Citation Nr: 1337666 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-03 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a bilateral foot disability to include pes planus and hallux valgus. 2. Entitlement to service connection for a left shoulder disorder, to include impingement syndrome, supraspinatus tendinosis, and arthritis. 3. Entitlement to service connection for impingement syndrome with arthritis, status post decompression, of the right shoulder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1990 to December 1990 and from December 2003 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Jackson, Mississippi Regional Office (RO). The Veteran testified at a hearing held before a decision review officer (DRO) in August 2008. A hearing transcript is of record. The issues on appeal were previously remanded by the Board in April 2013 for further evidentiary development of requesting outstanding service treatment records. This was accomplished, and the claims were readjudicated in a September 2013 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran has currently diagnosed pes planus and hallux valgus. 2. The Veteran's pes planus first manifested in service. 3. The Veteran has currently diagnosed impingement syndrome, supraspinatus tendinosis, and arthritis of the left shoulder. 4. Resolving reasonable doubt in the Veteran's favor, symptoms of a left shoulder disorder have been continuous since service separation. 5. Clear and unmistakable evidence demonstrates that the Veteran had a right shoulder condition which pre-existed service entrance. 6. Clear and unmistakable evidence demonstrates that the Veteran's pre-existing right shoulder condition was not permanently aggravated beyond a normal progression by service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability to include pes planus and hallux valgus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. The criteria for service connection for a left shoulder disorder, to include impingement syndrome, supraspinatus tendinosis, and arthritis have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for impingement syndrome with arthritis, status post decompression, of the right shoulder have not been met. 38 U.S.C.A. §§ 101, 1110, 1111, 1113, 1132, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA notify the appellant of the information and evidence needed to substantiate and complete his claims, and of what part of that evidence he is to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). As the Board is granting service connection for pes planus and a left shoulder disorder, those claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). As for the claim for service connection for a right shoulder disorder, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the Veteran with the notice required under VCAA by letters dated in August 2005 and July 2006. These notifications complied with the VCAA notice requirements of identifying the evidence necessary to substantiate a claim, and the relative duties of VA and the claimant to obtain evidence. The July 2006 notice included appropriate notice regarding disability ratings and effective dates. See Dingess/Hartman, 19 Vet. App. 473. Therefore, the Board finds that VA has satisfied its duty to notify the Veteran. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. In connection with the current appeal, available service treatment records have been obtained. Pursuant to the Board's April 2013, the RO made reasonable efforts to obtain outstanding service treatment records, to include a May 2005 service treatment record referenced in the October 2012 VA examination report. See August 2013 RO formal finding of unavailability. Further, the RO arranged for a VA examination in October 2012 to assist in determining, in pertinent part, the nature and etiology of the Veteran's right shoulder disorders. For reasons discussed in detail below, the Board finds the October 2012 VA examination adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records and the Veteran's history and complaints. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Laws and Regulations 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). The Veteran's bilateral shoulder disorders include a diagnosis of arthritis which is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the right and left shoulder claims currently on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). On the other hand, the conditions of pes planus and hallux valgus are not "chronic disease[s]" listed under 38 C.F.R. § 3.309(a) and will be adjudicated using the general principles of service connection. Generally, 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). Congenital or developmental "defects" are not "diseases" or "injuries" within the meaning of applicable legislation, and therefore service connection for them is generally precluded by regulation. 38 C.F.R. § 3.303(c). However, in limited circumstances service connection may be granted for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). The correct standard for rebutting the presumption of soundness under 38 U.S.C.A. § 1111 requires that the government show by clear and unmistakable evidence both that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. The United States Court of Appeals for the Federal Circuit noted that the lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F. 3d 1089, 1096-97 (Fed. Cir. 2004). 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, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service Connection for a Bilateral Foot Disability During the July 2007 DRO hearing, the Veteran reported that he did not have pes planus until he went overseas and walked in military boots during service. Specifically, he stated that he walked on big rocks and had problems with his feet. According to the Veteran, he was told that he had flat feet and he was given inserts. Initially, the Board finds that the Veteran has currently diagnosed pes planus and left foot mild hallux valgus. See July 2006 VA treatment record, October 2006 VA treatment record, and October 2012 VA examination report. Next, the Board finds that the Veteran did not have a pre-existing foot disorder prior to service. Despite numerous efforts by the RO, the Veteran's service entrance examinations in October 1990 and December 2003 are not available. As such, the Board finds that the evidence is not clear and unmistakable that a foot disorder pre-existed service. Further, during the July 2007 DRO hearing, the Veteran specifically testified that he did not have pes planus prior to service. Accordingly, the Board finds that presumption of soundness as to the Veteran's feet applies in this case. A review of the evidence of record reveals that the Veteran was first diagnosed with pes planus in service in a May 2005 service treatment record. The Board finds that the evidence of record is in equipoise as to whether the Veteran's pes planus, diagnosed in service, was a congenital deformity. As noted above, a May 2005 service treatment record, referenced in detail by the October 2012 VA examiner, is not of record and is unavailable for review by the Board. That notwithstanding, given the detail provided by the October 2012 VA examiner in regard to the May 2005 service treatment record, the Board will consider the statements provided by the VA examiner to be consistent with the actual May 2005 missing service treatment record. Specifically concerning the issue of pes planus, the October 2012 VA examiner reported that from September 2004 to September 2006, only a single May 2005 note mentioned a complaint regarding the Veteran's feet. The May 2005 treatment note documented the Veteran's complaints of bilateral foot pain. A foot examination was conducted and revealed normal results with the sole exception of a general statement of pes planus of both feet. Although a radiograph was not taken, the Veteran was diagnosed as having "congenital pes planus" and was given arch supports. The Board finds that this evidence weighs in favor of a finding that the Veteran's pes planus was congenital, and thus, not warranting of service connection. See 38 C.F.R. § 3.303(c) (congenital "defects" are not "diseases" or "injuries" within the meaning of applicable legislation, and therefore service connection for them is generally precluded by regulation). The evidence weighing against a finding of a congenital pes planus deformity includes available service treatment records and the October 2012 VA examination report. The Board notes that "congenital" means "existing at, and usually before, birth." See Dorland's Illustrated Medical Dictionary 410 (31st ed. 2007). This definition suggests to the Board that if the Veteran's pes planus existed at birth, it should have been noted and diagnosed on various occasions during service; however, in-service post-deployment evaluations and a January 2005 medical examination report do not reveal any congenital foot deformities, to include pes planus. Further, the October 2012 VA examiner diagnosed the Veteran with "pes planus," and not congenital pes planus. The October 2012 VA examiner further stated that "upon review and consideration of the entire body of evidence," the Veteran did currently have "flat feet" shown by gold-standard weight bearing radiograph; however, the VA examiner noted that the onset date was not clear. The Board finds that the examiner's opinion that the onset date of pes planus was unclear is further evidence that the pes planus was not congenital (i.e., existing prior or since birth). The VA examiner also explained that although the clinician in May 2005 found that the Veteran had flat feet, the Veteran's podiatrist made no mention of pes planus or flat feet. As specifically discussed by the October 2012 VA examiner, the Board acknowledges that the Veteran's medical history noting both positive and negative diagnoses for pes planus lacks some consistency. That notwithstanding, the Board finds that the Veteran has currently diagnosed pes planus as confirmed by gold-standard weight bearing radiograph conducted by the October 2012 VA examiner. Further, for the reasons discussed in detail above, the Board finds that, resolving reasonable doubt in the Veteran's favor, pes planus was not a congenital deformity and was first manifested during service. For these reasons, the Board finds that service connection is warranted for pes planus. See 38 C.F.R. § 3.303(d). Service Connection for a Left Shoulder Disorder The Veteran reported that he started receiving treatment for his left shoulder during service in 2005. Specifically, he expressed that his left shoulder bothered him but it did not really start bothering him until after he fell on his shoulder in 2005. He also stated that he experienced pain in his shoulder while serving in Iraq from holding weapons in the same place for a long time. The Board finds that the Veteran has the following currently diagnosed left shoulder disorders, including impingement syndrome, supraspinatus tendinosis, and arthritis. See September 2005 VA examination report, April 2009 VA treatment note, and October 2012 VA examination report. Next, although symptoms of a left shoulder disorder were not chronic in service and did not manifest to a compensable degree within one year of service separation, the Board finds that the evidence of record is in equipoise as to whether the Veteran has experienced continuous symptomatology of a left shoulder disorder since service separation. As noted by the October 2012 VA examiner, the May 2005 in-service treatment note revealed that the Veteran reported bilateral shoulder pain associated with falling down the stairs one month prior. Following service separation, the Veteran complained of left shoulder pain in the September 2005 VA examination report conducted two months after service separation. The September 2005 VA examiner diagnosed impingement syndrome of the left shoulder. In a February 2007 post-service VA treatment note, conducted in connection with a routine follow-up, the Veteran stated that he was doing "ok," except for left shoulder pain which he associated with a fall during service. A following February 2008 VA treatment record revealed that the Veteran had limited external and internal rotation of the left shoulder. In a December 2008 post-service VA treatment record, the Veteran was seen for "chronic" shoulder pain. The Veteran reported an old left shoulder injury and upon examination, range of motion was limited and a palpable "pop" was heard with further passive abduction to overhead position. Review of a November 2007 MRI report revealed probable tendonitis of the supreaspinatus tendon of the left shoulder. In an April 2009 VA treatment note, the Veteran was diagnosed with left shoulder supraspinatus tendinosis. In October 2009, a VA primary care follow-up note revealed a tender left AC joint and active range of motion limited to horizontal elevation with pain and slow movement. The Veteran again reported left shoulder pain since service separation in the most recent October 2012 VA examination report. For these reasons, the Board finds that the evidence of record is in equipoise as to whether symptoms of a left shoulder disorder were continuous since service separation. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a left shoulder disability is warranted. 38 C.F.R. § 3.102. Service Connection for a Right Shoulder Disorder Regarding the right shoulder, the Veteran has reported that his right shoulder disorder pre-existed service entrance. Although the Veteran has stated that he underwent right shoulder surgery prior to service, he contends that the pre-existing right shoulder disorder was aggravated by physical training in service. Service treatment records reveal that in January 2005, the Veteran reported right shoulder reconstruction surgery prior to service. In the September 2005 VA examination for the joints, the Veteran provided a history of arthroscopic surgery in 1996 with a post-operative diagnosis of impingement syndrome. As noted above, service entrance examination reports are not available; however, the Board finds that clear and unmistakable (obvious and manifest) evidence, including the Veteran's own reported history, demonstrates that right shoulder disorder (impingement syndrome) pre-existed service entrance. As such, the presumption of soundness at service entrance does not apply. The Board further finds that clear and unmistakable evidence demonstrates that the Veteran's pre-existing right shoulder disorder did not permanently increase in severity during service, that is, it was not "aggravated" by service. In this regard, service treatment records are generally negative for complaints, diagnoses, and treatment for a right shoulder disorder. As noted by the October 2012 VA examiner, the Veteran complained of bilateral shoulder pain in May 2005 after falling down the stairs one month prior; however, the bilateral shoulder examination was entirely normal. The May 2005 service treatment record noted that the Veteran had joint pain localized to the shoulders; however, an opinion as to aggravation of the pre-existing right shoulder disorder was not rendered. The remaining service treatment records do not demonstrate any follow-up treatment or evidence of aggravation of the pre-existing right shoulder disorder. In a September 2005 VA medical examination report, conducted approximately two months after service separation, the Veteran reported continuous pain in both shoulders and tingling on the right five fingers of the right hand. According to the Veteran, pain in his shoulders had been present for one year. The September 2005 VA medical examiner provided a diagnosis of impingement syndrome of the right shoulder, mild arthritis of the acromioclavicular joint on the right, and status post operative arthroscopic surgery of the right shoulder with capsulorrhaphy anterval closure and subacromial decompression. The September 2005 VA examiner did not provide an opinion as to whether the Veteran's pre-existing right shoulder disability was aggravated by service. The October 2012 VA examiner noted that the claims file was reviewed. After conducting a physical examination of the right shoulder, the examiner stated that the right shoulder ligament reconstruction pre-existed service. The October 2012 examiner then opined that the right shoulder disorder, which clearly and unmistakably pre-existed service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that there were no complaints for any shoulder pain or shoulder problem on any of the multiple examinations until the Veteran's evaluation in May 2005. It was noted that the Veteran were seen multiple times, including emergent hospitalization for herniorrhaphy in 2004, and made no complaint of shoulder pain before the single evaluation of May 2005. The VA examiner further noted that although the Veteran complained of shoulder pain in the May 2005 service treatment note, a bilateral shoulder examination was normal. It was also noted that the Veteran had multiple evaluations including post-deployment evaluation that made no mention of a right shoulder problem. The Board finds the October 2012 VA medical opinion to be highly probative as to whether the Veteran's pre-existing right shoulder disorder was clearly and unmistakably aggravated beyond its natural progression during service. Post-service VA treatment records do not reveal any evidence of aggravation of the pre-existing right shoulder disorder due to service. The Board has also considered the Veteran's statements in support of the claim for service connection for a right shoulder disorder based on the theory of aggravation during service. The Board finds that, while the Veteran may have experienced a flare-up of shoulder pain during service (i.e., joint pain localized to the shoulders), such temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, and based on all the evidence of record, lay and medical, the Board finds that the Veteran's right shoulder disorder clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service. The Board is aware of the burden on VA to demonstrate, by clear and unmistakable evidence, that the pre-existing disability was not aggravated by service, and the Board has applied this legal standard in this case. The evidence in this case meets this high standard. As the standard is clear and unmistakable evidence on VA to rebut the presumption of sound condition at service entrance, a burden which has been met for the reasons explained, the rule of resolving reasonable doubt in the Veteran's favor is not applicable in this case. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. ORDER Service connection for a bilateral foot disability to include pes planus and hallux valgus is granted. Service connection for a left shoulder disorder, to include impingement syndrome, supraspinatus tendinosis, and arthritis is granted. Service connection for impingement syndrome with arthritis, status post decompression, of the right shoulder is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs