Citation Nr: 1754593 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-30 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE 1. Entitlement to service connection for diabetes mellitus type 2 (DM). 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to service connection for a right ankle disability, to include as secondary to a bilateral foot disability. 4. Entitlement to service connection for a left ankle disability, to include as secondary to a bilateral foot disability. 5. Entitlement to service connection for a left hip disability. 6. Entitlement to service connection for a headache disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from January 1988 to May 1993. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran provided testimony at a videoconference hearing in January 2015 before a Veterans Law Judge. Since that Veterans Law Judge left employment at the Board, the Veteran was offered another Board hearing, but declined. In June 2015, the Board dismissed the issues of service connection for a right shoulder disability and right knee disability; denied service connection for a left knee disability, a left shoulder disability, a disability manifested by short-term memory loss, restless leg syndrome, sleep apnea, tinnitus, and hypertension; and remanded service connection for a bilateral foot disability, a bilateral ankle disability, a left hip disability, a headache disability, and DM. The issues of a bilateral foot disorder, a left ankle disability, a left hip disability, and for a headache disability, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. DM was not manifest during service, to a compensable degree within one year of service, and is not otherwise attributable to service. 2. The Veteran does not have a right ankle disorder. CONCLUSIONS OF LAW 1. DM was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2017). 2. A right ankle disorder was not incurred or aggravated in active service. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). 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 and all appropriate development was undertaken in this case. The Veteran was also afforded a hearing which was adequate. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not alleged any notice or development deficiency during the adjudication of the claims. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 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, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, DM 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). In addition, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). 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. The service treatment records (STRs) reflect that the Veteran reported having right foot pain after jumping off a vehicle. He was diagnosed with plantar fasciitis at that time. He continued to complain of foot pain due to plantar fasciitis as secondary to flexible pes planus. He had additional treatment thereafter for the two feet conditions. However, there were no complaints, findings, treatment, or diagnosis of ankle disease or injury. Likewise, there were no complaints, findings, treatment, or diagnosis of DM. Post-service, the VA clinical records show initial treatment and diagnosis of DM in 2008. In June 2010, the Veteran was afforded a VA examination. A right ankle disorder was not shown. The Board remanded this case for another VA examination to assess the Veteran's feet. Since the Veteran claimed a bilateral ankle disability secondary to the plantar fasciitis, the ankle issues were also remanded. Moreover, as the Veteran claimed that he had DM and had experienced excessive thirst and urination since service, so the Board also remanded that issue. In October 2015, the Veteran was afforded a VA examination. The examiner indicated that the diagnosis of DM was first made April 2008 and was not present during active duty service, according to medical records reviewed including the STRs. Thus, it was less likely than not that his DM was related to service. In October 2015, the Veteran was afforded a VA ankle examination. No abnormalities of the right ankle were demonstrated. The examiner provided a negative opinion. With regard to DM, the STRs did not reflect a finding of DM. The VA examiner opined that the diagnosis of DM was first made in April 2008 which is supported by the post-service clinical records. Thus, the initial diagnosis was made approximately 15 years after service discharge. The Veteran has reported having frequent urination and excessive thirst since service. However, the contemporaneous STRs do not show this was the case. DM was not shown inservice. Moreover, even accepting that the Veteran had these symptoms in the initial post-service year, there was no diagnosis at that time nor would these symptoms represent a compensable disability absent evidence that the Veteran required a restricted diet to manage any symptoms. See 38 C.F.R. § 4.119, Diagnostic Code 7913. The Board finds that overall, the evidence does not show that DM was present but not diagnosed for 15 years. Rather, as opined by the VA examiner, the evidence shows that DM was not present during active duty service and it is less likely than not that DM is related to service. The Board finds probative the VA examiner's opinion that there is not etiological connection as the post-service evidence showed the diagnosis occurring many years later. Although the Veteran is competent to reported frequent urination and excessive thirst, the clinical records show that these symptoms were not related to DM as the initial diagnosis was made in 2008 and the evidence does not support a finding that DM had been present for over a decade at that time. Therefore, service connection for DM is not warranted. With regard to the right ankle, there is no current disability. The United States Court of Appeals for Veterans Claims ("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). "Arthralgia" is defined as pain in a joint. See DeLuca v. Brown, 6 Vet. App. 321, 322 (1993) (citing Dorland's Illustrated Medical Dictionary 147 (27th ed. 1988)). The Court has stated in Clyburn v West, 12 Vet. App. 296, 301 (1999), that continued complaints of pain after service do not suffice to establish a medical nexus, where the issue at hand is of etiology, and requires medical opinion evidence. Pain cannot be compensable in the absence of proof of an in-service disease or injury to which the current pain can be connected by medical evidence. Mere pain, alone, without a diagnosed or identifiable underlying condition, is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, appeal dismissed in part sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (dismissing challenge to the issue whether pain, alone, can be considered a disability). Here, there is no disputing the Veteran complains of right ankle pain. However, the VA compensation examination specifically determined there is no current right ankle disability, including underlying diagnosis, to account for this pain. The Board attaches significant probative value to the VA examination and opinion, and the most probative value in this case. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating most of the probative value of an opinion comes from its underlying reasoning, not just from mere review of the record, although that, too, has its importance if evidence in the file may affect the underlying basis of the opinion such as by revealing relevant facts). The Board finds that the VA examinations findings and opinion are more probative than the Veteran's personal assertions to the contrary because the examiner has medical expertise that the Veteran does not possess. He is certainly competent to report experiencing chronic pain, but he is not competent to ascribe this pain to a particular diagnosis or, in turn, relate it to his military service or other medical condition, especially when, as here, there is countervailing medical comment. Thus, the most probative evidence establishes there is no present disability. Absent a current diagnosis, service connection is not warranted on a direct or secondary basis. 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 claims, and they must be denied. ORDER Service connection for a right ankle disorder is denied. Service connection for DM is denied. REMAND The STRs reflect that the Veteran complained of a headache in December 1991 in conjunction with treatment for a cold. With regard to the feet, the Veteran was treated in October 1990 for a left toe injury after he dropped a drawer on his toe. Subsequently, in November 1992, the Veteran reported having right foot pain after jumping off a vehicle. He was diagnosed with plantar fasciitis at that time. He continued to complain of foot pain due to plantar fasciitis as secondary to flexible pes planus. He had additional treatment thereafter for the two feet conditions. There were no inservice complaints, findings, treatment, or diagnosis of ankle disease or injury or left hip disease or injury. Post-service, in June 2010, the Veteran was afforded a VA examination. In regard to his feet, the inservice complaints, treatment, and diagnoses were noted. Currently, the Veteran had complaints that the "balls"' of the feet become sore and tender, but he was wearing no arch supports. He was wearing diabetic shoes which had nothing to do with his foot complaints in the service. The physical examination showed that the Veteran was not flat-footed and had a normal arch. On both feet, he had a small callus on the medial aspect of each toe and on the right foot, he only had a small callus on the medial aspect of the right heel. He did not have a callus on the medial aspect of the left heel. There was perhaps a very mild pes cavus, but the Achilles tendon was not tender. Neurovascular examination was normal. The diagnosis was plantar fasciitis, bilateral, resolved. The Veteran's complaints of pain and foot fatigue were not due to plantar fasciitis. X-rays showed bilateral calcaneal spurring. Thereafter, clinical record did reveal notations of plantar fasciitis. As such, the Board remanded this case for another examination to include consideration of an ankle disorder. Moreover, as the Veteran claimed that a left hip disorder and headaches were related to service based on the Veteran's competent histories of left hip symptoms and headaches since service, the Board also remanded those issues. In September 2015, the Veteran was examined by VA. The Veteran reported that he had had headaches for 20 years. The examiner opined that there was a less than 50 percent probability that the Veteran had incurred headaches from service because the STRs did not show a headache diagnosis that had persisted. This opinion is inadequate because the Board had conceded a competent report of headaches since service and there was no opinion regarding whether the headaches, while diagnosed after service, were related to service with consideration of continuous symptoms. Thus, an addendum is required. In October 2015, the Veteran was afforded a VA hip examination. The examiner indicated that left hip pain was not seen in active duty service. The Veteran currently demonstrated reduced motion on flexion. The examiner opined that it was less likely than not that the left hip condition was related to service because there was no medical record documentation of this issue in records reviewed including the STRs and primary care documentation. This opinion is inadequate because the Board had conceded a competent report of left hip pain since service and there was no opinion regarding whether the left hip condition, while diagnosed after service, were related to service with consideration of continuous symptoms. Thus, an addendum is required. In October 2015, the Veteran was afforded a VA feet examination. The examiner noted the inservice history of plantar fasciitis as well as a post-service diagnosis of plantar fascial fibromatosis in 2011. The examiner opined that it was likely than not the foot condition was related to service as there was no documentation between 1993 and 2011 of an ongoing persistent condition regarding his feet that would relate to active duty service. It was noted that the Veteran stated that he did not seek medical care for this issue during that time. The Board finds that this opinion is inadequate as the Veteran admitted he did not seek treatment and the rationale is incomplete as to whether the post-service diagnosis of plantar fascial fibromatosis is related to the inservice diagnosis of plantar fasciitis. Also, there is no opinion with regard to diagnosed bilateral calcaneal spurring. In October 2015, the Veteran was afforded a VA ankle examination. The left ankle exhibited some loss of motion. As such, the Board finds that this issue must be deferred as it is claimed as secondary to the foot disability. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical addendum. The examiner should review the record prior to examination. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current any current headache disability, left hip disability, bilateral foot disability, and left ankle disability had its clinical onset during service or is related to any in-service disease, event, or injury. The examiner should accept as credible the Veteran's reports of headaches and left hip pain since service. The examiner should specifically comment as to whether the post-service diagnoses of plantar fascial fibromatosis and bilateral calcaneal spurring are related to the inservice diagnosis of plantar fasciitis. With regard to the left ankle, the examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current left ankle disability is proximately due to, or the result of plantar fascial fibromatosis and/or bilateral calcaneal spurring. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current left ankle disability is permanently aggravated by the Veteran's plantar fascial fibromatosis and/or bilateral calcaneal spurring. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Review the medical opinion(s) obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 3. Readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs