Citation Nr: 1803797 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 11-11 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals of a right shoulder injury. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a foot disability, to include bilateral pes planus and plantar fasciitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's Spouse ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1986 to September 1986 and from December 2007 to December 2008. The Veteran has been a member of the Army National Guard with unknown service dates, including potential other periods of active duty. This case initially came before the Board of Veterans' Appeals (Board) on appeal from April 2009, May 2009, and June 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board has expanded the Veteran's bilateral pes planus claim on appeal to encompass all similar disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability 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). The Veteran and his spouse attended a hearing in front of a Decision Review Officer in May 2013. A hearing transcript is of record. The issues of hypertension and a foot disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's right shoulder injury is related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for residuals of a right shoulder injury have been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The full award of benefits sought on appeal is being granted at this time. Consequently, any further discussion respecting the VCAA is not necessary. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including tinnitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in the line of duty. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty or ACDUTRA, or from injury (but not disease) incurred or aggravated while performing INACDUTRA. Id.; see also 38 U.S.C. §§ 106, 1110, 1131; 38 C.F.R. § 3.303(a). ACDUTRA includes full time duty performed by members of the Armed Forces Reserves or the National Guard of any state. 38 C.F.R. § 3.6(c). To establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Further, the burden to establish "Veteran" status for a claim based on a period of ACDUTRA is on the appellant. Paulson; Smith v. Shinseki, 24 Vet. App. 40, 44 (2010); Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010). The Veteran is seeking entitlement to service connection for residuals of a right shoulder injury that he asserts he suffered during his military service in 2007. The Board finds that service connection is warranted. Initially, the Board notes that the Veteran's enlistment examination in September 1992 for the Army National Guard, the earliest available examination in the record, contains a notation referencing a right shoulder fracture in 1970. However, there are no indications that the Veteran had any current issues with his right shoulder at the time of the 1992 examination. This finding is confirmed by January 1998 and February 2004 military physicals which contained no references to a right shoulder problem. Therefore, the Veteran is entitled to the presumption of soundness as there are no indications of right shoulder problems prior to his tour of duty. The first indication of a right shoulder problem is after he injured it during training. The injury was significant enough that a report was created and signed by the Veteran's unit commander. The report indicates that on August 17, 2007, the Veteran injured his right shoulder during combative training while he was on ACDUTRA. An MRI was conducted on August 21, 2007, in response to the Veteran's complaint of right shoulder pain. The MRI revealed degenerative changes of the acromioclavicular joint with no evidence of fracture or dislocation. A December 2008 MRI also revealed moderate supraspinatus tendinopathy and noted that the Veteran's acromioclavicular osteoarthritis was likely traumatic. A March 2009 VA examination diagnosed the Veteran with post-traumatic osteoarthritis of the right shoulder. Medical records demonstrate continued complaints of right shoulder pain since the training incident. For example, in June 2010, the Veteran sought treatment for right shoulder pain. During a June 2012 medical appointment, the Veteran reportedly participated in occupational therapy for shoulder strengthening and improvement of his range of motion although the pain did not improve. The Board recognizes the opinion of the May 2009 VA examiner who determined that the Veteran's right shoulder disability was part of a preexisting shoulder condition that was not permanently worsened by service beyond its natural progression. However, the Veteran is entitled to the presumption of soundness despite the childhood fracture. Therefore, the injury in 2007 must be viewed in the context of the assumption that the Veteran's shoulder was healthy beforehand. As such, acknowledging that the Veteran's ACDUTRA status gives him the ability to gain service connection for injuries during the time period and giving the Veteran the benefit of the doubt, the Board finds that service connection is warranted. ORDER Service connection for residuals of a right shoulder injury is granted. REMAND The Board finds that the Veteran's claims for service connection for hypertension and a foot disability must be remanded. Initially, the Board notes in a disability compensation claim, VA must make efforts to obtain the Veteran's service treatment records, if relevant. 38 C.F.R. § 3.159(c)(3) (2017). However, the claims file contains only scattered service treatment records and no full accounting of the Veteran's dates of military service, to include his periods of ACDUTRA and INACDUTRA. Such dates are necessary to determine whether the Veteran's claimed disabilities can be service-connected. Additionally, despite indications that the Veteran joined the military in the 1980s, there appear to be widespread missing service treatment and military records in the claims file. Upon remand, VA should attempt to locate the missing service treatment and military records and, if appropriate, make a formal finding of the unavailability of records. With regards to the Veteran's hypertension, the Veteran conceded that his hypertension was diagnosed in December 2000 when he was not on active duty. The screenings were for INACDUTRA, which allegedly occurred 3 months before active duty. The Veteran argues that his military experience worsened his hypertension beyond its natural progression. Therefore, after VA attempts to obtain medical and military documentation from that period, an initial examination and medical opinion are necessary to evaluate the Veteran's claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). With regards to the Veteran's bilateral pes planus, the Veteran states that his flat feet were diagnosed in Iraq in 2008. Additionally, the Board notes a diagnosis of plantar fasciitis. During a March 2009 VA examination, the examiner determined that his bilateral pes planus was congenital. The examiner opined that the congenital, preexisting condition of bilateral pes planus was not permanently worsened by service beyond its natural course. There is no explanation for this conclusion and no opinion offered for the plantar fasciitis. The examiner also failed to discuss the Veteran's complaint of foot pain in his December 2008 Post-Deployment Physical, which may corroborate his statement that his feet suffered during his deployment to Iraq. Additionally, the examiner did not discuss whether the Veteran's foot disability was a congenital defect or disease, which may have a significant impact on his service connection claim. Therefore, a new medical examination and opinion is necessary to evaluate the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records from the VA Medical Center in Chicago, Illinois since December 2017, as well as from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. The RO should also attempt to locate the Veteran's complete service treatment records from all periods of military service, as well as any additional records held by VA which are not presently associated with the electronic claims file. If the requested records cannot be found, or are otherwise unavailable, the AOJ should notify the Veteran and his representative of this fact in writing. If the records cannot be located, the AOJ should make a formal finding of unavailability and attach the finding to the record. VA should also confirm the Veteran's dates of service, to include periods of active duty, ACDUTRA, and INACDUTRA. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should state specifically whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran's hypertension is etiologically related to his military service, to include whether it worsened beyond its natural progression as a result of military service. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral pes planus and plantar fasciitis. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should: (a) Determine whether the foot disability, which include bilateral pes planus and plantar fasciitis, is a congenital or developmental disorder, and if so, whether it is a congenital or developmental defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990)]. (b) If any is a congenital or developmental defect, please opine whether it is at least as likely as not that there was a superimposed injury or disease in service that resulted in additional disability. (c) If any is a congenital or developmental disease or is not a congenital or developmental disorder, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that such diagnosis existed prior to active service. (d) Finally, state specifically whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran's bilateral pes planus and plantar fasciitis are etiologically related to his military service, to include, if the conditions pre-dated service, whether they worsened beyond their natural progression as a result of military service. The examiner should discuss the Veteran's complaint of foot pain in his December 2008 Post-Deployment Physical. The examiner should also address in detail the additional functional impairment and range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups. The examiner must estimate any additional loss of motion to the best of his or her ability. 5. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and their representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned 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). ______________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs