Citation Nr: 1301563 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-38 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for left foot plantar fasciitis. 4. Entitlement to service connection for a lumbar spine disability. 5. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from February 1994 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the October 2009 rating decision on appeal, the RO also denied service connection for bilateral pes planus and right plantar fasciitis. The Veteran submitted a notice of disagreement on these two issues. However, following the issuance of the August 2010 statement of the case, the Veteran limited his appeal to left foot plantar fasciitis. See VA Form 9, Appeal to the Board, received in September 2010. Thus, that is the only foot disability on appeal. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. The issues of entitlement to service connection for lumbar spine and cervical spine disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has sinusitis. 2. The preponderance of the evidence is against a finding that the Veteran has a left ankle disability. 3. The preponderance of the evidence is against a finding that the Veteran has left plantar fasciitis, and there is a lack of credible evidence of a nexus between any claimed current left foot disability and service. CONCLUSIONS OF LAW 1. Sinusitis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. A left ankle disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. Left foot plantar fasciitis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court of Appeals for Veterans Claims has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with VCAA notice with regard to his claims for service connection in a September 2009 letter. This letter informed him of what evidence VA would obtain, what evidence he was expected to provide, and of what assistance VA could provide in obtaining evidence. This letter provided proper preadjudication notice in accordance with Pelegrini and Dingess. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of his claims. The Veteran's service treatment records have been obtained, and the Veteran submitted private treatment records. VA also provided the Veteran with VA examinations in June 2010 (for all three disabilities) and November 2011 (for the left foot disability). The Board finds that the examiners addressed the necessary clinical findings and provided opinions on each of the disabilities, which were supported by evidence in the record. Thus, the examinations provided are adequate for rating purposes. The Board notes that it is remanding the claims for service connection for lumbar spine and cervical spine disabilities to obtain additional private medical records; however, the Board finds that it can still decide the three issues of sinusitis, a left ankle disability, and left foot plantar fasciitis. Specifically, there is no indication that these other records are relevant to these issues. For example, the Board is seeking to obtain spine treatment records from Dr. John Adams. In the three records written by Dr. John Adams, he does not address treatment for sinusitis, the left ankle, or the left foot. See January 2010, September 2010, and February 2012 documents. In the September 2010 letter, Dr. Adams addressed the Veteran's feet; however, on page 1 of that document, he wrote out the dates he had treated the Veteran, which did not involve treatment for the feet. Thus, the Board finds that Dr. Adams's medical records would not include treatment for the feet. The hospital records the Board is seeking to obtain relate to treatment following a January 1999 motor vehicle accident, where the injuries the Veteran sustained did not involve the sinuses, the left ankle, or the left foot. See January 1999 record (showing current complaints of neck pain, headache, shoulder pain, pain in the lower back, and numbness in the hand on the right); see also May 1999 and July 1999 private medical records (showing complaints in same areas). Thus, the Board finds that the additional records it is seeking are not relevant to the issues being decided herein. Lastly, the Veteran submitted a letter from Dr. Adams that is dated February 2012. The agency of original jurisdiction has not reviewed this record, and the Veteran did not indicate he was waiving initial consideration of this document by the agency of original jurisdiction. See 38 C.F.R. § 20.1304(c) (2012) (additional pertinent evidence received by Board must be referred back to agency of original jurisdiction unless waived by appellant or benefit sought is allowed without referral). Regardless, the Board finds it can decide the three issues involving sinusitis, the left ankle, and the left foot at this time. The content of the February 2012 letter relates only to the lumbar spine and the cervical spine. See letter. Thus, the content is not pertinent to the issues being decided herein. The Board is remanding the claims for service connection involving the lumbar spine and cervical spine, and the agency of original jurisdiction will have the opportunity to review the February 2012 record when it readjudicates those issues. The Veteran has not indicated that there are any other outstanding records that need to be obtained. Therefore, VA may proceed with the consideration of his claims. Analysis The Veteran claims that service connection for sinusitis, a left ankle disability, and left foot plantar fasciitis is warranted. He states he was treated for each of these disabilities during service, and that he still has pain in his feet. Service connection is warranted for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002). To establish compensation for a present disability, there must be: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362(2009). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21. Vet. App. 303 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102 (2012). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of service connection for sinusitis, left ankle disability, and left foot plantar fasciitis. The Board will address each issue separately. As to sinusitis, the service treatment records show that in June 1994, he was diagnosed with sinusitis. Since that time, however, he has not had an episode of sinusitis. At the June 2010 VA examination, the Veteran informed the examiner that he had not had another episode of sinusitis since 1994. Clinical evaluation of the sinuses was negative, and the examiner wrote, "The Veteran denies any current sinus problems. He states that he was only treated once for a sinus condition." This means there is no competent evidence of current sinusitis, since there is no evidence of a diagnosis of sinusitis or symptoms of sinusitis during the appeal period. See McClain, 21 Vet. App. at 321. The Veteran submitted his claim for compensation benefits in 2009, and informed the examiner he had not had an episode of sinusitis since 1994. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that based on the Veteran's statements to the June 2010 examiner and to VA, he may be under the impression that if he was treated for a disability during service, that it means he is entitled to service connection for that disability. The basis for this conclusion is that the Veteran has not attempted to allege any current sinusitis and yet still notes he was treated for such while in service in expressing his disagreement regarding the denial of this claim. However, there must be a resultant disability from the disease or injury in service to warrant service connection. As to the left ankle disability, the service treatment records show that the Veteran sustained a grade II sprain in July 1996, which was placed in a cast. In August 1996, there were notations that the sprain was resolving. A December 1997 Report of Medical Examination shows that clinical evaluation of the lower extremities was normal, and the Veteran did not report having ankle pain at that time. At the June 2010 VA examination, the Veteran reported that he had sustained subsequent sprains to his left ankle but had not had one in the last two years. He described feeling like his ankle rolled. The examiner reported normal clinical findings and x-rays of the ankle were normal as well. (The x-rays revealed a "tiny plantar calcaneal spur," which involves the foot and not the ankle.) The examiner stated he could not provide an opinion as to the etiology of the ankle because there was no current disability upon which to opine. While the Veteran has stated that his left ankle will roll, he reported that he had not had a sprain in the last two years. Thus, since the Veteran submitted his claim for service connection for a left ankle disability, he has not brought forth competent evidence of a current disability or service connection of a current disability pertaining to the left ankle. See McClain, 21 Vet. App. at 321. In the absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. 225. As to the left foot, the service treatment records show the Veteran was diagnosed with plantar fasciitis in August 1997. He reported the pain in his left foot had existed for eight months or so. He continued to complain of pain in his left foot and was again diagnosed with plantar fasciitis in September 1997. The December 1997 Report of Medical Examination shows that clinical evaluation of the feet was abnormal and the examiner wrote that the Veteran had been diagnosed with plantar fasciitis in September 1997, which was "unresolved." At the June 2010 VA examination, Veteran reported that he still had pain in his left foot all the time and that he could not walk barefoot. He noted he bought shoes with high arch supports and used "biofreeze" on his foot a couple of times a week. Clinical findings did not reveal plantar fasciitis and x-rays of the left foot showed minimal hallux valgus and a tiny calcaneal spur. The examiner wrote she could not provide an opinion as to the etiology of the plantar fasciitis because the Veteran did not have such disability. In a September 2010 letter, Dr. Adams wrote the Veteran had plantar fasciitis in the left foot. The RO provided the Veteran with another examination in November 2011 to address whether the Veteran, in fact, had plantar fasciitis. The examiner did not find plantar fasciitis on clinical evaluation, but diagnosed the Veteran with foot pain. Following examination, the examiner concluded that it was less likely than not that the Veteran had a current left foot disability that was incurred in service. She explained there was no objective evidence of plantar fasciitis from 1997 to the current time. She concluded that the 1997 condition was a temporary and transient condition. Thus, there is a June 2010 VA examiner who found no plantar fasciitis in the left foot, but the Veteran's private physician reported in September 2010 that the Veteran had plantar fasciitis. Then in a November 2011 VA examination report, the examiner did not report findings of plantar fasciitis, but diagnosed the Veteran with foot pain. The Board accords more probative value to the June 2010 and November 2011 VA examiners's finding of no plantar fasciitis than to Dr. Adams's diagnosis of plantar fasciitis for two reasons. One, both examiners physically evaluated the Veteran's left foot. There is no indication that Dr. Adams physically evaluated the Veteran's foot. Two, Dr. Adams also diagnosed the Veteran as having pes planus, and yet both the June 2010 VA examiner and the November 2011 VA examiner found the Veteran did not have pes planus. Additionally, x-rays taken in June 2010 and November 2011 both showed there was no pes planus in the Veteran's left foot. Thus, Dr. Adams has provided a diagnosis that has not been shown clinically or radiographically, which significantly lessens the probative value of his diagnosis of plantar fasciitis. Thus, the Board finds the preponderance of the evidence is against a finding that the Veteran has left foot plantar fasciitis. While the November 2011 examiner diagnosed the Veteran with foot pain, she did not provide a diagnosis of a disability due to disease or injury; rather, her diagnosis was limited to foot pain. Pain, standing alone, is not a disability. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001) (pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). Thus, the Board finds the preponderance of the evidence is against a finding that the Veteran has left foot plantar fasciitis. Alternatively, even if the Board accepted that the Veteran has a current left foot disability that causes his left foot pain, the Board finds there is competent evidence that it is not related to service. In the November 2011 VA examination report, the examiner specifically found that what the Veteran had now was not related to the diagnosis of plantar fasciitis in service. She found the in-service foot pain to be indicative of a temporary and transient condition. There is no competent evidence to refute this opinion. Dr. Adams's September 2010 letter does not attribute the diagnosis of plantar fasciitis to service. Rather, he noted the Veteran had pes planus and "now has plantar fasciitis of the left foot." At no time did he attempt to attribute the plantar fasciitis to service. As to continuity of symptomatology, the Board is aware that the Veteran has alleged he has had chronic left foot pain since being diagnosed with plantar fasciitis in 1997. The Board accords such statement significantly lessened probative value because the Veteran has provided inconsistent statements regarding continuous pain with respect to another disability. For example, the Veteran has claimed that his back has been bothering him since the in-service injury and that the January 1999 motor vehicle accident aggravated his back. See March 2012 statement and September 2010 VA Form 9. However, when the Veteran underwent physical therapy following the January 1999 motor vehicle accident, the examiner addressed whether the Veteran had the same or a similar condition previously. He wrote: [The Veteran] reported he sustained a previous lower back injury in 1995. He stated that he was diagnosed with a lumbar strain and treated with Flexeril. [The Veteran] stated that he recovered without residuals and had not experienced any lower back pain for several years prior to the recent accident. See January 22, 1999, record from Progressive Chiropractic. Thus, the Veteran's statements of continuity of symptomatology in connection with his claim for compensation benefits for the low back disability are different than the statements he reported in January 1999, which was in close proximity to his service discharge. The Board accords more probative value to the January 1999 report because it was reported in close proximity to the Veteran's service and while not seeking VA compensation benefits for a low back disability. The inconsistency of such statements has damaged the Veteran's credibility, which damaged credibility also applies to the claim for service connection for the left foot. This is why the Board accords essentially no probative value to the Veteran's allegation of chronic left foot pain. In this regard, in the September 2010 letter, Dr. Adams listed the dates he treated the Veteran for various complaints, which treatment period ran from 2003 to 2010 and included treatment for the back, left shoulder, laceration of the right check, pain in the buttock area, and cystitis. There was no discussion of treating the Veteran for left foot pain. The Veteran has stated that Dr. Adams has been his family physician for many years. See April 2012 statement. This lends credence to a finding that the Veteran was not having chronic pain in his feet since service discharge. In sum, the Board finds that the preponderance of the evidence is against a finding that the Veteran has left foot plantar fasciitis or a left foot disability due to disease or injury. However, to the extent that he has been diagnosed with a left foot disability, the Board finds the preponderance of the evidence is against a finding that it is related to service for the reasons described above. For the above reasons, the Board finds that the preponderance of the evidence is against the claims for service connection for sinusitis, a left ankle disability, and left foot plantar fasciitis, and the claims are denied. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Service connection for sinusitis is denied. Service connection for a left ankle disability is denied. Service connection for left foot plantar fasciitis is denied. REMAND The Board finds additional development is warranted prior to deciding the issues involving service connection for lumbar spine and cervical spine disabilities. Specifically, there are relevant outstanding records that should be obtained to ensure that an informed decision is being made as to both claims. In a January 2010 private record, Dr. John Adams stated he had treated the Veteran several times for back pain and that he first examined the Veteran in January 2003. There are three documents from Dr. Adams in the claims file (dated January 2010, September 2010, and February 2012), but there has been no attempt to obtain his treatment records, which are relevant to these two issues. The Board notes that while Dr. Adams wrote he had first seen the Veteran in January 2003, there is a January 1999 private medical record in relation to therapy treatment following a motor vehicle accident that happened at that time that indicates the Veteran saw Dr. Adams at that time. See January 22, 1999, record from Progressive Chiropractic ("The patient reported that his symptoms continued to increase so he went to see Dr. Adams at Med-Tex. Dr. Adams examined [the Veteran], prescribed some different medication and referred him here for therapy." Thus, the Board will request that the Veteran give VA permission to obtain the records as far back as the 1990s from Dr. Adams. Also in the January 1999 private medical record was a notation that the Veteran reported he had gone to the emergency room at Marshall Regional Medical Center for evaluation after the motor vehicle accident and that x-rays were taken. The records from Progressive Chiropractic show complaints of neck and low back pain. This would mean these were the two areas that were affected by the motor vehicle accident. These records would also be relevant to the issues involving the lumbar spine and cervical spine. Finally, also in the January 2010 letter from Dr. Adams, he mentioned the Veteran had been examined by Dr. Delmar Brooks on January 15, 2003, for his back and by a neurosurgeon, Dr. Nunley in approximately 2010. An attempt to obtain these records should be made as well. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and ask him to give VA permission to obtain the following private medical records: * Dr. John Adams from the 1990s until the present time; * Marshall Regional Medical Center, including x-ray reports, from January 1999; * Dr. Delmar Brooks in approximately 2003; and * Dr. Nunley in approximately 2010. The Veteran is asked to cooperate in this endeavor due to the relevance of these documents to his claims for service connection for lumbar spine and cervical spine disabilities. 2. Following receipt of the additional records, the RO/AMC should determine if the additional facts warrant an addended opinion from the examiner who provided the January 2012 VA examination. 3. Thereafter, the RO/AMC should readjudicate the claims for service connection for lumbar spine and cervical spine disabilities. If any of the benefits sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs