Citation Nr: 1330163 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-37 637 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder. 2. Entitlement to service connection for rashes on arms, legs, face, claimed as due to an undiagnosed illness (skin disability). 3. Entitlement to service connection for a claimed right elbow disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1991 to September 1991, from December 2003 to January 2005, from January 2005 to June 2005, and from February 2009 to May 2010. He also served in the Reserve. The Veteran has been awarded the Bronze Star Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the RO. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal. A review of the Veterans Benefits Management System (VBMS) reveals no pertinent documents. The issues of service connection for a skin disorder and a right elbow condition are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The currently demonstrated bilateral stage II posterior tibial tendon dysfunction of the foot is shown as likely as not to have had its clinical onset during the Veteran's period of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his bilateral foot disability manifested by stage II posterior tibial tendon dysfunction is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION To the extent that the action taken hereinbelow is favorable to the Veteran, a full discussion of compliance with VA's duty to notify and assist is not required at this time. Law & Analysis 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). 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Board finds that service connection for a bilateral foot disability is warranted for the reasons set out below. The Veteran contends that his bilateral pes planus was a direct cause of his deployment in Iraq in 2004 and did not exist prior to service. A June 1988 Army ROTC examination noted normal feet. The accompanying report of medical history showed that the Veteran indicated that he had foot trouble, but explained that it was chronic athlete's foot, not pes planus. Thus, the RO was incorrect in identifying the Veteran's foot condition as pre-existing. The service treatment records indicate complaints of a two-month history of bilateral heel pain and a diagnosis of bilateral pes planus and bilateral foot pain secondary to poor arches in September 2004. The VA treatment records contain a diagnosis of flat feet and painful pes planus in 2006 and 2008. The June 2010 VA examination evaluated the Veteran's foot disability, to include X-ray studies, which showed bilateral pes planus. However, the Board notes that the claims folder was unavailable for review at the time of the examination, and no opinion was provided by the VA examiner. In July 2010, the Veteran was afforded a VA fee basis examination in order to evaluate the claimed back and foot disabilities. Dr. D.B. administered the examination and provided an etiological opinion based upon a complete review of the Veteran's claims folder (to include all pertinent service treatment records), lay statements, and examination findings. Dr. D.B. considered the Veteran's complaints of bilateral foot pain and diagnosis of bilateral pes planus in service. He noted the Veteran's statement that his foot pain was exacerbated by being in a theater and carrying his heavy rucksack. He noted that the military physicians ordered orthotics for him as well as prescribed pain medication. He considered the Veteran's reports of past and present bilateral foot pain. Upon examination, Dr. D.B. noted obvious calcaneovalgus, forefoot abduction, and loss of the medial longitudinal arch with pain over the posterior tibial tendon and over the sinus tarsi, bilaterally. The Veteran's feet were supple and he had some pain with resisted plantar medial inversion of his ankle. Ultimately, he diagnosed the Veteran with stage II posterior tibial tendon dysfunction, bilaterally. Dr. D.B. recommended that the Veteran wear arch supports in his shoes to try and protect his tendons and indicated that eventually, the Veteran night need surgery for his foot disability. Dr. D.B. concluded his report with a medical opinion that the major cause for the need for treatments (for back and feet) was due to the Veteran's military involvement and that it was more likely than not that the military had caused a direct injury to the Veteran's lumbar spine and his feet (the Veteran is already service-connected for his back disability). The Board finds Dr. D.B.'s examination to be adequate as he considered the entire evidence of record, to include service records and the Veteran's statements, and made current findings considering the Veteran's medical history. Considering the report in whole, his positive nexus opinion is based on a consideration of the Veteran's bilateral foot problems in service and current findings as diagnosed. Dr. D.B. also considered the aggravating factors in service that had contributed to the Veteran's foot disability. Thus, the Board assigns significant probative value to Dr. D.B.'s medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (threshold considerations in weighing the probative value of medical opinions include the qualifications of the person opining, and most of the probative value from such opinions come from their reasoning). Accordingly, based on this record, the Board finds the evidence to be in relative equipoise in showing the current bilateral stage II posterior tibial tendon dysfunction of the feet as likely as not is due to repetitive injuries sustained during the Veteran's extensive service. In resolving all reasonable doubt in the Veteran's favor, service connection for a is warranted. ORDER Service connection for a bilateral foot disability manifested by stage II posterior tibial tendon dysfunction is granted. REMAND The Board finds that further development is necessary prior to adjudication of the merits of the claims of service connection for a skin disorder and a right elbow condition. The Board notes that in June 2010, the Veteran was afforded a VA Gulf War Examination in connection with his claims. However, the examination report indicated that claims folder review was not requested. Although the report indicated that VA medical records were reviewed, the Board recognizes the importance of the VA examiner reviewing service medical records, particularly in light of claims for service connection. Moreover, the Board notes that the VA examiner was unable to consider the fact that the Veteran injured his right elbow in service and the findings of tennis elbow in service. The examiner also found that no skin rashes or lesions were present at the time of the examination. However, small white (hypopigmentation or leukoplakia) areas of skin at left lateral side of back and back of right arm were noticed upon examination. We still need an opinion considering whether such skin condition, claimed as due to an undiagnosed illness, is related to an event or incident of active service. The VA regulations provide that compensation will be paid to a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability if that disability (a) became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011, and (b) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (2012). For VA purposes, a qualifying chronic disability presently means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; or (B) The following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms (chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). The term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. Id. Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) Fatigue, (2) Unexplained rashes or other dermatological signs or symptoms, (3) Headache, (4) Muscle pain, (5) Joint pain, (6) Neurological signs and symptoms, (7) Neuropsychological signs or symptoms, (8) Signs or symptoms involving the upper or lower respiratory system, (9) Sleep disturbances, (10) Gastrointestinal signs or symptoms, (11) Cardiovascular signs or symptoms, (12) Abnormal weight loss, and (13) Menstrual disorders. 38 C.F.R. § 3.317(b) . Compensation shall not be paid under this section if there is affirmative evidence that an undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War, if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness, or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The Board will order new VA examinations to ascertain current findings and request a medical opinion that is based on the evidence of record. Accordingly, these remaining matters are REMANDED for the following action: 1. The RO should take appropriate action to contact the Veteran in order to have him identify any outstanding VA and/or private treatment records referable to the claim skin and right elbow conditions. The Veteran should be provided with the necessary written releases for any identified clinical records. If any of the identified records cannot be obtained, the AOJ should notify the Veteran of such and describe the efforts used in requesting these records. 2. The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed skin disorder (namely, rashes on various parts of the body). The claims folder should be made available to the examiner for review. After examining the Veteran and reviewing the entire record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a currently demonstrated skin disability had its clinical onset during service or otherwise is due to an event or incident of his service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The RO also should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed right elbow condition. The claims folder should be made available for review by the examiner. After examining the Veteran and reviewing the entire record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current right elbow disability had its clinical onset during service or otherwise is due to an injury or other event or incident of his service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs