Citation Nr: 1529124 Decision Date: 07/08/15 Archive Date: 07/15/15 DOCKET NO. 13-35 844 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral plantar fasciitis. 2. Entitlement to service connection for tinea pedis, right foot. 3. Entitlement to service connection for a heart disability. 4. Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.J. Turnipseed INTRODUCTION The Veteran served on active duty from March 1976 to March 1996. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2011 rating decision in which the RO, inter alia, denied service connection for the claimed disabilities. In April 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2013. The Board notes that, while the RO denied service connection for tinea pedis affecting both the right foot and the left foot in the January 2011 rating decision denied, the Veteran only appealed the RO's determination as to the right foot. See April 2011 NOD. The Board notes that, in addition to the paper claims file, the Veteran has paperless, electronic files in the Veterans Benefits Management System (VBMS) and the Virtual VA claims processing system. These files contain evidence that is either duplicative of the evidence in the paper file or is irrelevant to the issues on appeal. For reasons discussed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. The Veteran is seeking service connection for bilateral plantar fasciitis and right foot tinea pedis, asserting that the disabilities were diagnosed and treated during military service and have continued since that time. The Veteran's service treatment records (STRs) show that, in March 1977, he complained of pain in both feet that had persisted for three weeks. At that time, he also reported having redness between his toes, further noting that his feet became numb from the cold while in the field. The initial assessment was athlete's foot with possible first stage trenchfoot, while he was also thought to have a possible cold weather injury (although this was not subsequently confirmed by clinical evaluation or diagnosis). In February 1990, the Veteran was diagnosed with plantar fasciitis after complaining of soreness in the 5th metatarsals and bottom of both feet. While the STRs do not contain any subsequent complaints or treatment for athlete's foot or plantar fasciitis, the Veteran reported having foot trouble on the report of medical history completed in conjunction with his November 1955 separation examination. In this regard, the examining physician noted that the Veteran had been treated for a cold weather injury affecting both feet in 1977 and further noted that his feet were normal on clinical examination. In November 2010, a VA physician reviewed the record, examined the Veteran, and rendered a diagnosis of bilateral plantar fasciitis and tinea pedis. The VA examiner opined, however, that Veteran's bilateral plantar fasciitis and tinea pedis are not caused by or related to service. The VA examiner explained that both disabilities resolved during service, that the November 1995 separation examination was negative for plantar fasciitis or tinea pedis, and that there was no chronicity and continuity of care for plantar fasciitis or tinea pedis for 19 and 33 years after service, respectively. The Board finds the November 2010 VA opinion is inadequate because the opinion does not take into account the Veteran's statements regarding continuity of symptomatology following service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). Indeed, while the VA examiner noted there was no chronicity or continuity of care of plantar fasciitis or tinea pedis for 19 and 33 years after service, respectively, the Veteran has consistently reported that he continued to experience pain in both feet after service and also reported having continued problems with athlete's foot since service, which he treated with over-the-counter medication. In this regard, the Board notes that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997). The Board also notes that, given the medical evidence of a diagnosis of and treatment for plantar fasciitis and tinea pedis during service, competent lay evidence of ongoing symptoms of both disabilities since service, and current diagnosis of plantar fasciitis and right foot tinea pedis, a medical opinion is needed to establish whether the current disabilities are chronic residuals of the disabilities diagnosed during service, including athlete's foot with possible first stage trenchfoot, possible cold weather injury, and plantar fasciitis. See Kahana, supra; Woehlaert, supra. Hence, further medical opinion is this regard is warranted. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The Veteran is also seeking service connection for a heart disability, asserting that he was treated for a heart disability in service and has continued to receive treatment for this disability since service. The STRs show that, in November 1987, the Veteran was diagnosed with chest wall discomfort and probable costochondritis after complaining of chest pain for three days. An EKG was within normal limits at that time and the Veteran was ordered back to duty. There are no subsequent complaints or treatment for chest pain or a heart disability reflected in the STRs, including at his November 1995 separation examination. However, on the November 1995 report of medical history, the Veteran reported that he "did not know" if he had pain or pressure in his chest, without further comment or notation from the Veteran or examining physician. Post-service records show that, as early as January 2000, the Veteran complained of chest rightness and pain, with radiation to the left arm, that was attributed to gastroesophageal reflux. In September 2001, he complained of heartburn and chest wall pain that had been intermittently present for five years. An EKG was performed at that time, which was normal. In November 2001, the Veteran's diagnosis of GERD was continued but, because he complained of shortness of breath with exertion, an echocardiogram (echo) was performed, which revealed mild aortic stenosis and insufficiency. Post-service records show that he has continued to complain of difficulty breathing, dyspnea on exertion, and fatigue that has worsened over the years. The Veteran has undergone several tests, including EKGs, chest x-rays, and echoes, and he has been diagnosed with difficulty breathing, fatigue, diastolic dysfunction, and aortic valve dysfunction. See April 2010 treatment record. In November 2010, the Veteran was afforded a VA examination where he was diagnosed with a pre-existing bicuspid aortic valve, moderate aortic stenosis, and mild to moderate aortic insufficiency secondary to the bicuspid aortic valve. See November 2010 VA examination. The VA examiner opined that the Veteran's heart condition was not caused by or related to service, noting that the Veteran's in-service chest wall discomfort due to costochondritis resolved and that the report of his November 1995 retirement physical was silent for a heart condition. The November 2010 VA opinion is inadequate because the VA examiner did not consider the Veteran's report of continued heart problems since service, which is considered competent lay evidence of such. See Dalton, supra. Nor did the examiner provide a clear rationale in support of his conclusion that the Veteran's bicuspid aortic valve pre-existed service. In this regard, the Board notes that a Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted on the entrance examination report. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2014). The presumption of soundness is rebutted where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Id.; VAOPGCPREC 3-03 (July 16, 2003), 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). In determining whether there is clear and unmistakable evidence that an injury or disease existed prior to service, the Board must consider the history recorded at the time or examination together with all other material evidence, including medical judgments, accepted medical principles, and the Veteran's history of clinical factors. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). In this case, no complaints or abnormal findings were noted with respect to the heart on the entrance examination, and thus the Veteran is presumed to be in sound condition upon entry into service. Id. However, the Board notes that the VA examiner may have determined that the Veteran's bicuspid aortic valve pre-existed service because it is of congenital origin. Service connection may be granted for diseases, but not defects, of congenital, developmental or familial origin. VAOGCPREC 82-90 (July 18, 1990), 55 Fed. Reg. 45711 [a reissue of General Counsel Opinion 01-85 (March 5, 1985)]; VAOPGCPREC 67-90 (July 18, 1990), 55 Fed. Reg. 43253 (1990). In differentiating the two categories, VA's Office of General Counsel has stated that, when viewed in the context of 38 C.F.R. § 3.303(c), "the term 'defects,' would be definable as structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 67-90. In contrast, a "disease" is referred to a condition considered capable of improving or deteriorating." Id. The presumption of soundness applies where congenital diseases are not noted at entry and, if not noted, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. See Monroe v. Brown, 4 Vet. App. 513, 515 (1993). However, the presumption of soundness does not apply to congenital defects, because such defects "are not diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111. 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir.2003) (holding that the presumption of soundness does not apply to congenital defects)). Nevertheless, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur during service, service connection may be warranted for the resulting disability. Id. In short, service connection is available for congenital diseases, but not defects, that are aggravated in service, unless a disease or injury was superimposed upon the congenital defect during service. Quirin, 22 Vet. App. at 394; Monroe v. Brown, 4 Vet. App. 513, 515 (1993); VAOPGCPREC 82-90. In cases where the appellant seeks service connection for a congenital condition, VA must indicate whether the condition is a disease or defect and discuss the applicability of, and if appropriate, rebuttal of, the presumption of soundness. Quirin, 22 Vet. App. at 394-397. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. Given the foregoing, the Board finds that additional medical opinion is needed in order to clarify whether the Veteran's bicuspid aortic valve is a congenital defect or disease. If the bicuspid aortic valve is considered a defect, the VA examiner must also address whether any disease or injury was superimposed on that condition during service, particularly given the complaints of chest wall pain and diagnosis of costochondritis during service. Further, the Veteran is seeking service connection for a respiratory condition, also asserting that this disability was treated during service and has persisted since that time. The STRs show that, from 1978 to 1990, the Veteran was diagnosed with a cold and upper respiratory infections on several occasions after complaining of sore throat, runny nose, and productive cough. See STRs dated January 1978, July 1979, February 1980, and September 1990. Beginning in May 1994 and thereafter, the Veteran continued to complain of respiratory trouble that was manifested by severe cough and difficulty breathing, and he was diagnosed with upper respiratory infection and episodic laryngospasm. See STRs dated May, June, August, and September 1994. The Veteran did not complain of shortness of breath or chronic cough at his separation examination in November 1995, and clinical examination of his lungs and chest were normal at that time. As noted, the Veteran has asserted that he continued to experience respiratory problems after service and post-service treatment records show that, as early as January 2003 and thereafter, he complained of varying symptoms, including productive cough, sore throat, and shortness of breath, which were attributed to an upper respiratory infection, bronchitis, and aortic calcification. In November 2010, the VA examiner diagnosed the veteran with exertional dyspnea with moderate restrictive lung disease and mild decrease in diffusing capacity. He opined, however, that the Veteran's respiratory disability was not caused by or related to service because the Veteran's in-service episodic laryngospasm resolved, there was normal spirometry during service, and the November 1995 retirement examination was silent for a lung, pulmonary, or breathing problem. Instead, the examiner opined that the Veteran's respiratory disability is most likely due to a combination of his body mass index (BMI), natural age, and aortic valve disease. The November 2010 VA opinion is inadequate because the VA examiner did not consider the Veteran's report of continued heart problems since service or the evidence showing continued, similar symptoms after service. See Dalton, supra. Therefore, on remand, the Board will request that the examiner provide an addendum opinion that considers all evidence of record, including the competent lay evidence of continuity of symptomatology since service. In addition, given that the VA examiner (and the April 2003 post-service treatment record) attributed the Veteran's respiratory disability, at least in part, to his heart condition, which is being remanded herein, the Board finds that the claim for a respiratory disability is inextricably intertwined with the claim for a heart condition and that, at this juncture, a decision on the respiratory disability would be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined if one claim could have significant impact on the other). Hence, this matter is being remanded, as well. Prior to arranging to obtain further medical opinions, to ensure that all due process requirements are met and that the record is complete, the AOJ should undertake efforts to obtain all outstanding, pertinent records of treatment for his bilateral plantar fasciitis, right foot tinea pedis, heart, and respiratory disabilities. Notably, the Veteran has indicated that he receives all treatment from the Naval Air Station in Pensacola, Florida. Hence, the AOJ should give the Veteran another opportunity to present any additional information and/or evidence pertinent to the claims for service connection, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2014); but see 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization for the AOJ to obtain, outstanding pertinent records-particularly, from the above-noted facility. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private ((non-VA) medical records, including from the Naval Air Station in Pensacola, Florida. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all available records and/or responses from each contacted entity are associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange to obtain an addendum opinion from the physician who conducted the November 2010 VA foot examination. If the November 2010 VA examiner is unavailable, the opinion should be rendered by another appropriate medical professional, based on claims file review (if possible). The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and all lay assertions. With respect to each bilateral plantar fasciitis and right foot tinea pedis, the VA physician is requested to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability represents a chronic residual of any condition(s) diagnosed during service, to include athlete's foot with possible first stage trenchfoot, possible cold weather injury, and/or plantar fasciitis. In addressing the above, the VA physician must consider and discuss all relevant medical evidence and lay assertions-to include the Veteran's competent assertions of continued bilateral foot pain and continued problems with athlete's foot since service. All examination findings (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange to obtain an addendum medical opinion from the physician who conducted the November 2010 VA heart and respiratory examinations. If the November 2010 VA examiner is unavailable, the opinion should be rendered by another appropriate medical professional, based on claims file review (if possible). The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the physician, and the report should include discussion of the Veteran's documented medical history and all lay assertions. a. The examiner should indicate whether the Veteran's bicuspid aortic valve represents a congenital defect or disease; and, if a defect, whether the condition was subject to superimposed disease or injury, resulting in a current disability. In this regard, the examiner should consider whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the diagnosis of probative costochondritis noted in November 1987, as well as the abnormal echocardiogram performed in November 1995, represented a superimposed disease or injury during service, which resulted in a current disability. b. If the examiner determines that the bicuspid aortic valve is a congenital disease, the physician should indicate (1) whether the disability clearly and unmistakably existed prior service entrance, and, if so (2) whether the disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. In this regard, the examiner should consider and discuss whether the diagnosis of probative costochondritis noted in November 1987, as well as the abnormal echocardiogram performed in November 1995, represented aggravation of the congenital disease. c. If the bicuspid aortic valve is determined not to have clearly and unmistakably existed prior to service, the physician should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability was incurred during service. d. The examiner should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current respiratory disability (1) had its onset in or was otherwise incurred in service; or, if not, (2) was caused or is aggravated (i.e., worsened beyond natural progression of the disorder) by the Veteran's heart disability (which is also being considered for service connection). If aggravation by a service-connected disorder is found, the examiner should attempt to quantify the additional disability resulting from aggravation. e. In rendering the requested opinions, the VA physician must specifically consider and discuss all pertinent medical evidence, to include the service and post-service treatment records. The examiner should also consider and address the Veteran's statements that he continued to experience heart and respiratory problems after service, which are deemed competent lay evidence of such. All examination findings (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence (to particularly include all that added to the record since the last adjudication of the claims) and legal authority. 6. If any benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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 2014). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2014).