Citation Nr: 1337145 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 06-37 265A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right posterior tibial tendinitis. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for fibromyalgia. 4. Entitlement to service connection for a left leg tibial tendonitis. 5. Entitlement to service connection for a left hand disorder. 6. Entitlement to an increased rating for a right knee disorder, currently rated as 10 percent disabling. 7. Entitlement to an increased rating for pes planus, currently rated as 30 percent disabling. 8. Entitlement to an increased rating for gout, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1981 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from prior rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the Veteran previously requested a personal hearing before a Veterans Law Judge seated at the RO. In October 2011, however, prior to any hearing before the Board, he filed a written statement withdrawing his hearing request. This appeal was previously presented to the Board in March 2012, and again in January 2013. On each occasion, it was remanded for additional development. Specifically, the Board ordered the agency of original jurisdiction (AOJ) to afford the Veteran a VA medical examination, and to locate correspondence which the Veteran had allegedly sent to VA regarding his claims. The requested examination was afforded the Veteran in June 2013. The AOJ also attempted to locate the requested document, but was unsuccessful. Its efforts, however, have been documented for the record. Thus, the required development has been substantially completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has also perfected for appeal his service connection claims for pseudofolliculitis barbae and for disabilities of the bilateral hips and left shoulder. In a July 2013 rating decision, the agency of original jurisdiction granted service connection for pseudofolliculitis barbae, a left shoulder injury with bursitis, and for disorders of the left and right hip. Because the appellant was awarded service connection for these disabilities, they are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The issues of service connection for tinnitus, fibromyalgia, and a left hand disability, and increased ratings for gout, bilateral pes planus, and a right knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran sustained numerous injuries of the bilateral ankles, to include tendonitis, during active service. 2. The Veteran has current disabilities of bilateral posterior tibial tendonitis which had their onset during service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, posterior tibial tendonitis of the right ankle was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. Resolving all reasonable doubt in the Veteran's favor, posterior tibial tendonitis of the left ankle was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.326(a) (2013). In the present case, the Board is granting the claims for service connection for bilateral posterior tibial tendonitis. This decision constitutes a full grant of the benefits decided herein; therefore, no further discussion regarding VCAA notice or assistance duties is required. Service Connection - Right Posterior and Left Leg Tibial Tendinitis The Veteran seeks service connection for bilateral tibial tendonitis. He contends he originally injured his right and left ankles during service, resulting in current disorders of the bilateral tibial tendons. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). For certain disabilities listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); 38 C.F.R. § 3.303(b) potentially applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, as enumerated within 38 C.F.R. § 3.309, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. Review of the service treatment records confirms that the Veteran sustained numerous ankle injuries in service. In August 1981, he sought medical treatment for the left knee and ankle, complaining of recurrent pain and laxity, especially with walking. A possible left ankle strain was diagnosed. The Veteran sought treatment for right ankle pain following jogging in November 1987. A soft tissue injury/mild sprain was diagnosed. In December 1989, he reported right foot and ankle pain. He stated he had played basketball the prior evening, but denied any specific injury. A possible strain was diagnosed. In February 1990, he was seen for a twisting injury of an unspecified ankle, and a mild ankle sprain was diagnosed. The Veteran fractured his right ankle in September 1991, requiring an ankle cast and a temporary period of light duty and no physical training. A December 1993 clinical treatment notation confirmed a history of degenerative joint disease, stable, of the bilateral ankles. The Veteran was seen in July 1996 for a left ankle injury, not otherwise defined. He was given a temporary exemption from physical training and instructed in strengthening exercises. In March 1999, he reported bilateral ankle pain, worsening with use, especially jogging. A positive history of arthritic changes was noted. No diagnosis was rendered at that time. The Veteran reported left foot and ankle pain in December 2000 after jogging. Tendonitis was diagnosed. Thus, the service treatment records reflect various instances of strains, sprains, and tendonitis of both ankles. Additionally, the Veteran was diagnosed with a right ankle fracture in 1991, during active duty service. In-service injuries of both ankles are thus established in the record. Following service, the Veteran continued to report both pain and laxity of the bilateral ankles, according to February 2001 and July 2003 VA general medical examination reports. Laxity was confirmed on both occasions. X-rays of the ankles confirmed bilateral degenerative joint disease of the ankles. In an April 2001 rating decision, the Veteran was awarded separate service connection awards for degenerative changes of the left ankle and for a right ankle sprain. In an August 2003 rating decision, these service connection awards were recharacterized as traumatic arthritis of the right and left ankles. The Veteran underwent a talonavicular fusion of the left ankle and foot in March 2003. Thereafter, he continued to report bilateral ankle pain to both private and VA examiners. A private podiatrist, R.L.C., D.P.M., diagnosed the Veteran with bilateral posterior tibial tendonitis on evaluation in June 2008. On the question of relationship of the current bilateral posterior tibial tendonitis to service, the evidence shows that the Veteran sustained several injuries to both ankles in service, and was in fact diagnosed with ankle tendonitis therein. Following service, the Veteran continued to report bilateral ankle pain and instability, and laxity was noted in 2001 and 2003 on physical evaluation of the ankles. Posterior tibial tendonitis was diagnosed by a private examiner in 2008. Such medical evidence, in addition to the Veteran's lay assertions of in-service onset and recurrence, also establishes in-service onset of tendonitis and tends to relate the currently diagnosed bilateral posterior tibial tendonitis to the tendonitis diagnosed in service. In the absence of evidence to the contrary, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the current bilateral posterior tibial tendonitis was directly incurred in service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for posterior tibial tendonitis of the right ankle is granted. Service connection for posterior tibial tendonitis of the left ankle is granted. REMAND According to a June 2013 VA examination report, the Veteran, an Air Force retiree, continues to receive treatment at an air base in San Antonio, Texas. Presumably, this base is Randolph Air Force Base, located in San Antonio. The RO has previously requested records from Randolph Air Base in 2009; however, at his examination, the Veteran reported medical treatment as recently as 2012, subsequent to the RO's most recent request. As VA has been made award of pertinent medical treatment records which are in its constructive possession and have not yet been obtained, remand is required to obtain those records prior to any final adjudication of the Veteran's pending claims on the merits. Accordingly, the case is REMANDED for the following action: 1. Obtain any treatment records not already obtained from the medical facility at Randolph Air Force Base, or any other facility at which the Veteran has received recent treatment for his claimed disabilities. If no such records are available, that fact must be noted for the record. 2. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs