Citation Nr: 1626184 Decision Date: 06/29/16 Archive Date: 07/11/16 DOCKET NO. 11-04 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a foot disability including bilateral pes planus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2015, the Veteran testified before the undersigned at a Travel Board hearing. In pertinent part, the Board remanded both issues remaining on appeal in January 2015. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the issue of service connection for pes planus has been recharacterized on the front page of this decision. FINDINGS OF FACT 1. Tinnitus is attributable to service. 2. Bilateral pes planus and bilateral plantar fasciitis are not attributable to service. 3. Bilateral pes cavus with associated hammertoe deformity is attributable to service. CONCLUSIONS OF LAW 1. Tinnitus was incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2015). 2. Bilateral pes planus and bilateral plantar fasciitis were not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2015). 3. Bilateral pes cavus with associated hammertoe deformity was incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information in a November 2009 letter prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service treatment records (STRs), VA records, and identified private treatment records have been obtained and associated with the record. The Veteran was also provided with VA examinations which contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed conditions. VA's duty to assist with respect to obtaining relevant records and examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at a Board hearing. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issues and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claims. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, tinnitus will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Foot Disability The STRs reflected that the Veteran had pes cavus, but there were no complaints, findings, treatment, or diagnosis of pes planus or plantar fasciitis. The pes cavus appeared to refer to the right foot as that foot was being evaluated at the time, but that it not clear. Correspondence from the Veteran indicated that he was diagnosed with pes planus during service, but the STRs he submitted reflected the treatment for Haglund's deformity and pes cavus, not pes planus. In 2009, a statement was received from a service buddy of the Veteran. He reported that the Veteran endured 10 mile hikes while carrying 40 plus pounds of gear on his back for weeks at a time which caused damage to his feet because the only type of boots they were issued at that time were hard soled flat jungle boots. He was required to run in them, walk in them and complete many forced marches on a monthly basis. The friend was not specific about the Veteran's foot problems. Since the Veteran has several foot diagnoses, the Board finds that this statement is probative as to the history of inservice shoes and duties, but not as to specific diagnoses since none were indicated. VA records dated in November 2009 document the Veteran's complaints of foot pain. Between April 2010 and September 2010, the Veteran was treated for bilateral fasciitis as well as bilateral pes cavus with a hammertoe deformity. In March 2015, a medical opinion was received from Dr. C.B. in which he indicated that he had examined the Veteran via video, conducted an in-person clinical interview, and provided his credentials as a physician. Dr. C.B. indicated that the Veteran had bilateral flat feet and plantar fasciitis which were the same as findings made in 2010. However, that statement is inaccurate because at no time was the Veteran noted to have pes planus/flat feet. Dr. B. opined with 90 percent level of probability that the Veteran's bilateral flat feet and plantar fasciitis are due to his experiences and trauma in service. He stated that the inservice Haglund's deformity was a calcaneal bump spur and calcaneal spurs are part of the plantar fasciitis spectrum due to inservice footwear. It was his opinion that the inservice Haglund's deformity and foot pain were indications of flat feet and sole pain. He noted that the post-service x-rays were abnormal as Haglund's disease was shown. In August 2015, the Veteran was afforded a VA examination. At that time, he stated that around 1990, his feet began to hurt from wearing boots. He went to the clinic at the Marine base and he was provided arch supports. He reported pain 7/10 daily with some bouts of flare up pain mostly located along the plantar aspect of the feet. On current physical examination, bilateral pes cavus and plantar fasciitis were shown. The examiner stated that there was no documentation of pes planus or current objective finding of pes planus. The examiner submitted a supplementary opinion. The examiner noted that the record was reviewed, including the notes from Dr. B. On entrance into military service, the Veteran reported that he had no foot problems. On March 14, 1994, the Veteran's (service-connected) right heel Haglund's deformity was documented. He had no x-rays of the feet done at that time. The Veteran's examination at that time also documented "cavus" as it was circled on the examination form. There was no documentation of plantar fascial pain in the STRs or pes planus/flat feet. There is/was no other documented follow up until 2010 for complaints of foot pain/plantar fascial pain. VA Medical Center progress notes dated April 21, 2010 documented the Veteran's complaints of plantar fascial pain and a duration of symptoms of "pain for about 1 year" and again a "cavus type foot." In a further addendum opinion, the examiner noted that the STRs showed that the Veteran had Haglund's deformity which was a foot problem caused by a bony enlargement on the back of the heel. The soft tissue near the Achilles tendon becomes irritated when the bony enlargement rubs against shoes or boots. This often leads to painful bursitis or bursal irritation (a fluid-filled sac between the tendon and bone). With regard to pes cavus, the examiner opined that it was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that a cavus foot is a condition in which the foot has a very high arch. The examiner again discussed where pes cavus was shown in the STRs. It was noted that the cavus type foot does not contribute, cause, and has not progressed to affect any current symptoms of the Veteran. With regard to plantar fascial pain/plantar fasciitis, the examiner opined that the condition claimed is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition and there was no documentation of plantar fascial pain in the STRs. There is/was no other documented follow up until 2010 for complaints of foot pain/plantar fascial pain. VA medical center progress notes dated in April 2010 and September 2010 documented the Veteran's complaints of plantar fascial pain and a duration of symptoms of "pain for about 1 year" and again a "cavus type foot" was noted on examination. As the VA Medical Center podiatry notes noted plantar facial symptoms for "1 year," it was unlikely that the symptoms were due to or caused by service. With regard to pes planus/flat feet, the Veteran did not have pes planus/flat feet during service or in the post-service records. Thus, it could not be linked to service duty. The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed conditions because the Veteran has a variety of foot diagnoses. Therefore, a medical expert opinion is more probative regarding the medical questions in this case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). There are both VA and private medical opinions. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the medical opinions are competent and credible as the examiners are medical professionals. However, with regard to the medical opinions, the Board finds that the VA examiner's opinion is more probative. It is unclear whether Dr. B.'s clinical interview actually included an in-person examination of the feet as he indicated that there was a video examination. With regard to pes planus, Dr. B. basically indicated that the inservice foot complaints and findings were the onset of pes planus and part of the same disease process. However, on the VA examination, conducted in near proximity to Dr. B.'s evaluation, but after that examination, demonstrated no pes planus on in-person physical examination. In fact, there is no diagnosis of pes planus in the record, but for Dr. B.'s opinion. Dr. B. referred to a positive opinion provided by Dr. A., but that opinion stated that a claimed disability was related to service, but not which disability. This matter was later clarified to refer to Haglund's deformity which is in fact now service-connected. The current in-person physical examination which shows no pes planus is the most probative evidence regarding the existence of that disability because it was detailed, clearly referred to in-person evaluation, and was consistent with the record. The Court consistently has held that, under the law, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit Court, which has stated, "a Veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the Veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). A "current disability" means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). Here, there is no disputing the Veteran has continually complained of foot pain, both during service and even since discharge. He is competent to report foot pain and credible in this regard. However, the VA compensation examiner specifically determined there is no current pes planus disability, but rather other foot diagnoses, to account for this pain. As noted, this is the most probative evidence of record on that point. Therefore, in the absence of proof of a present pes planus disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Therefore, service connection for pes planus is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. With regard to plantar fasciitis, Dr. B. opined that this diagnosis was due to service while the VA examiner opined that this diagnosis was not due to service. In viewing Dr. B.'s opinion, as noted, he was not entirely accurate with regard to the history as he reported pes planus diagnoses that were not in the record. With regard to the STRs, although he opined that the inservice notations, particularly with regard to Haglund's deformity, were part of the plantar fasciitis "spectrum," the Board notes that the STRs were actually quite specific regarding the inservice diagnoses. At no time was plantar fasciitis indicated while other diagnoses were specifically made. Dr. B. also did not address the Veteran's report in 2010 that plantar fasciitis had only existed for one year, by his own admission. In contrast, the VA examiner reviewed a complete record including Dr. B.'s opinion and commented on all of the pertinent findings, including the report of the onset of occurring one year before,. As such, the Board finds that this opinion is more probative than Dr. B.'s opinion. The VA examiner opined that the plantar fasciitis is not related to service because not only is it not shown in the STRs, but in 2010, the Veteran reported that complaints of plantar fascial pain had an onset of only one year before. The onset of plantar fasciitis was therefore many years after the Veteran's was separated from active service and the most probative evidence shows unrelated thereto. As such, the Board finds that service connection for plantar fasciitis is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. With regard to pes cavus, the Board observes that pes cavus was shown during service and the most probative evidence, the VA opinion, indicated that pes cavus was related to service. Although it is unclear whether the STR documenting pes cavus only referred to the right foot; however, all post-service evidence shows bilateral pes cavus. In affording the Veteran all reasonable doubt, the Board finds that service connection for bilateral pes cavus is warranted. Tinnitus The STRs do not reveal any complaints, findings, treatment, or diagnosis of tinnitus. Correspondence in conjunction with the current claim from the Veteran indicated that he sustained an injury when he was struck on the head with a pugil stick during training inservice. As a result of that injury, he stated that he suffered residuals including headaches and vision problems. Another injury he sustained was when he fell to the ground during training and again suffered injuries to his head with resulting headaches and vision conditions. The Veteran did not mention having tinnitus from these incidents. The Veteran did indicate that he was exposed to acoustic trauma during service. The Veteran also referred to his service entrance examination to show he had a hearing problem although the examination actually showed no ear disability on physical examination and the Veteran denied having ear problems. Specifically, there were no complaints or findings of tinnitus which existed when he entered service. A statement was received from a service buddy of the Veteran in 2009. He stated that during one training evolution, he remembered that the Veteran took a hard fall from an obstacle and complained of a head injury. Back then in the Marine Corps this type of injury was not really something that they paid much attention to so the Veteran just endured a headache for 5 days and took aspirin for the pain as that was the only treatment available. The individual stated that the Veteran used to say that it affected his vision in some way because he had trouble focusing on the rifle range after this incident. He did not indicate that he knew of tinnitus being present after a head injury. Rather, he stated that with regard to ear disability, their inservice working environment was loud and continuously noisy and dangerous. The Veteran was examined on November 18, 2009 and denied having tinnitus at that time. In April 2010, he again denied having tinnitus. However, there is a current diagnosis of tinnitus made on private and VA examinations. In March 2015, a medical opinion was received from Dr. B. in which he indicated that he had examined the Veteran via video, conducted an in-person clinical interview, and provided his credentials as a physician. Dr. B. indicated that the Veteran had tinnitus and that there was at least a 50 percent probability that is was due to inservice experiences and trauma. Dr. B. indicated that the Veteran had been exposed to acoustic trauma in service, there was lay evidence of chronicity of symptoms, there was no other more plausible etiology, the time lag from service was consistent with the diagnosis, and there was no controverted medical opinion. In July 2015, the Veteran was afforded a VA audiological examination. At that time, it was noted that the Veteran was in the Marine Corps from 1990 to 1994, working in infantry, personnel, and as a vehicle driver. He reported he used inserts as ear protection, was not in combat, and was a right handed shooter. He reported he was exposed to the following while in the military: M1, M16, M60, grease guns, 9mm, 38 cal, 45 cal, 50 cal mg, SAW, bazookas, small arms, rifles, pistols, tanks, cannons, rockets, helicopters, trucks, explosions, grenades, mortars, mines, test engine rooms, sirens, and fork lifts. He related that while in the military during training, he ran into some wires, fell on the concrete, hit his head, and passed out. He indicated that he was diagnosed with a concussion at that time. As a civilian, he denied any history of the following: ear surgery, ear infections, occupational noise exposure, tympanic membrane perforations, bleeding from the ears, dizziness, ototoxic medication use, and family history of hearing loss. He indicated that he sometimes used power tools and did not use ear protection. The Veteran reported bilateral intermittent ringing tinnitus that he had noticed since 1994 which occurred about once a day, and lasted for seconds. The examiner opined that it was less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The rationale was that although the Veteran claimed he had had tinnitus since 1994, when he was discharged from the military, two instances in his medical records, dated November 18, 2009 and April 21, 2010, indicated that he denied that he had tinnitus. Both of these medical notes are from Miami VA medical appointments and, again, both times he denied any tinnitus. The examiner noted that it was possible that his current tinnitus began later than those two appointments and, therefore, later than April 2010. The examiner noted that it was also possible he was mistaken in regards to when the tinnitus actually began. In this case, Dr. B. did not address the instances when the Veteran denied having tinnitus on two occasions; however, the Veteran has indicated that the tinnitus is intermittent. Thus, the fact that the Veteran denied having tinnitus on two occasions does not equate to a history of no tinnitus at any time at all. This appears to be the basis for the negative opinion from the VA examiner. Neither examiner addressed whether the head injuries resulted in tinnitus. Thus, both the private and VA opinions are incomplete opinions. However, the Veteran has provided competent and credible evidence that he has experienced intermittent tinnitus since service and there is also competent and credible lay evidence of acoustic trauma during service from both the Veteran and his service buddy. When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a). In affording the Veteran all reasonable doubt, the Board finds that service connection for tinnitus is warranted as this diagnosis is consistent with his service, his exposure to acoustic trauma, and the positive medical evidence. ORDER Service connection for tinnitus is granted. Service connection for bilateral pes planus and bilateral plantar fasciitis is denied. Service connection for bilateral pes cavus with associated hammertoe deformity is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs