Citation Nr: 1801725 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-14 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for fibromyalgia. 3. Entitlement to service connection for a bilateral eye disorder. 4. Entitlement to service connection for a bilateral foot disorder, to include plantar fasciitis. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and D.P. ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2017, the Veteran and D.P. testified regarding this matter at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. During the October 2017 Board hearing, the Veteran indicated that he was claiming service connection for his entire spine. However, the Board notes that his initial claim referenced only his cervical spine (neck). As such, the issue of entitlement to service connection for a thoracolumbar spine disorder has been raised by the record during the October 2017 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues regarding (1) service connection for a bilateral eye disorder; and (2) service connection for a bilateral foot disorder, to include plantar fasciitis 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 Veteran's current cervical spine disorder did not have its onset during service and is not otherwise related to it. 2. The Veteran has does not have a current diagnosis of fibromyalgia. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C .F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for fibromyalgia have not been met. 38 U.S. C. §§ 1110, 1131, 5107 (2012); 38 C .F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service Connection Analysis for Cervical Spine Disorder The Veteran maintains that he has a cervical spine disorder that is related to service. Specifically, the Veteran has attributed his neck pain to driving boats during service, which required prolonged standing. See October 2017 Board Hearing transcript. Upon review of all evidence of record, both lay and medical, the Board finds that the Veteran's currently diagnosed spine disorder is not related to service. Initially, the Board notes that the Veteran's service treatment records are unavailable. See June 2013 VA memorandum regarding unavailability of records. When service records are unavailable, the Board has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Veteran was afforded a VA spine examination in May 2016. At that time, the examiner diagnosed the Veteran with a cervical strain. During the evaluation, the Veteran indicated that he started having trouble with his neck in 1982. The Veteran also denied a history of trauma to the cervical spine, but attributed the neck pain to driving boats during service, which required prolonged standing. The examiner then opined that the Veteran's cervical spine disorder was not related to service. In support of this opinion, the examiner indicated that the Veteran reported the onset of his neck pain to be in 1982. Further, although some treatment records pertaining to joint pain were noted in 2004, those same records were silent for neck complaints. The Board finds that the VA medical opinion discussed above is probative and weigh against the Veteran's claim. The examiner reviewed the claims file, discussed the Veteran's contentions, and provided an opinion supported by a well-reasoned rationale. See Prejean, 13 Vet. App. at 448-9. VA and private treatment records have been reviewed, but do not show treatment or a current diagnosis pertaining to the Veteran's cervical spine. The Board has also considered the Veteran's statements regarding persistent neck symptoms; however, the evidence does not suggest that the Veteran's cervical spine symptoms were present in service or continuously since service separation. During the October 2017 Board hearing, the Veteran reported that he had neck pain since service separation, but did not seek treatment for neck pain until 1982, more than 25 years after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). However, the Board finds it reasonable to assume that, if the Veteran was suffering from neck symptoms since service, he would have reported such symptoms to his medical providers. Moreover, although the Veteran claims that he had symptoms since service, during the May 2016 VA examination the Veteran specifically told the examiner that he "started having trouble with his neck when he quit drinking in 1982." There was no indication by the Veteran during the May 2016 VA examination that his symptoms had persisted since service or soon after service separation. For these reasons, the Board finds that the Veteran's statements regarding persistent symptoms of neck pain since service separation to be inconsistent with other medical evidence of record, and therefore, of reduced probative value. The Board also considered the Veteran's statements purporting to relate his neck disorder to service. Lay persons are competent to attest to factual matters of which they have first-hand knowledge; however, lay persons generally do not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of the spine. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Cervical spine disorders are medically complex disease processes because of their multiple possible etiologies, require specialized testing to diagnose, and manifest symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). The etiology of the Veteran's current cervical spine disorder is also a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran. In summary, the Board finds that the competent, credible, and probative lay and medical evidence that is of record weighs against the claim for service connection for a cervical spine disorder. The Veteran has not submitted a probative medical opinion in support of his claim. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim). Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection Analysis for Fibromyalgia The Veteran claims that he has fibromyalgia. During the October 2017 Board hearing, the Veteran was unable to recall when his symptoms began. Moreover, although the Veteran indicated that a Dr. Sundber had treated him for fibromyalgia, those records were no longer available as the doctor had retired and records were not kept past 10 years. Upon review of the record, the Board finds that the weight of the evidence shows that the Veteran does not have a diagnosis of fibromyalgia. The Veteran was afforded a VA examination in May 2016. The examiner indicated that the claims file had been reviewed and an in-person examination was conducted. During the evaluation, the Veteran reported that he was diagnosed with fibromyalgia in 1987. After performing an examination, the examiner indicated that the Veteran had only 1 of 18 positive tender points and the Veteran's pain was limited to the neck (minor), knees, and feet. According to the examiner, this was not sufficiently widespread as was found in fibromyalgia. As such, the examiner stated that the Veteran did not meet criteria for the diagnosis of fibromyalgia. The examiner also noted that VA records and private records were silent for a diagnosis of fibromyalgia. The Board acknowledges the Veteran's contentions that he was diagnosed with fibromyalgia in 1987. Even if the Board were to assume for purposes of analysis that the Veteran was diagnosed with fibromyalgia in 1987, the evidence of record does not show that the Veteran has a diagnosis of fibromyalgia since the beginning of the claim and during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that a requirement of current disability is satisfied when claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim). Moreover, as a lay person, the Veteran is not competent to diagnose fibromyalgia as he has not been shown to have the requisite medical knowledge, training, or experience. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that requires a medical opinion to diagnose and to relate to service or differentiate from in-service symptoms and diagnosis). Fibromyalgia is a medically complex disease process because of its multiple possible etiologies, require specialized testing to diagnose, and manifests even observable symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). For these reasons, the Board finds that the weight of the evidence of record demonstrates that the Veteran does not have a current diagnosis of fibromyalgia. The Veteran has not met his burden of establishing the existence of a current disability. "In the absence of proof of a present disability there can be no valid claim." See Brammer, 3 Vet. App. at 225; see also Rabideau, 2 Vet. App. at 143-44. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for fibromyalgia, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a cervical spine disorder is denied. Service connection for fibromyalgia is denied. REMAND Bilateral Eye Disorder The Veteran maintains that he has a bilateral eye disorder that is related to service. Specifically, the Veteran has consistently reported that while serving as a boat coxswain in the Navy, he was on a ship and watched someone weld for approximately 3 hours without the use of eye protection. After the incident, the Veteran reported that he went outside and his eyes began to burn and he was taken to sick bay where he was treated. Although the Veteran's service treatment records are unavailable, the Board finds that the Veteran's statements and testimony are consistent with the circumstances of his service. The Veteran's DD Form 214 shows that he served during the Korean War on the USS Begor, which reasonably would have required welding repairs and/or welding duties by other service members. Therefore, the Board finds that the Veteran was likely exposed to welding during service. In an April 2014 Eye Condition Disability Benefits Questionnaire (DBQ) authored by Dr. M. E., a private physician, the Veteran was diagnosed with cataract, dermatochalasis, peripheral, punctual stenosis, floaters, and chemical keratitis with corneal abrasion. The April 2014 DBQ did not provide an opinion as to the etiology of the Veteran's eye disorders. The Veteran has not been afforded a VA examination. Given the evidence of current eye disability and the probative lay evidence of service incurrence, a remand is necessary to obtain an opinion regarding the etiology of his eye disorders prior to adjudicating this claim. Bilateral Foot Disorder The Veteran maintains that he developed a bilateral foot disorder in service as result of prolonged standing required in connection with his duties as a boat coxswain. The evidence includes a March 2014 statement from the Veteran's treating physician, Dr. W. L. who indicated that the Veteran had plantar fasciitis and contracture of the gastrocnemius muscle and tendon of both heels. Further, the doctor stated that it was "conceivable" that the Veteran's activities in the Navy, to include prolonged standing, would have initiated the abnormal contracture of the gastrocnemius/Achilles tendons and predisposed the Veteran to plantar fasciitis. The Board finds that the March 2014 medical opinion by Dr. W. L., although suggesting a "conceivable" relationship between his plantar fasciitis and service, lacks probative value because it is an opinion of mere possibility and not probability. See Bloom v. West, 12 Vet. App. 185 (1999) (the Court held that a physician's opinion the veteran's time as a prisoner of war "could have" precipitated the initial development of a lung condition, by itself and unsupported and unexplained, was "purely speculative"); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (A physician's statement framed in terms such as "may" or "could" is not probative). Given the evidence of current disability and the Veteran's inservice duties as a boat coxswain, the Board finds that a remand should be afforded to him. He has not been afforded a VA examination regarding his bilateral foot disorder. Additionally, during the October 2017 Board Hearing, the Veteran testified that he sought treatment from a podiatrist, Dr. Percival. As any podiatry records are potentially relevant to the foot claim, the identified records should be obtained on remand. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to complete and return VA Forms 21-4142, Authorization and Consent to Release Information, for the private medical treatment he received from Dr. Percival and any other medical provider for his foot disorders. After obtaining the completed VA Forms 21-4142, make reasonable efforts to obtain any outstanding private treatment records. Any records so obtained should be associated with the claims folder. 2. Obtain any updated VA treatment notes not currently of record and associate them with the electronic claims file. 3. Then, schedule the Veteran for a VA examination to assist in determining the nature and etiology of the Veteran's bilateral foot disorder(s). The examiner must review all pertinent documents in the record and obtaining a complete medical history from the Veteran. Then, the examiner should provide the following: (a) List all current diagnoses pertaining to the Veteran's feet. (NOTE: a March 2014 statement from the Veteran's treating physician, Dr. W. L., indicates diagnoses of plantar fasciitis and contracture of the gastrocnemius muscle and tendon of both heels). (b) Then, for each current diagnosis, provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the foot disorder had its origin in service or is in any way related to the Veteran's service, to include prolonged standing. (c) All opinions should be accompanied by a clear rationale. If the examiner cannot answer without resorting to speculation, he or she should explain why it would be speculative to respond. 4. Schedule the Veteran for a VA eye examination. In addition to reviewing the record, the VA examiner should assume that the Veteran was exposed, during his MOS duties as a boat coxswain, to welding without the use of eye protection during service (notwithstanding the absence of notation of such incidents in service treatment records). The examiner is then asked to address the following: (a) List all current diagnoses pertaining to the Veteran's eyes (i.e., rendered since the date of claim). (b) For each current diagnosis, state whether it is as likely as not (50 percent probability or greater) that any diagnosed eye disorder caused by, or otherwise related to, active service, to include exposure to welding without the use of eye protection. (c) All opinions should be accompanied by a clear rationale. If the examiner cannot answer without resorting to speculation, he or she should explain why it would be speculative to respond. 5. Then, readjudicate the issues on appeal. If any benefit sought remains denied, provide the Veteran and the representative with a supplemental statement of the case, and allow an appropriate amount of time for response before returning the case to the Board. 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. §§ 5109B, 7112 (2012). ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs