Citation Nr: 1325745 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 05-17 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from June 1974 to May 1980. This appeal arose before the Board of Veterans' Appeals (Board) from a December 2005 decision that denied service connection for, in part, bilateral foot disorders; and a January 2011 rating decision that denied service connection, in part, for sleep apnea. The Veteran testified before the Board sitting at the RO in December 2006 and by videoconference from the RO in August 2012. Transcripts of the hearings have been associated with the claims folder. The Board remanded the bilateral foot claim for additional development in December 2007, March 2010, and in November 2012. The claim for sleep apnea was also remanded by the Board in November 2012. The case is again before the Board for further appellate consideration. The records contained in the Veteran's Virtual VA eFolder have also been reviewed in conjunction with these claims. FINDINGS OF FACT 1. Plantar fasciitis was not present in service, and has not been etiologically related to any incident of service. 2. Sleep apnea was not present in service, and has not been etiologically related to any incident of service. CONCLUSIONS OF LAW 1. A bilateral foot disorder, diagnosed as plantar fasciitis, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). 2. Sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall considerations This case was most recently remanded by the Board in November 2012. When a case is so remanded, the Board is obligated by law to ensure that the RO complies with its directives, "[a] remand by...the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." In other words, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). In the instant case, the Board's remand had instructed the RO to obtain any pertinent outstanding treatment records, and to conduct a VA examination of the Veteran's foot disorders and sleep apnea. The examiner was requested to provide current diagnoses and to render opinions, with supporting rationale, as to the etiological relationship between the conditions diagnosed and the Veteran's period of service. The Virtual VA eFolder indicates that VA treatment records developed between 2007 and 2012 were associated with the Veteran's file. The requested VA examinations were conducted in December 2012. As a consequence, it is found that the Board's prior remand instructions have been substantially complied with; therefore, the Board may proceed to adjudication of the Veteran's claims. VCAA The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in September 2005, March 2006, April 2010, and December 2012. This correspondence advised the Veteran of the information necessary to substantiate her claims and of her and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). They also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and she was afforded a meaningful opportunity to participate effectively in the processing of her claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records have been associated with the claims folder. The RO has also obtained those records contained in her Army dependent's file. The Veteran's VA and private treatment records are in the file. She has also been provided with VA examinations. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran was afforded a VA examination in December 2012. See 38 C.F.R. § 3.159(c)(4). The opinions were rendered by medical professionals following a thorough examination and interview of the appellant and review of the claims file. The examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Applicable laws and regulations Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2012). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131; 38 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also 3.304 (2012). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Factual background and analysis Bilateral foot disorder The Veteran has claimed that she had sought treatment on multiple occasions in service for foot complaints. She stated that her duties in service were as a switchboard and computer operator. She was required to go on monthly field exercises and to go on 5 to 10 mile foot marches while carrying a 50 pound pack. She also had to engage in physical training while wearing boots. She asserted that these activities caused her to develop a bilateral foot disorder. She further claimed that as a military dependent she had sought treatment for foot complaints. A review of the Veteran's service medical and military clinic records for dependents from 1979 to 1995, however, are entirely silent as to any complaints of, treatment for, or diagnoses of a bilateral foot disorder. The Veteran testified before the undersigned at two hearings. She described her physical training and field exercises in service. She acknowledged that she had never had to use canes or crutches. She was also never put on limited duty during service due to any foot complaints. A review of the treatment records, in fact, make no mention of any foot complaints before 2012. In June 2012, the Veteran was seen by a VA podiatrist, complaining of painful heels. The examination found full range of motion with tenderness of the plantar heel area. An x-ray showed slight hallux valgus on the right; a small ossified density at the base of the left great toe; and enthesopathy at the attachment of the plantar fascia to the cancaneous bilaterally. However, no degenerative changes were noted. The diagnosis was plantar fasciitis/heel spur syndrome. There was no comment made as to the etiology of this condition. The Veteran was afforded another VA examination in December 2012. The examiner indicated that the claims folder had been reviewed. She was noted to have plantar fasciitis. She reported bilateral foot pain over the past year; she specifically denied any significant trauma to the feet either during or after service. She indicated that the pain had had a sudden onset well after her discharge from service. The examiner noted none of the following: Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, claw foot, mal-or nonunion of the tarsal or metatarsal bones, weak foot, or scars. She did state that she regularly used orthotic inserts and compression socks. An x-ray showed slight hallux valgus on the right and a small ossific density at the base of the left great toe (which could have been related to old trauma), with no significant degenerative changes. The diagnosis was plantar fasciitis. The examiner then rendered the opinion that the diagnosed plantar fasciitis was less likely than not related to or caused by her military service. The examiner stated that "[i]t is not a subtle condition that would have been asymptomatic in the service. Also it does not have latency, i.e. it does not lay dormant for years after the inciting event before its presentation. The etiologies of this condition is aging and BMI being over 30. This is confirmed based on review of the active medical record." After a careful review of the evidence of record, it is found that entitlement to service connection for a bilateral foot disorder, diagnosed as plantar fasciitis, is not warranted. The evidence of record clearly demonstrates that the Veteran's foot complaints did not develop until after 2012, despite her assertions to the contrary (that is, that she had sought treatment while in service and as a military dependent between 1979 and 1995). Both the service treatment records and the military dependent records are completely devoid of any complaints of or treatment for any foot disorders, thereby rendering her statements to the contrary less than credible. In fact, at the time of the December 2012 VA examination, she indicated that her foot complaints had had a sudden onset, developing over the previous couple of years. She had specifically denied any significant trauma to the feet either during or after service. After reviewing all the evidence of record, the VA examiner had concluded that her diagnosed plantar fasciitis had not been present in service and was not otherwise related to service. Rather, it was opined that her foot complaints were related to the aging process and to her post-service weight gain. There is no opinion to the contrary of record. Based on this evidence, the Board finds that entitlement to service connection has not been established. Significantly, there is no evidence of record, other than the Veteran's statements, that she has a bilateral foot disorder related to her period of service. There is no competent opinion of record that provides for such a relationship. The VA examination performed in December 2012, after reviewing the Veteran's entire record, found that the Veteran's diagnosed plantar fasciitis was not related to her period of service; there is no evidence to the contrary. The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or a diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). There is no indication in the record that the Veteran is competent to render a medical opinion as to the etiology of the diagnosed plantar fasciitis. In this case, the Board has determined that the medical evidence is more probative of the issue, and that it outweighs the lay statements. Accordingly, the Veteran's claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Sleep apnea The Veteran has claimed she has sleep apnea that is directly related to her period of service. She stated during her August 2012 hearing that she had daytime sleepiness in service during such situations as training and exercise classes. While fellow soldiers had never mentioned to her that she had snored, she expressed her belief that she had snored during service, just that it was not very loud. The Veteran's service treatment records included a report of the May 1976 entrance examination. This noted a pre-service history of trouble sleeping. The examiner diagnosed mild insomnia, noting that it was not disqualifying. A June 1976 dermatology note reported a history of narcolepsy or petit mal episodes, noting that one had occurred that day at the clinic. There was no further mention of any sleep complaints in the service treatment records. She made no reference to such symptoms as interrupted sleep, daytime somnolence, or respiratory dysfunction during sleep. There was also no indication that she was ever prescribed any medications for the treatment of a sleep disorder. Significantly, she was hospitalized for 9 days in November 1976, during which there was no mention of insomnia, narcolepsy, or seizures. No reference was made about any sleep disorders until the Veteran presented with complaints of excessive daytime somnolence in March 2004, which she indicated had been present since high school. She stated that she had daytime sleepiness in such circumstances as attending church or driving. Others had reportedly told her that she snored. She denied nasal or respiratory difficulties, congestion, or other physical symptoms that disturbed her sleep. A sleep study was ordered; this was conducted in May 2004, following which she was diagnosed with significant obstructive sleep apnea. She was prescribed a CPAP machine for treatment. The Veteran continued after this point to seek treatment for sleep difficulties. A July 2010 note indicated that testing had found narcolepsy without cataplexy. The Veteran was afforded a VA examination in December 2012. The examiner noted that she had been diagnosed with obstructive sleep apnea in 2004 and with narcolepsy in the 1970's. The narcolepsy was noted to have preceded service, developing while she was quite young. The sleep apnea, however, had not been diagnosed until 2004, well after her release from service. Her symptoms of apnea included persistent daytime hypersomnolence. The examiner concluded that the narcolepsy, which had been present at the time of her entrance onto active duty, had not been aggravated by that duty. The data clearly demonstrated that her narcolepsy was congenital, particularly in light of its early onset. There were noted to be no environmental exposures which would cause/aggravate this condition in an acquired fashion. The apnea had not pre-existed service; rather, it was not found until well after her discharge, in 2004. The examiner opined that her sleep apnea had correlated with her post-service weight gain. After a careful consideration of all the evidence of record, it is found that entitlement to service connection for the diagnosed sleep apnea is not warranted. The Veteran appears to have two sleep disorders, namely narcolepsy and sleep apnea. She has not argued that the pre-existing narcolepsy is related to her service, or that it was aggravated by that service. However, the December 2012 VA examiner had found that this disorder, while present prior to service, was not aggravated by that service. The examiner commented that narcolepsy was not the type of disorder that was made worse by environmental exposure or pressures. The Veteran, however, has argued that her diagnosed sleep apnea was caused by her service. Unfortunately, this disorder was never noted in service, nor were there were any symptoms in service that have been attributed to apnea. The evidence of record clearly indicates that sleep apnea was not diagnosed until 2004, some 24 years after her discharge from service. Moreover, the VA examiner opined in December 2012 that the sleep apnea was related to her post-service weight gain and not to her remote period of service. Based on this evidence, it simply cannot be found that the diagnosed sleep apnea is related to the Veteran's period of service. Significantly, there is no evidence of record, other than the Veteran's statements, that her sleep apnea is related to her period of service. There is no competent opinion of record that provides for such a relationship. The VA examination performed in December 2012, after reviewing the Veteran's entire record, found that the Veteran's diagnosed sleep apnea was not related to her period of service; there is no evidence to the contrary. The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or a diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). There is no indication in the record that the Veteran is competent to render a medical opinion as to the etiology of the diagnosed sleep apnea. In this case, the Board has determined that the medical evidence is more probative of the issue, and that it outweighs the lay statements. Accordingly, the Veteran's claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral foot disorder, diagnosed as plantar fasciitis, is denied. Entitlement to service connection for sleep apnea is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs