Citation Nr: 18151929 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-42 436 DATE: November 20, 2018 ORDER Service connection for a right hip disability is denied. Service connection for a right ankle disability is denied. Service connection for pes planus is denied. Service connection for GERD is granted. Service connection for a dental disorder due to bruxism is denied. REMANDED Service connection for a sciatica of the left lower extremity is remanded. Service connection for a sciatica of the right lower extremity is remanded. A rating in excess of 30 percent for an adjustment disorder with mixed anxiety and depressed mood is remanded. The issue of an increased rating a thoracic compression condition is remanded. The issue of an increased rating for a cervical spine disability is remanded. The issue of a compensable rating for a right knee disability is remanded. The issue of a compensable rating for restless leg syndrome of the left lower extremity is remanded. The issue of a compensable rating for restless leg syndrome of the right lower extremity is remanded. FINDINGS OF FACTS 1. The weight of the evidence is against finding that the Veteran has a current chronic right hip disability. 2. The weight of the evidence is against finding that the Veteran has a current chronic right ankle disability. 3. The Veteran’s bilateral pes planus was noted upon entry into service, therefore preexisted his entrance into active service, and the presumption of soundness does not apply. 4. Competent and credible medical evidence does not show worsening of the Veteran’s pes planus during active duty. 5. The evidence suggests that the Veteran’s GERD began during service and has continued since that time. 6. The Veteran’s bruxism has not caused additional dental disorders. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for pes planus have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. 4. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. § 3.303. 5. The criteria for service connection for dental disorder due to bruxism have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1999 to March 2003, and from April 2009 to May 2012. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may also be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for a chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Right hip Service treatment records show that the Veteran complained of hip pain and was diagnosed with iliotibial band friction syndrome. He was subsequently recommended for hip stabilization program in October 2009. However, by the time of separation, the Veteran did not demonstrate any ongoing hip disorder. The Veteran reported no hip abnormalities on his report of medical history in April 2012. Post service, at a July 2012 VA examination, the examiner noted that while in service, the Veteran developed a back disability. The Veteran had reported pain radiating down to his hips, buttocks, and legs. Upon examination, the Veteran did not report any flare ups. His range of motion was within normal limits with no objective evidence of pain. There was no additional limitation of motion after a repetitive use testing. There was no functional loss or functional impairment. A muscle strength test revealed normal results. There was no evidence of ankylosis. Further diagnostic testing revealed no hip disability. Aside from his own lay statement, the Veteran has not submitted any objective evidence that indicates a current hip disability. Without the requisite medical knowledge and training, the Veteran is not competent to provide a diagnosis relating to his hip. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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 disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). Thus, the benefit of the doubt rule does not apply, and service connection for a right hip disability is denied. 2. Right Ankle The Veteran contends that he developed a chronic right ankle disability as a result of his military service. Service treatment records dated August 2001 documented a right ankle sprain. The Veteran continued to report pain in January 2002, but there are no further reports of ankle pain, suggesting that the condition had resolved. The Veteran’s re-enlistment examination dated June 2008 revealed no problems relating to his ankle. A report of medical history shows that the Veteran indicated no outstanding problems, especially with his ankle. Service treatment records dated October 2011 documented normal stimulation response, normal range of motion and normal strength in the right ankle. Service treatment records dated February 2012 also reported a normal right ankle. Post service, a VA examination dated July 2012 found no current right ankle disability. The Veteran told the examiner that in 2009, he sustained a right ankle injury after rolling on it several times. It worsened during his deployment to Germany. The examiner noted that this injury was not reflected in the Veteran’s service treatment records. Upon examination, the Veteran demonstrated normal range of motion and strength. He did not report any pain, flare ups, functional loss or impairment. There was no objective evidence of instability or ankylosis. Given the lack of a current disability, the Board finds that service connection for a right ankle condition is not warranted. A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer, 3 Vet. App. 223, 225. Thus, service connection for a right ankle disability is denied. 3. Pes planus Upon entry to service, the Veteran’s enlistment examination in October 1999 noted a preexisting mild pes planus. It is his assertion that his pes planus was aggravated by his military service. The Federal Circuit has distinguished between those cases in which the pre-existing condition is noted upon entry into service, and cases in which the pre-existence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In a case where there is no pre-existing condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition pre-existed service and (b) the pre-existing condition was not aggravated by service. Wagner, 370 F.3d at 1345. “[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” Wagner, 370 F.3d at 1096. To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b). In this case, the Veteran’s pes planus was noted upon entry, thus the presumption of soundness does not apply. Since the Veteran can only bring a claim for aggravation of the preexisting condition, the Veteran has the burden to show aggravation with evidence of symptomatic manifestations of the condition during service. If the presumption of aggravation arises, the burden shifts to VA to establish a lack of aggravation. Wagner, 370 F.3d 1089 at 1096. 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 such increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable (obvious, manifest, and undebatable) evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306 (b). After his entry into service, the Veteran’s service treatment records note the existence of his pes planus and complaints of pain. As noted, if a worsening of a pre-existing condition is shown, VA has the burden of rebutting the presumption. While the evidence did not necessarily show worsening during service, VA nevertheless obtained a VA examination in July 2012 and again in March 2013 to investigate this issue. The July 2012 VA examiner noted the Veteran’s pes planus in 2001 and he was advised to use custom orthotics on both feet. He was prescribed inserts in July 2010. Upon physical examination, the Veteran reported pain on both feet and that it is accentuated on use. There was no swelling, callouses, deformities, or marked pronation. At the March 2013 VA examination, the examiner noted the existence of the Veteran’s pes planus. He also acknowledged that between 2001 and 2002, the Veteran was seen on several occasions for bilateral pes planus and was advised to wear orthotics. At times, he was also advised against running and jumping. However, the examiner observed that subsequent treatment records from 2003 to 2012 show no complaints and no significant limitations. In fact, at the time of his second enlistment in June 2008, the Veteran specifically denied any problems with his feet. There were also no significant limitations at the time of his second period of service and no treatment for pes planus. By the time of his separation examination in April 2012, his feet were reported as normal. A February 2013 x-ray of the feet revealed ‘very mild pes planus.’ The Veteran denied any symptoms, but only stated to have flat feet with fallen arches. There was no indication of any injury to the feet during his second period of service and overall, no worsening of the pes planus. The Veteran reported to the examiner that orthotics helped. Overall, the examiner found that the Veteran’s bilateral pes planus was of a mild degree and that it was not aggravated by the Veteran’s military service. Other than his own assertion, there is no evidence on record that suggests the Veteran’s pes planus was worsened by his military service. The Board then turns to the probative medical evidence, which is the July 2012 and the March 2013 VA medical opinion. The March 2013 VA examination report concluded that the Veteran’s pes planus did not worsen beyond the natural progression of the disability. The Veteran has the burden to show aggravation with evidence of symptomatic manifestations of pes planus during service. Here, there is no competent evidence to show an in-service increase or aggravation of pes planus, as x-rays following service showed only mild pes planus. Since the Veteran has not shown measured worsening of his pes planus, service connection is not warranted. A discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d 1089 at 1096. Accordingly, service connection for bilateral pes planus is not warranted. 4. GERD It is the Veteran’s contention that he developed GERD during his period of active service. Service treatment records dated September 2002 documented complaints of stomach problems, abdominal pain, vomiting, and diarrhea. October 2002 and January 2003 noted a history of GERD and medication for treatment. At his re-enlistment examination in June 2008, no abnormalities were reported regarding the Veteran’s mouth and throat. The Veteran, himself, specifically denied any problems with his stomach or throat in his report of medical history. At his July 2012 VA examination, the Veteran reported suffering from GERD in 2009. He recalled symptoms such as a sour sensation in his stomach, refluxing “liquid with nasty smell,” with occasional nausea, vomiting and diarrhea. Since that time, he had avoided coffee, tea, peppermint, and chocolate. The examiner noted that the Veteran’s service treatment records reported a diagnosis of GERD, with nausea, vomiting, and melena. The Veteran reported experiencing pyrosis, reflux, and regurgitation. Diagnostic testing at the examination was negative for GERD, but it was nevertheless noted that the Veteran was taking medication daily for the condition. As such, the record establishes that the Veteran began experiencing symptoms of GERD in service and was diagnosed with such and that he continued to take medication to address these symptoms during the course of his appeal. Accordingly, service connection for GERD is granted. 5. Bruxism The Veteran contends that he developed bruxism as a result of his service. Service treatment records in 2012 noted that the Veteran had organic sleep-related bruxism. Post service, at an August 2012 VA examination, the examiner noted a diagnosis of sleep related bruxism. The Veteran asserted that in 2010, he noticed headaches after he wakes up. He was told by is dentist that he had been grinding his teeth. A soft mandibular occlusal guard was made. However, he no longer has the guard. The Veteran denied any history of trauma to the face or jaws. A panographic image revealed that the Veteran has occlusal/incisal wear consistent with a history of bruxism. He also has a pre-existing malocclusion. The examiner concluded that bruxism is a development neuromuscular parafunctional habit that is not caused by the Veteran’s military service. Dental disorders are treated differently than other medical disorders in the VA benefits system. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. Bruxism is not a dental disability for which service connection can be granted, however, bruxism can create secondary dental disorders. Therefore, service connection may be granted for a dental disability which results from bruxism. In this case, the Veteran is service connected for a psychiatric disability, and his bruxism may be a secondary symptom of this condition. However, the Veteran has not identified evidence which documents a dental disability due to his bruxism for which compensation may be paid under VA regulation. Without such disability, service connection is not warranted. REASONS FOR REMAND 1. Sleep Apnea The issue of service connection for sleep apnea is remanded for further development. The Veteran contends that he developed sleep apnea as a result of his military service. His service treatment records dated November 2011 showed that the Veteran was evaluated for sleep disturbance. He reported interrupted sleep and trouble falling back asleep. Post service, the July 2012 VA examination showed no diagnosis of sleep apnea. However, years later in December 2017, VA treatment record revealed that the Veteran had an average of 50 episodes of shallow breathing or a complete absence of breathing, suggesting severe sleep apnea. Furthermore, the Veteran’s representative asserted in November 2017, that the Veteran’s sleep apnea may be related to his service connected psychiatric condition. 2. Left and Right Leg Sciatica The issue of service connection for a left and right leg sciatica is remanded for further development. The Veteran’s service treatment records noted sciatica as part of the Veteran’s problem list. At his enlistment examination in June 2008, no abnormalities were found regarding his lower extremities. He reported being in good health on his report of medical history. In November 2011, the Veteran reported shooting pain in his right leg. There was no mention of left leg pain. Despite the lack of a diagnosis of sciatica of the left and right legs pursuant to the July 2012 VA examination, the Veteran has continued to complain of pain and numbness, specifically in his right leg. Given that the Veteran also seeks entitlement to an increased rating for his back disability, additional assessment is necessary to determine whether the Veteran has also developed neurological changes to his lower legs. 3. Increased psychiatric rating. The Veteran’s claim for increased rating for his service connected psychiatric disorder is remanded. Since the August 2012 VA examination, the Veteran has submitted an October 2017 statement, asserting worsening symptoms. In support, the Veteran’s spouse also submitted a November 2017 statement describing the Veteran’s panic attacks. Thus, the Board finds that a new VA examination is warranted to assess the severity of the Veteran’s service connected psychiatric disorder. 4. Increased rating for thoracic compression is remanded. The Veteran’s increased rating claim for a thoracic compression fracture is remanded for further development. The Veteran was granted service connection for his thoracic compression fracture pursuant to a July 2012 VA examination. Given the lapse of time, the Board finds that a new VA examination is warranted to assess the current severity of the Veteran’s thoracic disability. 5. The claim for a higher rating for a cervical spine disability is remanded. The Veteran’s increased rating claim for a cervical spine disability is remanded for further development. The Veteran was granted service connection for his cervical spine disability pursuant to a July 2012 VA examination. Since then, the Veteran has complained of worsening pain, as described in his October 2017 statement. Given the lapse of time, the Board finds that a new VA examination is warranted to assess the current severity of the Veteran’s cervical spine disability. 6. Entitlement to a compensable rating for a right knee is remanded. The Veteran’s claim for increased rating for a service connected right knee disability. The Veteran was granted service connection pursuant to the July 2012 VA examination. Given the lapse of time, the Board finds that a new VA examination is warranted to assess the current severity of the Veteran’s right knee disability. 7. A compensable rating for left and right restless leg syndrome is remanded. The Veteran’s claim for increased rating for a service connected left and right restless leg syndrome is remanded for further development. The Veteran was granted service connection for his restless leg syndrome at a noncompensable rating based on the July 2012 VA examination. Since then, the Veteran has asserted worsening symptoms. Thus, a new examination is warranted to assess the current severity of his restless leg syndrome. 8. Increased rating to a compensable rating for hypertension The Veteran’s claim for increased rating for hypertension is remanded for further development. The Veteran was granted service connection for hypertension and assigned noncompensable rating pursuant to the May 2012 VA examination report. Given the lapse in years, the Board finds that a new VA examination is warranted to determine the current severity of the Veteran’s hypertension. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records relating to the Veteran’s claims. 2. Schedule the Veteran for a VA examination regarding his sleep apnea. The examiner should determine whether the Veteran has sleep apnea, and if so should address the following questions: a) Is it at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea had onset in or is otherwise related to his military service. b) Is it at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea was caused by the Veteran’s service connected psychiatric disorder. Why or why not? c) Is it at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea was aggravated (made worse) by the Veteran’s service connected psychiatric disorder. Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of the sleep apnea by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the sleep apnea. If such cannot be done, it should be explained why. In providing the requested opinions, the examiner should consider 1) the Veteran’s service treatment record dating November 2011, which noted an incident of sleep disturbance 2) the July 2012 VA examination report found no diagnosis of sleep apnea and the December 2017 VA treatment record, which suggested severe sleep apnea. 3. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his service connected adjustment disorder (with mixed anxiety and depressed mood). 4. Schedule the Veteran for a VA examination to determine the current severity of his service connected hypertension. 5. Schedule the Veteran for a VA examination to determine the current severity of his service connected right knee disability. 6. Schedule the Veteran for a VA examination to determine the current severity of his service connected thoracic compression fracture. In so doing, the examiner should address whether the Veteran has any neurologic impairment as a result of his back disability. 7. Schedule the Veteran for a VA examination to determine the current severity of his service connected cervical spine disability. In so doing, the examiner should address whether the Veteran has any neurologic impairment as a result of his cervical spine disability. (Continued on the next page)   8. Schedule the Veteran for a VA examination to determine the current severity of his service connected left and right restless leg syndrome. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel