Citation Nr: 1306189 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-07 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for sleep problems. 3. Entitlement to service connection for cysts. 4. Entitlement to service connection for scars, residuals from cyst removal. ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from June 1985 through February 1991, June 1999 through March 2000, February 2006 through November 2006, and January 2008 through October 2008. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia in October 2009, which among other issues, denied service connection for bilateral pes planus and sleep problems, and in July 2010, which denied service connection for a cyst and a scar, claimed as a residual of a cyst removal during service. In December 2012, the Veteran wrote to the RO and indicated his desire to appeal to the Board the matter of a "clinical appeal". Indeed, copies of correspondence exchanged between the Veteran and medical staff at the VA medical center in Dublin, Georgia in 2011 and 2012 indicate that the Veteran initiated a grievance process concerning the quality of medical care provided to him at the Dublin VAMC. Nonetheless, the Board does not have jurisdiction over that matter. See 38 C.F.R. § 20.101. In December 2012, VA received additional medical evidence from the Veteran, consisting of four pages of private treatment records from Georgia Cancer Specialists. This additional evidence was not accompanied by a waiver of review by the agency of original jurisdiction (AOJ), pursuant to 38 C.F.R. § 20.1304(c). The additional evidence appears to pertain to the prescription of allergy medication and results from laboratory testing for suspected leukemia, but does not pertain to the Veteran's claimed pes planus, sleep problems, cyst disorder, or residual scar. In February 2013, the Board received yet additional documentation from the Veteran. Once again, that documentation does not directly pertain to the issues on appeal. As the newly received evidence is not relevant to the issues on appeal, remand of this matter for the AOJ's initial review of the new evidence is not necessary in this case. The issues of entitlement to service connection for sleep problems, cysts, and scar claimed as residuals of cyst removal 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. FINDING OF FACT The Veteran's pes planus pre-existed his enlistment into active duty service; was asymptomatic at the time of his enlistment; has been shown to have been aggravated by his active duty service; and is currently manifested by symptoms of pain, swelling, stiffness, and redness that have resulted from ongoing flat-foot deformities. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus have been met. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A pre-rating April 2009 letter notified the Veteran of the information and evidence needed to substantiate his claim for service connection for bilateral flat foot with foot pain. Consistent with Dingess, this letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's October 2009 rating decision. Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's service treatment records, claims submissions, VA treatment records, and identified and relevant private treatment records have been associated with the record. In August 2009, the Veteran was afforded a VA examination of his feet. This examination, along with the other evidence of record, is fully adequate for the purposes of determining the nature and etiology of the Veteran's bilateral pes planus disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). In support of his claim for service connection for bilateral pes planus, the Veteran alleges in his October 2009 NOD that he began experiencing pain in his feet during boot camp training in July 1985, and, that he received treatment for his feet during service. He also alleged that he was diagnosed with a left foot bone spur in October 2006. Thus, the Veteran asserts that disabilities arising out of his bilateral pes planus were first incurred during his active duty service. The Veteran's service treatment records show that the Veteran had a pes planus disorder that pre-existed his enlistment into active duty service. In that regard, a June 1984 enlistment examination report notes that the Veteran had flat feet that were asymptomatic at that time. Consistent with the Veteran's assertions, the subsequent service treatment records show that the Veteran was treated for pain in the arches of both feet in June 1985. At that time, he was issued arch supports. On month later, in July 1985, the Veteran reported pain in his right ankle that had been persisting for two weeks. At that time, the Veteran reported that the arch supports were not helping his foot symptoms. The Veteran was diagnosed with pes planus and foot strain. During subsequent physical examinations performed over the course of his service, the Veteran continued to report foot problems. In June 1992, the Veteran sustained a left ankle sprain while climbing a ladder. In December 1998, he reported that he had bruised ankles due to marching. During civilian treatment at Family Health Center in August 2000, the Veteran reported bilateral foot and ankle pain that was diagnosed as pes planus and plantar fasciitis. In October 2006, the Veteran was treated for apparent metatarsalgia in the toes of his left foot after he stepped on a rock during service in Kuwait. In October 2008, the Veteran was treated for bilateral heel pain, and was diagnosed again with plantar fasciitis and left foot bone spurs. After his separation from service, the Veteran was afforded a VA examination of his feet in August 2009. One again, the Veteran reported in-service foot symptoms and treatment that is consistent with that noted in the service treatment records. Regarding his current symptoms, the Veteran reported pain in the arches of both feet and at the bottom of his left heel while at rest. He stated that he was experiencing sharp local pain and aching after prolonged standing and walking. He also described swelling and stiffness in his arches, swelling at his ankles, and redness of his feet. A physical examination of the feet at that time confirmed ongoing flat foot deformities of both feet. Both feet were painful to palpation along the medial arch regions. Pain was also present upon palpation of the left heel. Tenderness was also noted over the posterior tibial tendon course of the right foot. During weight-bearing, the Veteran demonstrated abnormal heel eversion bilaterally. Claw foot deformities were also seen in the second through fifth toes of both feet. X-rays of the feet were reviewed and interpreted as showing abnormal splay deformities of the left foot, hypertrophic condyle at the base of the hallux distal phalanx on both feet, toe deformities of the fourth and fifth toes of the left foot, plantar inferior calcaneal left heel spur, and severe flat-foot deformities. The examiner diagnosed flat-foot deformities of both feet with posterior tibial tendon dysfunction of the right foot and plantar inferior left heel spurs that were symptomatic. The examiner opined that, based on the Veteran's medical history and the findings from the examination, it is medically reasonable to suggest that the Veteran's foot conditions are related to his active duty service. Subsequent post-service treatment records, which are dated through November 2012, do not indicate frequent treatment for the Veteran's feet. Nonetheless, an examination performed during VA treatment in October 2011 revealed the presence of edema on the left foot and ankle. During VA treatment of his feet in April 2012, the Veteran was diagnosed with recurrent left plantar fasciitis. No diagnosis concerning the right foot is mentioned in the April 2012 report. The evidence shows that the Veteran's bilateral pes planus pre-existed his enlistment into active duty service, as the existence of that condition was noted in his June 1984 enlistment examination report. A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition 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 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); See also Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). In this case, the evidence shows that the Veteran's pre-existing bilateral pes planus was aggravated during his active duty service. As noted in the enlistment examination report, the Veteran's pes planus was asymptomatic at the time of his enlistment. Subsequent service treatment records, however, show that the pes planus became increasingly symptomatic over the duration of his service. In that regard, the Veteran began reporting pain in the arches of his feet in June 1985. These symptoms apparently did not resolve, as the Veteran sought follow-up treatment the following month, complaining of similar symptoms. Over the Veteran's subsequent periods of service, he developed bruising in his ankles, plantar fasciitis of both feet, and bone spurs in his left heel. The Board notes that the VA examiner's August 2009 opinion did not expressly address the question of whether the Veteran's flat feet were aggravated by his active duty service. Nonetheless, the examiner appears to conclude that current disorders, which include flat-foot deformities of both feet with posterior tibial tendon dysfunction of the right foot and plantar inferior left heel spurs, are symptomatic and are at least as likely as not related to his active duty service, as he states that it is "medically reasonable" to conclude that such a relationship exists. Given that the Veteran's pes planus was asymptomatic at the time of his enlistment, became symptomatic over the course of the Veteran's active duty service, and current manifestations of the Veteran's flat feet have been determined by the VA examiner as having arisen from his active duty service, the Board finds that it is logical to conclude from the evidence that the Veteran's pre-existing bilateral pes planus was worsened during and after his active duty service. Accordingly, the Veteran is entitled to service connection for bilateral pes planus. To that extent, this appeal is granted. ORDER Service connection for bilateral pes planus is granted. REMAND The Board finds that further development is necessary prior to final adjudication of the issues remaining on appeal. Regarding the Veteran's claim for service connection for sleep problems, the Veteran has alleged in his claims submissions that he developed sleep problems after his return from deployment to Iraq in 2009. Thus, he appears to assert that his claimed sleep problems are a result of his active duty service. Indeed, the service treatment records include an October 2008 Brief Patient Health Questionnaire that was completed by the Veteran after his return from Iraq, and, which reflects that he reported having several days over the prior two weeks in which he experienced problems falling or staying asleep, or sleeping too much. A May 2009 Post-Deployment Health Assessment also completed by the Veteran reflects that he continued to report difficulty sleeping. The post-service treatment records show that the Veteran continued to report sleeping problems. Following a February 2012 sleep study, the Veteran was diagnosed with mild obstructive sleep apnea. During an October 2012 VA examination, the VA examiner confirmed the sleep apnea diagnosis, however, concluded that the Veteran's obstructive sleep apnea was less likely than not incurred during or caused by an in-service injury, event, or illness. In her rationale, the examiner noted that the Veteran gained 50 pounds following his separation from service; hence, she appears to attribute the Veteran's sleep apnea to his post-service weight gain. Although the examiner also acknowledges in her rationale that the Veteran's service treatment records indicate in-service complaints of sleep difficulties, she does not offer any explanation or discussion as to how these in-service complaints comport with her negative etiology opinion. Specifically, there is no discussion as to why she believes that the Veteran's current sleep apnea is related to his post-service weight gain despite the in-service complaints of sleep problems that are noted in the service treatment records. Under the circumstances, the October 2012 opinion is incomplete. Accordingly, the Veteran should be afforded a new VA examination, with an appropriate VA examiner, to determine the etiology of his obstructive sleep apnea disability. 38 C.F.R. § 3.159(c)(4). Regarding the Veteran's claims for service connection for cysts and a scar, claimed as being a residual of in-service cyst removal, the Veteran alleges in an April 2010 statement that he underwent a cyst removal during service in January 1991 which was performed by a private physician, Dr. H.L. An address for Dr. H.L.'s practice was provided in the statement. According to the Veteran, reference to the cyst removal is annotated in a June 1992 service treatment record. In his substantive appeal, the Veteran states that he continues to experience cysts that have required ongoing VA treatment. Review of the service treatment records indicates that, in a June 1992 Report of Medical History, the Veteran reported a history of cysts. In Reports of Medical History completed by the Veteran in February 2000 and January 2006, and during a December 2004 physical examination, the Veteran reported a prior in-service medical history which included a cyst removal that was performed in January 1991. Post-service treatment records, which are dated through November 2012, show that the Veteran has received frequent and ongoing VA treatment for complaints of recurring lesions, rashes, and itching over multiple areas of the Veteran's body, including his scalp, areas of his face, torso, shoulders, arms, waist, groin, legs, and feet. These manifestations have been diagnosed alternatively as keratoses, eczema, and seborrheic dermatitis. A September 2010 examination of lesions on the Veteran's nose led treating physicians to suspect a possible basal cell carcinoma and to recommend to the Veteran that the lesion be biopsied. An October 2010 VA treatment record reflects findings of sun damage on the Veteran's face. Concerning the Veteran's claimed residual scar, a physical examination performed during VA treatment in July 2010 revealed the presence of a scar on the upper back that measured 2 centimeters by 0.7 centimeters. No opinion was given as to the etiology of the scar. Overall, the record is unclear as to the nature and diagnosis of the Veteran's recurring skin disorder and scar. It is also unclear from the record as to whether the Veteran's current skin disorder is related in any way to the Veteran's in-service cyst. Also, to the extent that examinations performed during post-service treatment have detected the presence of sun damage, it is also unclear from the record as to whether such sun damage is related to the Veteran's current skin condition, and if so, whether such sun damage was the result of sun exposure during the Veteran's active duty service, which includes multiple tours in Iraq and Kuwait. Finally, and in relation to the Veteran's scar, it is also unclear as to whether the scar noted on the Veteran's upper back is consistent with the type of scar that would result from cyst removal performed in 1991. Despite the foregoing medical questions, the Veteran has yet to be afforded a VA examination of his skin. The Veteran should also be arranged to undergo such an examination to explore the nature and etiology of the Veteran's current skin disorder and scar, to include the medical questions outlined above. 38 C.F.R. § 3.159(c)(4). The Board also notes that VA has not undertaken any documented efforts to obtain the private in-service treatment records from Dr. H.L., whose treatment was indicated by the Veteran in his April 2010 statement. Prior to arranging the above examinations, in order to insure that the most complete and up-to-date evidence has been associated with the claims file, efforts should be made to obtain Dr. H.L.'s records. The Veteran should also be asked to identify any private or VA treatment providers who have rendered treatment for his sleep problems and skin since November 2012. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claims of entitlement to service connection for sleep problems, cyst, and scar claimed as a residual from cyst removal during service. This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claims and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange VA examinations for his claimed sleep problems, cyst disorder, and residual scar. The Veteran should be advised that it remains his responsibility to report for the scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any private and/or VA treatment providers who have provided treatment for his sleep problems and/or skin since November 2012. 2. Make efforts to obtain the private treatment records of Dr. H.L. from the address noted in the Veteran's April 2010 statement and records of any other treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the development actions described above have been performed to the extent possible, the Veteran should be afforded a VA examination, with an appropriate VA examiner, to determine the nature and etiology of his claimed sleep problems. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. A full examination, to include an interview of the Veteran and any tests and studies deemed necessary by the examiner, should be conducted. The examiner should offer a diagnosis of the Veteran's claimed sleep problems, and an opinion as to whether he or she believes that the diagnosed disorder(s) are at least as likely as not (at least a 50 percent probability) related to the Veteran's active duty service. In rendering this opinion, the examiner should consider and address whether the Veteran's current sleep problems are related in any way to the complaints of sleep problems that are noted in the Veteran's service treatment records. In forming the requested opinion, the examiner should consider all relevant evidence, to include the Veteran's service civilian and military treatment records, post-service VA and private treatment records, prior October 2012 VA examination report, assertions raised in the Veteran's claims submissions and statements, and findings from the new VA examination. If the examiner is unable to provide any of the opinions requested above without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner's opinions and rationale should be expressed in a typewritten and legible report. 4. The Veteran should also be afforded a VA examination, with an appropriate VA examiner, to determine the nature and etiology of his current skin disorder, which the Veteran has claimed as cysts, and the scar that is located on the Veteran's upper back and which is noted in the July 2010 VA treatment record. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. A full examination, to include an interview of the Veteran and any tests and studies deemed necessary by the examiner, should be conducted. The examiner should offer a diagnosis of the Veteran's skin problems, and an opinion as to whether he or she believes that the diagnosed disorder(s) are at least as likely as not (at least a 50 percent probability) related to the Veteran's active duty service. In rendering this opinion, the examiner should consider and address whether any sun damage noted during the examination is related to the Veteran's current skin condition(s), and if so, whether such sun damage was the result of sun exposure during the Veteran's active duty service, which includes multiple tours in Iraq and Kuwait. In forming the requested opinion, the examiner should consider all relevant evidence, to include the Veteran's service civilian and military treatment records, post-service VA and private treatment records, assertions raised in the Veteran's claims submissions and statements, and findings from the examination. In relation to the Veteran's scar, the examiner should also provide an opinion as to whether it is at least as likely as not that the scar is related to reported cyst removal that was performed during service in 1991. The examiner should consider and discuss whether the scar is consistent with such cyst removal. Again, in forming the requested opinion, the examiner should consider all relevant evidence, to include the Veteran's service civilian and military treatment records, post-service VA and private treatment records, assertions raised in the Veteran's claims submissions and statements, and findings from the examination. If the examiner is unable to provide any of the opinions requested above without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner's opinions and rationale should be expressed in a typewritten and legible report. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 6. After completion of the above development, the issues of the Veteran's entitlement to service connection for sleep problems, cysts, and scar claimed as a residual from cyst removal during service should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or 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 that are 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs