Citation Nr: 1323742 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-11 175A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from August 2002 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision by the RO. In March 2011 the Board remanded the claims for additional development. During the pendency of the appeal, a May 2012 rating decision granted service connection for a neck disability. Since the Veteran has not disagreed with the rating or effective date assigned, the issue pertaining to a neck disability is no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The claim of entitlement to service connection for degenerative disc disease of the lumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The evidence shows that the Veteran's claimed bilateral pes planus did not manifest during, or as a result of, active military service. 2. The competent medical does not show that the Veteran currently suffers from a right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for establishing entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in December 2008. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). Additionally, the claims were readjudicated in the May 2012 supplemental statement of the case. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service treatment records, Virtual VA file, and private and VA treatment records have been obtained. In addition, the Veteran has been provided with VA examinations in connection with the claims herein decided. Finally, the Veteran has not indicated that there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of recurrence of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Bilateral pes planus The Veteran contends he developed flat feet due to wearing boots in service. The Board must assess the Veteran's competence and credibility to assert that his bilateral pes planus was caused by service. A Veteran is competent to testify to factual matters of which he had first-hand knowledge. Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the personal knowledge of the witness. Layno v. Brown, 6 Vet. App. 465 (1994). 38 C.F.R. § 3.159(a)(2) (2012). The Board finds that the Veteran is competent to report that he had bilateral foot problems in service and since service. Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2) (2012). To the extent that the Veteran reports recurrence of symptomatology since service, the Board acknowledges that lay evidence concerning recurrent symptoms after service, if credible, can be competent, despite the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Here the Board finds that the Veteran's contentions are not credible because they are inconsistent with previous statements and the contemporaneous evidence of record. The service treatment records do not show any complaints, treatment, diagnosis or abnormalities referable to any foot problems. On separation from service in May 2005 the Veteran denied any foot problems. An examination at that time showed the Veteran's feet were normal and that he had normal arches of the feet. The Board finds that the service medical records lack the combination of manifestations sufficient to identify a chronic bilateral foot condition, to include flat feet. After service, private medical records showed that the Veteran was treated for bilateral foot problems in March 2008. The diagnoses included bilateral pes planus and plantar fasciitis. He was provided with orthotics for the right heel. When examined by VA in August 2008, there were no findings reported for the Veteran's feet. Accordingly, following service discharge, the next record of treatment for bilateral foot problems and flat feet, is not until 2008, approximately 3 years after service. The Board has weighed statements made by the Veteran as to incurrence of bilateral pes planus during service and recurrence of related symptoms, and finds the current recollections and statements made in connection with the claim for benefits to be of less probative value. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). In considering the statements of the Veteran as to the incurrence of bilateral pes planus during service, and recurrent symptoms since service, in light of the evidence discussed, the Board finds that they did not present a persuasive history because they contradict other evidence of record. In this regard, as previously noted, the claimed disability was not diagnosed in service, and on separation from service in May 2005 the Veteran denied any foot problems, his feet were clinically evaluated as normal and he was found to have normal arches. Significantly, post-service discharge the medical treatment records do not show complaints, clinical findings or diagnoses consistent with pes planus until approximately 3 years after discharge from service. Therefore, the Board finds that recurrence of symptoms has not been established, either through the competent evidence or through the Veteran's statements. This is because his statements as to developing flat feet in service with recurrence of symptoms are less persuasive than the service treatment records. Therefore, the Board finds that recurrence of symptomatology has not here been established, either through the competent evidence or through the Veteran's statements, because his statements are not considered credible. On the question of medical causation or medical evidence of an association or link between the claimed disabilities and service, there is evidence both for and against the claim. 38 C.F.R. § 3.303(d) (2012). With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, which may include a review of medical literature; and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Also, the probative value of a medical opinion is generally based on the relative merits of the analytical findings, and the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000). In support of his claim, the Veteran submitted a statement dated in September 2009, wherein a private chiropractor opined that the Veteran's bilateral flat feet were consistent with injury from carrying heavy equipment in service. The Board notes that the medical opinion from the chiropractor is a mere conclusion without medical analysis and is insufficient to allow the Board to make an informed decision as to what weight to assign against contrary evidence on the question of whether the Veteran's claimed bilateral pes planus had onset in service. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign the opinion). Significantly, the opinion was not supported by a rationale, which weighs against its probative value. Sklar v. Brown, 5 Vet. App. 140 (1993). Further, although the chiropractor discussed generally the Veteran's service treatment records, to include the lack of findings pertaining to either foot on service induction, she failed to acknowledge the lack of findings consistent with flat arches throughout the Veterans' service and the fact that the Veteran's feet, to include his arches, were clinically evaluated as normal upon separation from service. As the record contradicts the facts relied on by the chiropractor to form the basis of her opinion, her report is of little probative value and is not persuasive medical evidence of a nexus between the Veteran's claimed bilateral pes planus and active service. The evidence against the claim is the medical opinion of the VA examiner in April 2011, who opined that bilateral pes planus was not related to service. In this regard, despite the Veteran's complaints of bilateral foot pain, on physical examination the examiner concluded that while the Veteran did not have high arches, he did not have flat feet either. The examiner further found no evidence of foot swelling, hammertoe, or hallux valgus in either foot. Range of motion of the toes was preserved, bilaterally. The alignment of the forefoot and midfoot was normal in both feet. Walking was normal without the need for assistive devices for ambulation. No clawfoot or calluses were noted. X-rays revealed no abnormality. Accordingly, the examiner did not diagnose a right or left foot condition noting that the Veteran's right and left foot examination was normal. As such, the examiner opined that without any objective findings of a right or left foot disability, it was less likely than not that the Veteran had any permanent disability affecting either foot, or that any current symptoms were aggravated by service. The examiner indicated that he disagreed with chiropractor's findings that service caused flattening of the Veteran's feet. The examiner reiterated that examination of the Veteran's feet did not show that the Veteran had flat feet. Moreover, the examiner explained that walking in boots for a couple of years would not cause flattening of the feet, rather pes planus was a congenital disorder. The Board assigns greater weight to the opinion of VA examiner because the examiner applied medical analysis to the significant facts of the case. The opinion is reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. Prejean v. West, 13 Vet. App. 444 (2000). The VA examiner's opinion was based on review of the Veteran's claims file, to include the service treatment records, and included an examination of the Veteran, and addressed the chiropractor's opinion statement and clinical findings. The examiner also explained why the Veteran's symptomatology was not related to service. Green v. Derwinski, 1 Vet. App. 121 (1991). In reaching these conclusions, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim in this case, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right shoulder The Veteran seeks service connection for a right shoulder disability claimed to have been incurred during an explosion from an improvised explosive device (IED) during service in Iraq. The service personnel records show that the Veteran was exposed to an explosion from an IED during service in Iraq, which caused extensive damage to the vehicle he was riding. The service treatment records do not show any complaints, treatment, diagnosis or findings consistent with a right shoulder condition, and specific injury or trauma to the right shoulder was not documented in service. On his service separation report of medical history in May 2005, the Veteran checked the "yes" box when asked if he had or had ever had a painful shoulder, elbow or wrist. An examination at that time showed the Veteran's musculoskeletal and neurological systems were normal. Medical records from a private chiropractor, received in April 2008, showed that the Veteran was treated for neck and back problems beginning in March 2008. He also complained of right shoulder pain. On initial consultation, the Veteran described the events surrounding the IED blast during service in Iraq, which caused extensive damage to the vehicle he was riding in but did not result in any serious injuries to the occupants. Reportedly, he hit his arm and elbow on the vehicle during the explosion. The chiropractic notes do not reflect any treatment, abnormalities, or diagnosis referable to any right shoulder problems. When examined by VA in August 2008, there were no findings reported for the Veteran's right shoulder. Thereafter, on VA examination in April 2011, the Veteran reported onset of right shoulder pain prior to service. He indicated that the pain was aggravated by carrying heavy equipment in service. He complained of constant right shoulder pain that fluctuated in intensity and increased with range of motion. The Veteran treated the pain with over-the-counter medication. Physical examination of the right shoulder revealed no abnormalities. X-rays of the right shoulder were essentially unremarkable. Accordingly, the examiner did not diagnose a right shoulder condition noting that the Veteran's right shoulder examination was normal. As such, the examiner opined that without any objective findings, it was less likely than not that the Veteran had any permanent disability affecting the right shoulder that was aggravated by service. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, the Board finds that, since filing his claim in June 2008, the Veteran does not have a diagnosis of a right shoulder disability, to include residuals of an in-service right shoulder injury. To the extent that the Veteran may complain of right shoulder pain, complaints of symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability for which service connection may be granted. Degmetich v. Brown, 8 Vet. App. 208 (1995) (compensation may only be awarded to an applicant who has a disability existing on the date of the application, and not for a past disability); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of the claimed disability, there can be no valid claim). Here, the preponderance of the evidence of record is against a finding of any current diagnosis of a right shoulder disability. The Board recognizes the Veteran's contention that service connection should be granted for a right shoulder disability. As a layperson, however, he is not competent to provide an opinion requiring medical knowledge, such as a diagnosis for the cause of a shoulder symptom. As a result, his assertions do not constitute competent medical evidence that he currently has a shoulder disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2) (2012). As there is no competent medical evidence of a current diagnosis of right shoulder disability additional development is not needed. In the absence of proof of a present disability there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In reaching these conclusions, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim in this case, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral pes planus is denied. Service connection for a right shoulder disability is denied. REMAND The Veteran contends that he currently suffers from degenerative disc disease of the lumbar spine as residuals of an injury incurred during a detonation of an IED in service. In the alternative, he claims he developed degenerative disc disease of the lumbar spine due to trauma from carrying heavy equipment during the performance of his duties in service. The service treatment records do not show any specific injury or trauma to the Veteran's low back. On a Report of Medical History for separation from service in May 2005, the Veteran reported a history of low back pain. An examination at that time showed the Veteran's spine was normal. Private chiropractic records show that the Veteran was treated for low back problems in March 2008. The diagnoses included "sprains and strains" and "subluxation, segmental dysfunction." In a letter received in September 2009, a private chiropractor opined, in essence, that the Veteran's low back disability was consistent with injury from carrying heavy equipment in service. When examined by VA in August 2008, x-ray studies revealed disc space narrowing and degenerative facet disease at the L5-S1 level. The examiner diagnosed mild degenerative disc disease of the lumbar spine and opined that it was less likely than not that the Veteran's current low back disability was related to the IED explosion in service. However, the examiner did not offer any assessment as to whether the disability was otherwise related to service, to include as due carrying heavy equipment therein. Accordingly, the Board determined that a new examination was necessary in order to fairly decide the merits of the claim. Pursuant to the Board's remand directives, the Veteran underwent a VA examination in April 2011. The examiner noted that x-rays of the lumbar spine revealed no abnormalities. The examiner did not diagnose a low back condition noting that the Veteran's low back examination was normal, and opined that without any objective findings, it was less likely than not that the Veteran had any permanent disability affecting the low back, and that it was unlikely the Veteran's service aggravated current symptoms. The examiner did not discuss the findings of the VA examiner who in August 2008 diagnosed degenerative disc disease of the lumbar spine. Although at the VA examination in April 2011 a diagnosis pertaining to the lumbar spine was not shown, based on the examination findings in August 2008, the requirement of a current disability, for purposes of service connection analysis, are satisfied. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In light of the foregoing, the Board finds that a more detailed opinion is necessary in this case. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from individuals that have first-hand knowledge, and/or were contemporaneously informed of his claimed low back disability and the onset, chronicity and/or relationship between his lumbar spine disability and service. The Veteran should be provided a reasonable amount of time to submit this lay evidence. 2. Request that the Veteran identify any outstanding VA or private treatment records pertaining to his low back. Take appropriate measures to request copies of any outstanding records the Veteran identifies, to include all relevant records of VA treatment. 3. After the above development is completed, schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology any low back disorder that may be present. All necessary tests should be conducted. The claims folder should be reviewed and that review should be indicated in the examination report. The rationale for all opinions should be provided. The opinion sought is one that addresses whether the Veteran has a current lumbar spine disability, and if so, whether it had its onset during service. In the event it is concluded the Veteran does not currently have a lumbar spine disability, the contrary findings by the Veteran's chiropractor and the August 2008 VA examiner should be explained. 4. After undertaking any additional development deemed appropriate, adjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to respond before the claim file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs