BVA9506252 DOCKET NO. 93-12 467 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for flat feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas C. Taylor, Associate Counsel INTRODUCTION The veteran served on active duty from August 1990 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 1992 decision by the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for a bilateral knee disability and flat feet. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he had a bilateral knee disability and flat feet before entering service, and that those conditions were aggravated by his military 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 evidence supports the claim of service connection for a bilateral knee disability, but is against the claim of service connection for flat feet. FINDINGS OF FACT 1. The veteran's bilateral knee disability preexisted his entry into the military service. 2. Symptoms of the veteran's bilateral knee disability increased in severity during his period of service. 3. The veteran's flat feet were clinically noted prior to entry into the service. 4. The veteran's flat feet underwent no increase in severity during his period of service. CONCLUSIONS OF LAW 1. The veteran's bilateral knee disability was aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1994). 2. The veteran's flat feet (pes planus) preexisted active military service and were not aggravated therein. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question in all cases is whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). Boeck v. Brown, 6 Vet.App. 14, 17 (1993). A well-grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Foremost, there must be evidence of a current disability. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Furthermore, there must be more than a mere allegation; the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required. Medical evidence, however, must be more than speculative. Tirpak, 2 Vet.App. at 611. Any adjudication on the merits of a claim which is not well grounded would constitute error. Grivois v. Brown, 6 Vet.App. 136 (1994). The veteran's pre-service entrance examination report, dated in December 1989, noted that the veteran had moderate pes planus and swelling of both knees. The veteran testified before the undersigned at the RO in November 1993 that both conditions had increased in severity during his period of service, as a consequence of the physical demands of military service. The veteran was honorably discharged from the service, upon recommendation from a medical evaluation board for recurrent bilateral knee effusions of unknown etiology. Thus, the Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107. See King v. Brown, 5 Vet.App. 19 (1993). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred during service. Watson v. Brown, 4 Vet.App. 309, 314 (1993). See also 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304 (1994). This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. If the disability pre- existed service, the evidence must show that the underlying disability increased in severity during service. 38 C.F.R.§ 3.306. Also, a disease which is diagnosed after service discharge may be considered to be service connected if an event or exposure during service subsequently results in disability or death. VA O.G.C. Prec. Op. 2-93 (January 13, 1993). Each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of service as shown by service records, the official history of each organization in which he served, his service medical records, and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). In evaluating the evidence to establish service connection, however, the greatest weight is accorded to the clinical evidence prepared during or closely proximate to service. Cf. Biggins v. Derwinski, 1 Vet.App. 474, 476 (1991) (favorable decision quoting from Board decision). Aggravation of a disability will be conceded if a disability increased in severity during service, unless there is a specific finding that the increase in the severity of the disability is due to the natural progress of the disease. 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 C.F.R. § 3.306(b) (1993). A temporary worsening of symptoms of a disability subject to exacerbation is not indicative of an increase in the severity of the underlying disability. Hunt v. Derwinski, 1 Vet.App. 292, 296 (1991). The record contains a pre-service entrance medical examination report, dated in December 1989, which reveals abnormalities on clinical evaluation of the veteran's feet and lower extremities. The examiner noted moderate pes planus, no arch and asymptomatic, as well as swelling of both knees. The orthopedic examiner further observed no abnormal finding except for "puffiness" of the knees with no radiological, clinical or functional evidence of disease. The veteran's service medical records are replete with references of increasing symptoms of a knee disability, dating from February 1991. References to his flat feet are noticeably lacking, except for a reference that he had a history of "low arches" and wore orthotics. His symptoms of a knee disability increased to the point that a medical evaluation board in 1992 recommended him for physical disability discharge due to his bilateral knee disability. The record contains the medical board examination report, dated in March 1992, which revealed no abnormality on clinical evaluation of the veteran's feet, but does note abnormality of his knees. The report remarks "The patient stated that his knees were the only joints affected and excessive physical activity and standing in place for a prolong period of time greatly aggravated his knee pain and swelling." The report is completely devoid of any reference to a foot disorder. The medical history portion of that report also contained a section which asked: "HAVE YOU EVER HAD OR HAVE YOU NOW (Place check at left of each item)." The veteran checked "YES" to "Arthritis, Rheumatism, or Bursitis," but checked "NO" to "Bone, joint or other deformity," "Lameness," " 'Trick' or locked knee," and "Foot trouble." The Medical Board Evaluation Board Proceedings report, dated in April 1992, diagnosed the veteran with recurrent bilateral knee effusions of unknown etiology and indicated that he incurred the condition while entitled to base pay. Again, there was no reference to a foot disorder. The record also contains the veteran's medical discharge examination report, dated in September 1992. The examiner recorded, in the clinical evaluation portion of the report, that the veteran had mild to moderate pes planus and that he wore orthotics. The veteran underwent a VA medical evaluation in October 1992. The musculoskeletal portion of that examination report reveals that the veteran's knees were bilaterally symmetrical without edema. There was no obvious instability. The veteran could heel walk, toe walk, and squat without difficulty. There was no crepitus or popping. There were no comments as to the veteran's flat feet. The examiner diagnosed effusion of both knees. An accompanying radiological report noted apparent bilateral effusion and early chondromalacia, but identified no other significant abnormalities. At his hearing in November of 1993, the veteran testified to the increase in his knee disability during service. His testimony was congruent with the then contemporaneous medical records. The veteran also testified that he had "low arches" prior to service, but did not use arch supports until after his entrance into service. He testified that he felt a difference in his feet between before his entrance into service and after service. He also testified that he had foot pain, but he did not get sores or blisters, his toes were still the same. He indicated that he had never told VA examiners about any foot problem. The Board affords great weight to the medical findings contemporaneous with the veteran's service, especially the medical evaluation board's recommendation that the veteran's knee effusion had become so severe after two years of service as to make him unfit for such service, warranting his discharge therefrom. The Board finds that record supports a finding that the veteran's bilateral knee disability increased in severity during service, as early chondromalacia of the knees was evident on post-service, VA X-ray films. The record contains no information upon which the Board could find that the increase in the severity of the disability was due to the natural progress of the disease. Consequently, service connection for the veteran's bilateral knee disorder by way of aggravation is warranted in this case. As to the veteran's pes planus, the Board finds that the objective medical evidence is of greater probative value in assessing the impairment present in this case than the anecdotal evidence provided by the veteran. The examiner noted upon the veteran's entrance into service that his flat feet were "moderate." The veteran was issued orthotics while on active duty, but upon his discharge, the examiner characterized the veteran's flat feet as "mild to moderate." The veteran expressed no complaints concerning his feet at a subsequent VA medical examination. On the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service, the Board finds no competent medical evidence to support the veteran's contention that the flat feet underwent any increase in severity during service. In light of the above, the Board finds that the weight of the evidence is clearly against the claim of entitlement to service connection based on aggravation of the veteran's preexisting flat feet, and that therefore the benefit of the doubt doctrine is not applicable in this case. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a bilateral knee disability is granted. Entitlement to service connection for flat feet is denied. J. F. GOUGH 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.