Citation Nr: 1616363 Decision Date: 04/25/16 Archive Date: 05/04/16 DOCKET NO. 09-27 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral tarsal tunnel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia Veresink, Counsel INTRODUCTION The Veteran had active service from August 1976 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues for further development in September 2015. The development has been completed and the case returned to the Board. FINDINGS OF FACT The most probative evidence of record indicates the Veteran's current bilateral tarsal tunnel syndrome is not related to his service or service-connected pes planus, and was not aggravated by his service-connected pes planus. CONCLUSION OF LAW The criteria for establishing service connection for bilateral tarsal tunnel syndrome have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2015). Compliant VCAA notice was provided in November 2007. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records (STRs), post-service treatment records, and VA examination reports. The Board also notes that actions requested in the prior remand have been undertaken. Indeed, VA medical opinions were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran essentially contends that he developed bilateral tarsal tunnel syndrome due to his active service or due to his service-connected pes planus. As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with bilateral tarsal tunnel syndrome. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service or to a service-connected disability. Service treatment records note an injury in service to the left ankle during a football game in September 1988. Subsequent ankle X-ray was negative for any problems and the remainder of the Veteran's service treatment records do not show any ankle or foot disabilities or complaints. In a January 2000 report of medical history prepared for separation, the Veteran denied bone, joint, or other deformity; broken bones; arthritis, rheumatism, or bursitis; lameness; or foot trouble. The first indication of treatment for bilateral tarsal syndrome following service was in 2007. VA has obtained multiple nexus opinions regarding the Veteran's disability. In November 2012, the examiner reviewed all pertinent medical records and found that the Veteran's tarsal tunnel syndrome was less likely than not incurred in or caused by service. The examiner noted that the Veteran's tarsal tunnel problems are not related to climbing ship ladders while on active duty. He also pointed out that the Veteran was discharged in 2000, but the tarsal tunnel symptoms did not begin until 2007. The examiner found that due to the seven year time lapse it was less likely than not to have any causative connection. In December 2014, VA obtained an additional nexus opinion. The examiner found that the Veteran's bilateral tarsal tunnel syndrome was less likely than not proximately due to or the result of the Veteran's service-connected pes planus. He noted that tarsal tunnel syndrome is a compressive neuropathy that would have to be located distal to the primary site to be considered in the realm of a secondary issue. In its present state, this is the reverse of the expected anatomic relationship. The Veteran retired in 2000 and did not begin to experience symptoms until 2007. The seven year hiatus is the second major factor which contradicts secondary service connection or aggravation. Tarsal tunnel surgery was not performed until August 2008. The examiner specifically noted that normal asymptomatic pes planus in no way causes or aggravates tarsal tunnel syndrome. The Veteran was afforded a VA examination in October 2015 related to his bilateral tarsal tunnel syndrome. The Veteran reported that after service in 2001 during a routine several mile run, he experienced sharp pain from the top of both feet radiating up to his lower legs. He was unable to run again without discomfort. He continued to work, but was careful not to bear much weight on the insides of both feet, but did not have any foot evaluation until 2007 when he saw an outside podiatrist and was diagnosed with bilateral tarsal tunnel syndrome. He had surgery for right tarsal tunnel in 2008. Even though the Veteran states that he had flat feet in 2007, there is no mention in the medical records of pes planus except for the VA examination dated November 2012. The examiner specifically opined that it is less likely that the bilateral tarsal tunnel syndrome had its clinical onset during service or is otherwise related to active duty or was caused or aggravated by his service-connected bilateral pes planus. The examiner noted there was a seven year gap between military discharge in 2000 and symptoms in 2007, and determined there was no nexus between the complaint of tarsal tunnel syndrome and military service. The examiner noted the Veteran had a compensation examination for his left foot in March 2003, where it was described as a normal foot exam with unremarkable bony structures on X-ray. The examiner notes that the Veteran's pes planus was asymptomatic for years prior to being noted on a 2012 examination. The examiner found it unreasonable to think that the chronic asymptomatic pes planus would in 2007 to 2008 (the time of the diagnosis of tarsal tunnel syndrome) aggravate his tarsal tunnel syndrome. The examiner cited medical literature showing that the most common etiology is injury or trauma to the foot, which the examiner suggested was the Veteran's post service report of injury following service in 2001. While the Veteran believes that his current bilateral tarsal tunnel syndrome is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of bilateral tarsal tunnel syndrome are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his tarsal tunnel syndrome is not competent medical evidence. Thus, the Veteran's own opinion regarding the etiology of his current bilateral tarsal tunnel syndrome is not competent medical evidence. The Board finds the opinions of the VA examiners to be significantly more probative than the Veteran's lay assertions. The Board acknowledges a January 2016 statement by the Veteran's representative, wherein the representative asserted that the Veteran's foot disability may be due to his receiving an anthrax vaccine. The Board notes that neither the representative nor the Veteran has submitted any evidence relating his bilateral tarsal tunnel syndrome to an anthrax vaccine. Additionally, the VA examiners reviewed the Veteran's service treatment records and did not indicate that a vaccine may be the cause of a foot disability. When discussing possible causes of bilateral tarsal tunnel syndrome, an anthrax vaccine was not included in the list although a post-service running injury was. Thus, such lay assertion is unsupported by the record, and cannot serve as a basis to grant the claim or to even require that an opinion be obtained. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). Ultimately, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C.A. § 5107(a). Here, there is no competent evidence linking the Veteran's current condition to service or to the service-connected pes planus. Accordingly, the preponderance of the probative evidence is against the claim, and service connection is denied. As the preponderance of the evidence is against the claim for service connection for bilateral tarsal tunnel syndrome, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral tarsal tunnel syndrome is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs