Citation Nr: 1602128 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 10-36 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral plantar fasciitis. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to service connection for a left ankle disability 4. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1983 to June 1983, November 1986 to February 1987, and with additional service in the Army National Guard from July 1986 to March 1996. This matter comes from the Board of Veterans' Appeals (Board) on appeal from September 2009 (denying service connection for plantar fasciitis), July 2010 (denying service connection for a bilateral ankle disability), and January 2013 (denying service connection for a lumbar spine strain) rating decisions issued by the Indianapolis, Indiana, Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran testified before the Board at a hearing held via videoconference. The appeal was previously before the Board in May 2015. The appeal was remanded for new examinations for the Veteran's plantar fasciitis and bilateral ankle disability. As to the Veteran's right ankle disability, the remand was substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). However, the examinations provided for the Veteran's left ankle disability and plantar fasciitis were inadequate; therefore the claim must be remanded again. The issues of entitlement to service connection for plantar fasciitis, a left ankle disability, and a lumbar spine strain are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The most probative evidence of record is against a finding that the Veteran had an in-service right ankle injury during his first period of service. 2. The most probative evidence of record is against a finding that the Veteran's preexisting right ankle disability was aggravated beyond its natural progression by his second period of service. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has 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). Proper notice was provided in a December 2009 letter. With regard to the duty to assist, the claims file includes service treatment records (STRs), private treatment records, and the statements of the Veteran in support of his claims. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. A VA examination was obtained and is adequate to decide the claim. The report includes a clinical examination, diagnostic testing, and consideration of the Veteran's reported symptoms. The report provides findings relevant to determining whether service connection is warranted and relevant for rating the disability at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. II. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after separation, 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). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, when no preexisting condition is noted upon entry into service, the Veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. Jensen v. Brown, 19 F.3d 1413 (Fed.Cir.1994). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). In considering whether to apply the presumption of aggravation, the Board must first determine whether there was an increase in the disability's severity and, if so, whether it was beyond the natural progression of the disease. 38 C.F.R. § 3.306(a). The claimant bears the burden of showing that the preexisting condition worsened in service. Wagner, supra. Until the claimant shows an increase in disability occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Id; see also Horn v. Shinseki, 25 Vet. App. 231 (2011). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). III. Right Ankle Disability The Veteran's February 1983 report of medical history and May 1983 enlistment examination do not reflect any preexisting ankle pain or injury. The Veteran's May 1983 STRs reflected that the Veteran complained of pain in the left ankle after falling off bars. Later in May 1983 the Veteran's STRs reflect a diagnosis of a left ankle sprain. In June 1983 the Veteran signed a statement of medical condition indicating that there had been no change in his medical condition since his most recent examination in February 1983. A right ankle injury was not noted in the Veteran's STRs. In response to the May 2015 Board remand the Veteran received a VA examination for his ankle disability in August 2015. The May 2015 Board remand requested that the examiner give an opinion as to if it was at least as likely as not that any currently diagnosed right ankle disability was caused or aggrevated by the Veteran's first period of service, taking into account his report of injuring his right ankle during basic training, and the June 1983 service record showing a strain of the left ankle. The examiner noted a diagnosis of lateral collateral ligament sprain in the Veteran's right ankle during his second period of service. The examiner diagnosed the Veteran with bilateral osteoarthritis of the ankle. The Veteran reported to the examiner an in-service right ankle injury in 1986. X-rays performed during the August 2015 examination showed no acute fractures or dislocations, but did show mild degenerative changes in both ankle joints. The x-ray revealed ossific body on the right ankle consistent with the Veteran's 1986 right ankle injury. The examiner noted that the Veteran's bilateral mild degenerative changes are symmetrical and therefore not related to the Veteran's 1986 right ankle injury. The August 2015 examiner concluded, in compliance with the August 2015 Board remand, that the Veteran's right ankle disability was less likely than not incurred in or caused by an in-service injury, event or illness, during his first period of service. The examiner's rationale was that the Veteran's STRs indicated a left ankle injury in May 1983, rather than a right ankle injury, and that if any sprain had occurred that was not recorded in the STRs, the current x-rays showed it had healed. The Veteran testified in a March 2015 Board hearing that he sustained an injury to his right ankle during basic training in 1983. The Veteran testified that he injured his right ankle in basic training when his foot slipped on a bridge. Shortly thereafter the Veteran injured his right ankle again jumping off "monkey bars" onto a sandbag. After the second injury the Veteran sought medical attention. The Veteran is competent to testify to things of which he has firsthand knowledge (i.e. ankle pain). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds the Veteran less than credible. While the Veteran testified at the March 2015 Board hearing that his right ankle injury occurred in 1983 he has previously stated that it occurred in 1986. The Veteran has been consistent in describing how the injury to his right ankle occurred, but not consistent in stating the year of the injury. The Veteran reported the same two ankle injuries stating they occurred in 1986 in a December 2009 statement in support of claim, a September 2009 letter to Senator Lugar, and to the August 2015 VA examiner. Additionally, the Veteran's statements are inconsistent with the contemporaneous STRs. As noted above the Veteran's May 1983 STRs reflect complaints of a left ankle injury after falling through bars, consistent with the Veteran's contention as to how an ankle injury occurred, but inconsistent with the Veteran's contention that he injured his right ankle. While he may sincerely believe his recollection as to what happened in service thirty years ago, his assertions are at odds with the contemporaneous medical evidence and, therefore, the Board finds that the Veteran is simply not a reliable historian. The Board affords those statements little probative value. The Veteran's STRs were recorded contemporaneously with the injury, and therefore are more credible and have a high probative value. Therefore, after reviewing the Veteran's statements and the contemporaneous medical records the Board finds that probative evidence of record supports a conclusion the Veteran sustained an injury to his left ankle in 1983. Thus, as there is no probative evidence that a right ankle disability was incurred or caused by an in-service injury, event, or illness during the Veteran's first period of service; service-connection is not warranted. After careful consideration of all procurable and assembled data, the Board finds that service connection for a right ankle disability during the Veteran's second period of service is not warranted. At the outset, the Veteran's STRs showed an October 1986 notation on his entrance examination recording a right ankle sprain. Thus, a right ankle disability pre-existed the Veteran's period of active duty service. 38 C.F.R. § 3.304(b). Because the presumption of soundness does not apply, the Veteran bears the burden of showing that the preexisting condition worsened in service. Horn, supra. When an injury preexists service, service connection can only be granted on the basis of aggravation if the Veteran's preexisting disability was aggravated beyond its natural progression. The Veteran's July 1986 enrolment examination reflected a diagnosis of a twisted right ankle. An October 1986 note on the enrolment examination noted that the Veteran twisted his right ankle approximately a month and a half ago, and had worn an ace bandage ever since. A note on the examination two days later indicated that the Veteran returned after not wearing the ace bandage for two days to re-evaluate the ankle sprain. An x-ray was performed, which revealed negative results. In a May 1991 Report of Medical History the Veteran did not report any ankle injuries or pain. The Veteran's STRs are otherwise silent as to complaints of right ankle pain. In response to the May 2015 Board remand the Veteran received an August 2015 VA examination for his right ankle. The Board remand requested that the examiner discuss whether the Veteran's preexisting right ankle disability was aggravated by service or presented an increase in disability beyond the natural progression of the disease, taking into consideration the Veteran's report that he injured his ankle during exercises in basic training during both his first and second periods of service. The August 2015 examiner complied with the Board remand, and concluded that the Veteran's preexisting right ankle injury clearly and unmistakably existed prior to service, and was not aggravated beyond its natural progression by an in-service event, injury or illness. As noted above, the examiner diagnosed the Veteran with bilateral osteoarthritis of the ankle and noted a diagnosis of lateral collateral ligament sprain in his right ankle in 1986. The examiner provided a thorough rationale for his conclusion noting the 1986 enlistment examination note of the preexisting right ankle injury. The examiner explained that a sprained ankle is expected to take 6 weeks to heal. Therefore, it would make sense that an injury that occurred a month a half prior had healed. The examiner also noted that the Veteran did not indicate an ankle sprain or pain in his May 1991 report of medical history, indicating that the right ankle had in fact healed in October 1968 and had not been aggravated during the period of 1968 to 1991. The examiner also indicated that the radiographs performed in conjunction with the August 2015 examination show a past lateral ankle sprain in the right ankle, and showed that the sprain had healed, which is to be expected of the natural history of an ankle sprain. The Veteran contended in the March 2015 Board video hearing that his right ankle disability was aggravated by his service, but as explained above the Board has found the Veteran less than credible. Moreover, the Veteran has only offered conclusory statements regarding the relationship between his military service and his right ankle disability. The competent medical evidence demonstrates that his current right ankle disability, osteoarthritis of the ankle, was not aggravated by his service. The Veteran has not met his burden of showing that the preexisting condition has worsened in service. Thus, in this case, the competent and probative medical evidence of record, namely the August 2015 VA examination, demonstrates that there was not an increase in disability while in service. A review of the service records and post-service records are additionally negative for a finding that the Veteran's right ankle disability increased in severity during service or was aggravated beyond its natural progression due to service. As there is no indication that the preexisting right ankle disability was aggravated by the Veteran's second period of service, the presumption of aggravation does not attach and the burden of rebuttal does not shift to the Secretary. Thus, the requirements for service connection for a pre-existing disability have not been met. See 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(a). In sum, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right ankle disability is denied. REMAND The Board remanded the remaining claims in May 2015 to obtain medical opinions; however, the opinions are inadequate. The May 2015 Board remand asked the examiner to opine as to whether it was at least as likely as not that any currently diagnosed left ankle disability was caused or aggravated by the Veteran's first period of active service, taking into account the June 1983 STR showing a strain of the left ankle. As a result, the Veteran received an August 2015 VA examination for both ankles. The August 2015 VA examiner concluded that the Veteran's currently diagnosed left ankle disability was less likely than not incurred in or caused by an in-service injury, event or illness. The examiner's rationale was that the Veteran's left ankle condition noted in the May 1983 STRs had resolved by June 1983, as shown by the Veteran's statement of medical condition that there had been no change in his medical condition since February 1983. Additionally, the August 2015 VA examination x-ray showed negative results. This opinion is inadequate as it does not discuss aggravation as requested by the May 2015 Board remand. Additionally, the rationale provided by the examiner is inadequate. The August 2015 VA examiner based his opinion primarily on the fact that the Veteran signed a form indicating his medical condition had not changed from February 1983 to June 1983, however, as the examiner noted, there is proof that the Veteran had experienced a left ankle sprain in May 1983, making it clear that his medical condition had in fact changed. The examiner failed to discuss this discrepancy in the Veteran's reporting. Therefore, as the examination is inadequate a new examination is needed for the Veteran's left ankle to determine service connection for his first period of service. As for the second period of service, the May 2015 Board remand asked the examiner to discuss whether there was clear and unmistakable evidence that the Veteran's left ankle disability pre-existed his second period of active service. If the answer was yes, the examiner was to discuss if there was clear and unmistakable evidence that the Veteran's pre-existing left ankle disability was not aggravated beyond the natural progress of the disability or that any increase in disability was due to the natural progression of the disease. After performing an examination the August 2015 VA examiner concluded that the left ankle disability "which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness." The examiner's rationale for this conclusion was that the Veteran's STRs clearly documented a left ankle injury in 1983, prior to his second period of service. The examiner then stated "Please see rationale for Opinion C." This opinion is inadequate as it fails to give a rationale for the conclusion that there was clear and unmistakable evidence that the left ankle disability was not aggravated beyond its natural progression. Additionally, as for the examiner directing the reader to the rationale for "Opinion C" the opinion for the left ankle was labeled as opinion C, therefore it is unclear which opinion the examiner is directing the reader to. The August 2015 Board remand also requested that the examiner discuss if it was at least as likely as not that the Veteran's current left ankle disability was caused or aggravated by active service (taking into consideration the Veteran's report that he injured his ankle during exercises in basic training in both his first or second periods of service). In response to this question, the examiner concluded that that the Veteran's left ankle disability was less likely than not incurred or caused by the claimed in-service injury, event or illness. The rationale for this conclusion directed the reader to "Please see rationale for Opinions A. and B." This opinion is inadequate, as it fails to address aggravation, as requested by the Board remand. Additionally, as discussed above the Board found opinion A (discussing the Veteran's left ankle during his first period of service) inadequate. Opinion B is a discussion on the Veteran's right ankle and therefore not relevant to the Veteran's left ankle disability. Lastly, the examiner failed to address the Veteran's report that he injured his left ankle during both periods of service. The Board also remanded the claim of service connection for plantar fasciitis. The August 2015 remand required the examiner to provide an opinion as to whether it was as least as likely as not that the Veteran's current plantar fasciitis was caused or aggravated by his first period of active service taking into account his report of foot pain from wearing his boots during basic training. As a result of the Board remand the Veteran received an August 2015 VA examination for his plantar fasciitis. As to the question posed by the remand the examiner concluded that the Veteran's plantar fasciitis was less likely than not incurred or caused by the claimed in-service injury, event or illness. The examiner's rationale for this conclusion was "A note date 13 June 1983 indicates numbness feet in AM on awakening x 3 weeks. A - Normal exam." This opinion is inadequate as it fails to address the issue of causation or aggravation, or the Veteran's report of pain while wearing boots, as requested by the Board remand. Additionally, the examiner failed to give a thorough rationale as he did not give an explanation of the significance of the June 1983 note. With regard to the Veteran's second period of active service the Board remand requested that the examiner discuss if the evidence of record showed that the Veteran's preexisting plantar fasciitis was not aggravated by service or that any increase in disability was due to the natural progression of the disease (taking into consideration the Veteran's report of foot pain from wearing his boots during basic training). The August 2015 VA examiner concluded that the Veteran's plantar fasciitis clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner's rationale was that the Veteran had a podiatry note dated October 1986 indicating that he had seen a civilian doctor for plantar fasciitis, but that it was asymptomatic. The examiner then concluded that because the Veteran's May 1991 report of medical evaluation indicated no foot trouble that "any aggravation that occurred between October 1986 and May 1991 had resolved." This opinion is inadequate as it fails to address the Veteran's lay statements as requested by the Board remand. Lastly, the Veteran is asserting entitlement to service connection for a lumbar spine strain on a direct basis and as secondary to an ankle disability. As the Veteran's claim for a lumbar spine strain is inextricably intertwined with the Veteran's claim for his left ankle disability, it must be deferred until further development is completed. Therefore, as the August 2015 VA examination is inadequate as to the Veteran's left ankle disability and bilateral plantar fasciitis, new examinations must be obtained for both. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination to ascertain the etiology of the Veteran's left ankle disability. The claims file and copies of all pertinent records should be made available to the examiner for review. All opinions reached must include a thorough rationale. The examiner must provide an opinion as to the following: a) Is it at least as likely as not (within the realm of 50 percent probability or greater) that any currently diagnosed left ankle disability was caused or aggravated by his first period of active service from May 1983 to June 1983, taking into account the June 1983 service record showing a strain of the left ankle and the June 1983 Statement of Medical Condition? b) With regard to the Veteran's second period of service is there clear and unmistakable evidence (obvious and manifest) that the Veteran's left ankle disability pre-existed his second period of active service? If the answer is yes, is there clear and unmistakable evidence that the Veteran's pre-existing left ankle disability was not aggravated beyond the natural progress of the disability or that any increase in disability was due to the natural progression of the disease? Please identify any clear and unmistakable evidence with specificity. c) If the answer to either question posed by b) is no, is it at least as likely as not that the Veteran's current left ankle disability was caused or aggravated by active service (taking into consideration the Veteran's report that he injured his ankle during exercises in basic training in both his first or second periods of service)? 2. Schedule a VA examination to ascertain the etiology of the Veteran's plantar fasciitis. The claims file and copies of all pertinent records must be made available to the examiner for review. All opinions reached must include a thorough rationale. The examiner must provide an opinion as to the following: a) Is it at least as likely as not (within the realm of 50 percent probability or greater) that the Veteran's current plantar fasciitis was caused or aggravated by his first period of active service from May 1983 to June 1983, taking into account his report of foot pain from wearing his boots during basic training. The examiner must be sure to provide a specific finding as to aggravation. b) With regard to the Veteran's second period of active service, from November 1986 to February 1987, does the evidence of record show that the preexisting plantar fasciitis was not aggravated by service or that any increase in disability was due to the natural progression of the disease (taking into consideration the Veteran's report of foot pain from wearing his boots during basic training)? 3. After completing the above, and any other development deemed necessary, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs