Citation Nr: 1801540	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  13-35 090	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for bilateral degenerative joint disease (DJD) of the knees. 

2.  Entitlement to service connection for pes planus with posterior tendonitis of the left foot.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Diaz-Ferguson, Associate Counsel 



INTRODUCTION

The Veteran served on active duty from January 1983 to April 1983 and from November 1990 to August 1991.  

This matter comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

Briefly, the Board notes the July 2011 rating decision also denied service connection for posttraumatic stress disorder (PTSD), and the Veteran appealed this denial in her August 2011 notice of disagreement (NOD).  However entitlement to service connection for PTSD was granted in a July 2013 rating decision, which also granted service connection for a low back condition.  As a grant of service connection is a full grant of the benefits sought, those issues are not before the Board.  

The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System (VBMS).  

The issue(s) of entitlement to service connection for bilateral knee DJD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).  


FINDING OF FACT

The Veteran's left foot pes planus with tendonitis is not etiologically related to her active duty service.  





CONCLUSION OF LAW

The criteria for service connection for pes planus with tendonitis of the left foot are not met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103 (a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran was provided all required notice in a June 2011 letter, prior to the July 2011 rating decision on appeal. 

The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained.  In addition, the Veteran was afforded VA examinations in June 2015.  The Veteran has not asserted, and the evidence of record does not show, that his disability has increased in severity since his most recent examination.  In addition, the Veteran was afforded the opportunity to present testimony at a hearing before the Board, but declined.  

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence.  Accordingly, the Board will address the merits of the Veteran's claims.  

Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).  

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303 (b).  The term "chronic disease" refers to those diseases, such as arthritis, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  


Burden of Proof

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.  

Factual Background and Analysis

The Veteran seeks service connection for pes planus with tendonitis of the left foot.  Initially, the Board notes the Veteran was first diagnosed with left foot posterior tendonitis in 2006 and with flatfoot of the left foot in 2011.  A review of the treatment records reveals a history of treatment, since then, for flatfoot and tendonitis, including a left foot arthrodesis surgery in July 2011.  Therefore, the Veteran has satisfied the first element of her service connection claim.  The remaining issues to resolve are whether there was an injury or event in service, and if so, whether it is related to the Veteran's current diagnosis.  

After a careful review of the Veteran's STRs, the Board was unable to find any complaints or treatment of pes planus or tendonitis of the left foot.  Indeed, a July 1991 examination report noted the feet as normal.  Likewise, the Veteran did not report any foot problems in the available reports of medical history.  The only available indication of any foot problems in service is in a November 2013 buddy lay statement in which a fellow service member stated she and the Veteran were in the 912th MASH reserve unit.  The buddy further stated in June 1991, the unit was moved to Camp Thunder Rock, where the buddy witnessed the Veteran going to sick call and being told to stay off her feet for a couple of days.  According to the buddy, the unit was moving from location to location on the back of five-ton trucks. 

The Board finds this evidence is insufficient to establish an in-service injury or event.  As noted, the STRs are silent for any foot trouble as are the various available examination reports and reports of medical history.  A demobilization examination from July 1991, near the end of the Veteran's second active duty tour, indicates the Veteran's feet were normal.  As for the November 2013 buddy statement, the Board finds it competent and credible, as the buddy is competent to report events she observed, and nothing in the record directly contradicts her account or calls her credibility into question.  However, the statement is too vague to establish the in-service injury or event.  While the statement describes the Veteran moving in and out of five-ton trucks and being told to stay off her feet for a few days, it is not specific about the trauma the Veteran suffered to warrant such instructions.  In fact, the statement does not describe any trauma at all to the Veteran's feet; it merely states she was told to stay off of them for a few days.  As such, the Board finds the preponderance of the evidence is against a finding that an injury or event in service occurred.  

Even assuming the Veteran had established the second element of her service connection claim, the Board finds she has not met the third element.  In this regard, the Board notes the Veteran underwent a VA examination for foot conditions in June 2015.  The examiner reviewed the c-file and confirmed the above-noted diagnoses.  Upon a review of the file and an examination of the Veteran, the examiner concluded her current diagnoses were less likely than not related to her active duty service.  In support of her conclusion, the examiner noted the absence of a diagnosis or treatment for flatfoot or any other foot condition in the STRs.  She also noted the buddy statement but pointed to the 16-year gap between the reported event and the first treatment for foot problems in 2006.  The examiner further stated "it would not 'most closely approximate the etiology of the claimed condition' to ignore the absence of evidence and nexus and nature of the Veteran's diagnosis to conclude her left foot condition is related to her 9-month period in active duty." 

The Board finds the June 2015 medical opinion persuasive.  Specifically, the Board is persuaded by the fact that there is only one indication, the November 2013 buddy statement, that the Veteran may have had some problems with her foot in service.  However, as it has been previously noted, the statement merely reports the instructions given to the Veteran without providing any details as to the actual injury or event that warranted the instructions to stay off the feet.  The examiner also properly noted the absence of any indication of foot problems until 16 years after the Veteran left active service.  In this regard, the Board notes the record does not show, and the Veteran has not asserted, she experienced foot problems either in service or in the 16 years between leaving service and her diagnosis of tendonitis.  

Given the foregoing, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection.  This follows because the evidence fails to show there was an in-service event or injury and no medical nexus has been provided between her current diagnoses and her active duty service.  In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 


ORDER

Entitlement to service connection for pes planus with tendonitis of the left foot is denied.  


REMAND

Regretting further delay, the Board finds additional development is necessary before adjudicating the Veteran's claim of service connection for degenerative joint disease (DJD) of both knees. 

The Veteran underwent a VA examination for her bilateral DJD in June 2015.  After an examination of the Veteran and a review of the c-file, the examiner provided a negative nexus opinion.  In her rationale, the examiner noted a bilateral knee sprain the Veteran suffered in June 1991 as documented by a doctor's note and lay statements.  She also noted there was no indication of knee problems in the Veteran's separation examination.  She concluded that the Veteran's DJD was a result of years of wear and tear on the cartilage and not from the Veteran's active duty service.  However, the examiner failed to specify the type of wear and tear that the Veteran had that would cause DJD as opposed to the trauma she suffered in service.  Additionally, it is unclear whether the examiner considered and addressed a November 2013 buddy statement from a physician who treated the Veteran while in service.  The physician stated he treated the Veteran's knees in June 1991 after she slipped and fell off the rear end of a five-ton truck while wearing a 60-pound backpack.  The physician described the Veteran's knees as marginally swollen, inflamed, and painful.  As the examiner's opinion is vague, the Board finds it inadequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).   As such, a remand is warranted to obtain a clear medical opinion.  

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims.  

2.   Refer the claims file to an examiner of sufficient experience or expertise to assess whether the Veteran's bilateral knee DJD is related to her active duty service.  Upon a review of the record, the physician must state whether any degree of the Veteran's bilateral knee DJD at least as likely as not (a 50 percent probability or greater) was caused, or is otherwise related to her active duty service.  Specifically, the examiner must address the November 2013 buddy statement describing specific trauma and treatment of the Veteran's knees.  Another examination of the Veteran should be performed only if the physician providing the opinion deems it necessary.  

In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility."  Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.  

The examiner must provide a complete rationale for all proffered opinions.  If the physician is unable to provide any required opinion, he or she should explain why.  If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the physician must identify the additional information needed.  

3.  Undertake any other development determined to be warranted.  

4.  Then, readjudicate the issue on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the board intimates no opinion as to any final outcome warranted.  

The Veteran need take no action until he is 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 claim 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).




______________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs