Citation Nr: 18146662 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-34 467 DATE: October 31, 2018 ORDER Entitlement to service connection for a bilateral foot disorder is denied. REMANDED Entitlement to service connection for an upper/lower back disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDING OF FACT The record does not establish that the Veteran’s preexisting bilateral pes planus increased in severity during service or that any current bilateral foot disability is causally related to the Veteran’s active service or any incident therein. CONCLUSION OF LAW The criteria for an award of service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1983 to June 1986. The Veteran has not raised any issues with the duty to notify or duty to assist. Entitlement to service connection for a bilateral foot disorder 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. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after 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). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A veteran is presumed to be in sound condition when entering service, except for conditions “noted” on entrance or where clear and unmistakable evidence demonstrates that an injury or disease preexisted service, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC3-2003 (2003). Only such conditions as are recorded in entrance examination reports are considered to be “noted” for purposes of the presumption of soundness. 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306 (a). The Veteran seeks service connection for a bilateral foot disorder. At no point has the Veteran specified the nature of his claimed condition. However, he has asserted a belief that his condition “occurred over a period of time due to [his] service in the military.” See July 2016 VA Form 9. Following consideration of the record, the Board finds that entitlement to service connection is not warranted. Service treatment records (STRs) note diagnosis of bilateral pes planus on enlistment examination in April 1983. However, STRs for the remaining period of service do not reflect aggravation, as they are silent for report or treatment of pes planus or any other foot condition. Of note, on May 1986 Report of Medical History the Veteran indicated having no “foot trouble” and characterized himself as in good health. A physician on an adjoining Report of Medical Examination also noted clinically normal feet. Similarly, post-service VAMC treatment records do not support aggravation. Records are negative for a foot disorder, and do not reflect a current diagnosis of pes planus. The Board acknowledges that VAMC treatment medical records do contain notations of reported foot pain. However, this symptomatology was correlated by physicians to the Veteran’s diagnosed gout in the toes of his right and left feet. See 2015-2016 Atlanta VAMC Records. A claim for service connection for gout was separately adjudicated and denied in a November 2017 Rating Decision. The Veteran has not filed a formal Notice of Disagreement with this determination and the Board does not consider it a part of the present appeal. Given the lack of evidence of aggravation in or since service, the Board finds that entitlement to service connection for bilateral pes planus is not warranted. Additionally, as the record is negative for another foot disability, either diagnosed in or since service, a general claim of entitlement to a bilateral foot condition is not warranted. The Board emphasizes that the Veteran’s assertions of a current disability related to service were considered. However, he is not, from the standard of a lay person, competent to provide a medical nexus. See Kahana v. Shinseki, 24 Vet. App. 428, 438. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Therefore, entitlement to service connection for a bilateral foot condition must be denied. There is no reasonable doubt to be resolved. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The below remands are predicated on the need for VA examination. See McLendon v. Nicholson, 20 Vet. App. at 83. As a result, the discussion of evidence is limited to that necessary to meet the low threshold for finding a link between a current disability and service so as to require medical examination. See generally Locklear v. Nicholson, 20 Vet. App. 410 (2006). 1. Entitlement to service connection for a back disorder, claimed as upper/lower back is remanded. The Veteran asserts that his current diagnosis for osteoarthrosis of the spine was caused by or incurred in service. STRs reflect report and treatment for lower back pain in October 1983. The Veteran reports that despite this treatment his back-pain symptomatology never resolved, and instead continued until this day. A VA examination has not been afforded to address the Veteran’s assertion in relation to the medical evidence of record. 2. Entitlement to service connection for a right knee disorder is remanded. The Veteran asserts that his current diagnosis for right knee osteoarthritis was caused by or incurred in service. STRs reflect that on May 8, 1985 he sought treatment for a fall that resulted in right knee and right hip pain and numbness. Diagnosis resulting from the report was musculoskeletal strain. In August 2018, a VA examiner opined that the aforementioned 1985 fall caused the Veteran’s currently service-connected right hip strain. The examiner rationalized that the Veteran’s initial diagnosis, and reported persistent pain since service, supported service connection. A VA examination must be provided to address whether the Veteran’s reports of knee pain since his 1985 injury and diagnosis are sufficient to correlate his current arthritis to service. Additionally, an opinion should be obtained to ascertain the relationship, if any, between the Veteran’s right knee arthritis and his service-connected right hip strain which has been opined as present since service. 3. Entitlement to service connection for a left knee disorder is remanded. Although no left knee condition is listed in STRs, the Board finds that a remand for VA examination is also appropriate. Here the VAMC records reflect a current diagnosis for osteoarthritis and credible reports of pain since service. Additionally, as stated, an opinion is being requested to ascertain the relationship, if any, between the Veteran’s right knee arthritis and service-connected hip disability. As these conditions might all be intertwined it is appropriate to send both claims for an opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination to obtain an opinion as to the nature and etiology of any spine disorder, to include osteoarthritis. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. Following consideration of the record the examiner must discuss: (a.) Whether any identified spine disorder present during the pendency of the appeal had its onset during service, originally manifested during service, or was caused by any in-service injury, disease, or event. (b.) In rendering this opinion, the examiner must consider the Veteran’s in-service reported lower back pain in October 1983 and his reports of continuing back pain thereafter. 2. Schedule the Veteran for a bilateral knee examination to obtain an opinion as to the nature and etiology of any knee disorders, to include osteoarthritis. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. Following consideration of the record the examiner must discuss: (a.) Whether any identified knee disorders present during the pendency of the appeal had onset during service, originally manifested during service, or was caused by any in-service injury, disease, or event. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right and/or left knee disabilities are related to his service-connected right hip disability, or were aggravated (worsened) by his right hip disability. (c.) In rendering this opinion, the examiner must consider the Veteran’s March 8, 1985 treatment for a right knee and hip disability caused by a fall. Note, an August 2018 VA examiner opined the aforementioned fall caused his currently service-connected right hip strain. The examiner rationalized that the Veteran’s in-service diagnosis of a musculoskeletal strain and reported persistent pain since injury were sufficient to support a nexus between his current diagnosis and service. As the Veteran’s knee was injured in the same fall any opinion provided must address whether this fall also lead to any current knee disability, to include osteoarthritis. Moreover, the examiner should address whether the Veteran’s right hip strain which has been present since service, could have caused or aggravated any underlying knee disability. The examiner must provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel