in April 1992. The remaining question is whether the vague complaint of knee pain in service is indicative of the onset of bilateral patella chondromalacia in service. In this regard, given the veteran's complaints in January 1992, with the findings just weeks after separation from service in April 1992, leads one to the conclusion that, resolving doubt in the veteran's favor, bilateral patella chondromalacia had its onset in service. In conclusion, bilateral pes planus and a bilateral knee disorder began in service. 38 U.S.C.A. § 1131. ORDER Service connection for bilateral pes planus is granted. Service connection for a bilateral knee disorder is granted. RENÉE M. PELLETIER 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. 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.