Citation Nr: 18154554 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 10-36 467A DATE: December 3, 2018 ORDER Entitlement to service connection for flat feet is denied. Entitlement to service connection for bilateral hammertoes is denied. Entitlement to service connection for obstructive sleep apnea is denied. REMANDED Entitlement to a disability evaluation in excess of 10 percent for the Veteran’s mechanical low back pain with scoliosis is remanded. FINDINGS OF FACT 1. There is no current diagnosis of flat feet related to service. 2. The Veteran’s bilateral hammertoes did not originate in service and is not otherwise etiologically related to service. 3. The Veteran’s obstructive sleep apnea did not originate in service and is not otherwise etiologically related to service.   CONCLUSIONS OF LAW 1. The criteria for service connection for flat feet are not met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. The criteria for service connection for bilateral hammertoes are not met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 3. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1994 to November 1997, and additional periods of active duty with the Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In March 2015, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO. Most recently, in June 2017, the Board remanded this matter for further evidentiary development. Service Connection 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). 1. FLAT FEET The Veteran seeks service connection for flat feet. At the outset, the Board notes that the Veteran’s service treatment records (STRs) reflect a July 25, 1994 applicant medical prescreening form, which notes “1989 temporarily disqualified (TDQ) for flat feet.” A July 27, 1994 enlistment examination report demonstrates an abnormal clinical evaluation of the feet. However, only a diagnosis of hammertoes was noted. Specifically, there was no notation of a diagnosis of flat feet upon entrance into military service. During service, an August 1997 report of medical history reflects a physician’s summary of the Veteran’s foot trouble and pain, to include as due to flat feet. Post-service, at an April 1998 VA examination, the Veteran reported that he began having trouble with his feet in 1995 at Fort Bragg. He reported that he was diagnosed by a doctor who gave him orthopedic insoles which helped. In May 1999, a letter was submitted by Dr. J. M. at the Lewis Gale Clinic, which reflects that on examination of both feet, there was obvious pes planus. Dr. J. M. recommended Neoprene inserts due to the Veteran’s flat feet. An August 1999 report of medical examination reflects a diagnosis of symptomatic pes planus. A June 2003 VA treatment record shows that the Veteran was seen for his flat feet. It was noted that he needed new orthotics. An August 2003 VA treatment record shows that the Veteran presented for an initial visit to podiatry. In an October 2012 statement, the Veteran asserted that his flat feet were aggravated as a result of extensive marching in military service. The Veteran was afforded a VA examination of his flat feet in December 2012. The examiner opined that the Veteran’s currently diagnosed flat feet, “which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” The examiner reasoned that there were no records of worsening of the Veteran’s flat feet while on active duty or since. The examiner further reasoned that the Veteran’s flat feet was simply listed as a condition and treated once in 2003 by a podiatrist. As noted above, flat feet was not a noted condition on entrance into military service. Consequently, the Board must find that the Veteran was presumed sound on entrance into military service as to his flat feet. See 38 U.S.C. § 1111 (2012). In order to rebut the presumption of soundness, VA needs to show by clear and unmistakable evidence both that the disability pre-existed service AND was not aggravated during service. Given that there is a complaint of foot trouble and pain due to flat feet noted in service, the Board finds VA cannot meet the second prong of showing that the Veteran’s flat feet were clearly and unmistakably not aggravated during service. Accordingly, VA cannot rebut the presumption of soundness in this case and this case is one for direct service connection. Upon remand in June 2017, the Board found the December 2012 VA examiner’s opinion to be inadequate. Accordingly, a new VA examination and medical opinion were obtained in July 2017. The examiner was to presume the Veteran had no pre-existing flat feet disability upon entry into military service and opine whether the Veteran’s current flat feet at least as likely as not began in or are otherwise related to the Veteran’s military service, to include the 1997 record noting foot trouble and pain, to include as due to hammertoes. The examiner acknowledged the August 1997 report of medical history noting a physician’s summary of the Veteran’s foot trouble and pain, to include as due to flat feet. However, the examiner further stated that “due to the complicated nature of this case,” he discussed the case and x-rays with Dr. Jonathan Brantley, DPM who is chief of podiatry at Richmond VAMC and who has seen this Veteran multiple times in the past. Dr. Brantley determined that the Veteran “is definitely not flatfooted and that the pes planus/flat feet diagnosis made in the past was an error in diagnosis, which is not unusual for this condition.” He further stated that “the Veteran has a bilateral foot deformity called anterior global cavus, which was no doubt the cause of his rejection from enlistment into the armed forces in 1989 and is a condition that leads to hammertoes.”  In this case, the examiner has confirmed that the Veteran does not have a diagnosis of flat feet and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that the July 2017 foot conditions Disability Benefits Questionnaire (DBQ) also identified a diagnosis of osteoarthritis of the bilateral first metatarsophalangeal (MTP) joints. The Board notes that the Veteran was not shown to have arthritis in service or within one year following service, and the evidence of record does not report a diagnosis until nearly 20 years after service. Thus, competent evidence of a nexus between the current osteoarthritis of the bilateral first MTP joint and service is necessary to substantiate a claim for service connection. However, there is no competent evidence of record that even suggests the Veteran’s osteoarthritis of the bilateral first MTP joint is related to service. Consideration has been given to the Veteran’s lay statements that he suffers from flat feet. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosing/identifying flat feet, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). That is, although the Veteran is competent to symptoms, such as foot pain, there is no indication that the Veteran is competent to diagnose flat feet or to opine as to the etiology of his symptoms. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis. Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Conversely, the medical examiner evaluating the Veteran in July 2017, with medical experience and training and who has previously evaluated the Veteran and participated in his care, determined that the Veteran does not have a diagnosis of flat feet and instead has a bilateral foot deformity called anterior global cavus which, as noted below, clearly and unmistakably pre-existed service and was not aggravated by service. Accordingly, the Board finds that there is no competent evidence of record providing a current diagnosis of flat feet for the Veteran, nor is there any competent evidence of record relating any of the current diagnoses of the Veteran’s feet, to include osteoarthritis of the bilateral first MTP, to his military 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 for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. HAMMERTOES The Veteran seeks service connection for bilateral hammertoes. In considering the STRs, a July 27, 1994 enlistment examination report demonstrates an abnormal clinical evaluation of the feet. A diagnosis of hammertoes was noted. With an explicit finding of hammertoes upon enlistment, the presumption of soundness does not attach with respect to this disability, and the only benefit that can be awarded for hammertoes is service connection on the basis of aggravation of the pre-existing bilateral hammertoes, by application of 38 U.S.C. § 1153, and 38 C.F.R. § 3.306. Further review of the claims file reveals an August 1997 report of medical history reflecting a physician’s summary of the Veteran’s foot trouble and pain, to include as due to hammertoes. Post-service, during an April 1998 VA examination, the Veteran reported that he began having trouble with toes in 1995 at Fort Bragg. He stated that he saw a doctor who diagnosed him and he was given orthopedic insoles, which helped. In a May 1999 letter by Dr. J. M., he noted that examination of both feet revealed obvious pes planus with hammertoes two through five on each foot. An August 1999 report of medical examination notes a diagnosis of hammertoes. A June 2003 VA treatment record shows that the Veteran was seen for hammertoes. It was noted that he needed new orthotics and he was referred to podiatry to evaluate his hammertoes. An August 2003 VA treatment record reflects the Veteran’s complaints of painful hammertoe deformity to both feet. He stated that his toes had always been hammered and he wanted to consider treatment to fix them. He reported trying orthopedic cushions to help alleviate pain. An August 2006 VA treatment record reveals a diagnosis of minimal hammertoes due to tight intrinsic flexors and high arch. The Veteran was afforded a VA examination in December 2012. Upon review of the Veteran’s claims file, and interview and examination of the Veteran, the examiner opined that the Veteran’s currently diagnosed hammertoes, “which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” The examiner reasoned that there were no records of worsening of the Veteran’s hammertoes while on active duty or since. The examiner further reasoned that the Veteran’s hammertoes were simply listed as a condition and treated once in 2003 by a podiatrist. Upon remand in June 2017, the Board found that the opinion provided was not adequate as the examiner did not address the August 1997 report of medical history reflecting a physician’s summary of the Veteran’s foot trouble and pain, to include as due to hammertoes. Accordingly, a new VA examination and medical opinion were obtained in July 2017 to evaluate whether the Veteran’s bilateral hammertoes, which were noted on entry and pre-existed service, were aggravated beyond the natural progression of the condition by service. The examiner acknowledged that the August 1997 note regarding hammertoes and foot pain indicates that the Veteran experienced acute foot pain with overuse, which would be the case with long marches and other heavy foot use, but there is no indication from that or any other notations in medical records of aggravation of the pre-existing foot condition beyond its natural progression. The examiner further stated that there is no documentation of chronic foot problems during military service or within one year of service. In conclusion, the examiner opined that it was less likely than not that the Veteran’s bilateral hammertoes and anterior global cavus were aggravated during service beyond the natural progression of the disorder. While lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, identifying whether there was aggravation of his bilateral hammertoes beyond the normal progression, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). That is, although the Veteran is competent to symptoms, such as foot pain, there is no indication that the Veteran is competent to opine as to whether there was aggravation of the condition in service beyond its natural progression. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render such a diagnosis. Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Accordingly, the Board finds that there is no competent evidence of demonstrating the Veteran’s pre-existing hammertoes were aggravated during military 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 for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. OBSTRUCTIVE SLEEP APNEA The Veteran seeks service connection for obstructive sleep apnea. Pursuant to the June 2017 Board remand, a VA opinion was to be obtained to determine whether it is at least as likely as the Veteran’s sleep apnea had its onset in service or was otherwise related to injury or disease in service. In providing the opinion, the examiner was to consider the Veteran’s lay statements regarding experiencing fatigue, tiredness, and constant yawning in service. A VA opinion was obtained in July 2017. In acknowledging the Veteran’s lay statements regarding fatigue, tiredness, and constant yawning in service, the July 2017 VA examiner pointed out several things. The examiner indicated that the Veteran’s statements were entirely subjective and occurred many years after his 1997 discharge. The examiner stated, “subjective statements by patients and Veterans are frequently inaccurate which is why the standard medical notes are called SOAP notes, separating subjective statements by patients from objective facts, assessment, and plan; there is always the possibility that pending compensation may influence subjectivity; and fatigue, tiredness, and constant yawning mean absolutely nothing in regards to diagnosis and at best may indicate sleep deprivation, which may be caused by late night TV or movies, poor sleep hygiene, alcohol, and many other etiologies besides sleep apnea.” The examiner further stated, “no competent physician would make a diagnosis of sleep apnea with those symptoms alone in the absence of a sleep study.” Finally, the examiner indicated that there is no documentation of the Veteran’s complaints of fatigue, tiredness, and constant yawning in his STRs. The examiner reiterated a September 2016 VA opinion stating, “obstructive sleep apnea is a condition closely associated with increasing body mass index which is a function of weight and height and obesity. As body mass index or BMI increases, airway redundancy increases leading to apneic or airway blockage spells during breathing and the severity of obstructive sleep apnea is defined by the length and number of such spells. This Veteran weighed 212 pounds when he came into service in 1994 and [his] height has been consistent at 74 inches for a BMI of 27 at that time. The three years of service most likely increased [his] fitness and decreased [his] weight since his discharge weight in 1997 was 195 for a BMI of 25. Eleven years after leaving service, [the] Veteran’s weight increased to 262 pounds with a BMI of 28 at the time of his first sleep study in 2008. The Veteran’s weight at time of 2016 sleep study was 271 pounds for a BMI of 35.” The examiner opined that “military service in no way contributed to the Veteran’s sleep apnea and may have even delayed onset of his obstructive sleep apnea since he actually lost weight during his military service, which most experts would consider [to be the] best way to avoid obstructive sleep apnea.” The Board notes that lay persons such as the Veteran are competent to provide opinions on some medical issues. However, in this case, the question of whether the Veteran has obstructive sleep apnea that is related to his active service falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The intricacies in diagnosing obstructive sleep apnea and opining about the etiology of such a disability are issues that require the expertise of a medical professional. Therefore, the Veteran is not competent to provide an opinion on such issues. While the Veteran can report symptoms that he experiences, he does not have the necessary training to make medical opinions. Thus, after reviewing the evidence of record, the Board finds that the Veteran’s obstructive sleep apnea did not originate in service and that there is no causal connection between the current obstructive sleep apnea and service. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for obstructive sleep apnea. The claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). The preponderance of the evidence is against a finding that an in-service event caused the Veteran’s current obstructive sleep apnea or that the current obstructive sleep apnea commenced during service. Therefore, the criteria for service connection for the Veteran’s obstructive sleep apnea have not been met and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND LUMBAR SPINE DISABILITY is remanded. Pursuant to the June 2017 Board remand, the Veteran was afforded another VA examination of his lumbar spine in July 2017. He expressed having flare-ups of worsening back pain if he “overdoes it.” The examination was not being conducted immediately after repetitive use over time. When asked if pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, the examiner was unable to say without mere speculation because the examination was not being conducted during repeated use over time and the examination was not being conducted during a flare-up. When asked if pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups, the examiner was unable to say without mere speculation because the examination was not being conducted during a flare-up. While the Veteran’s claim was in remand status, the United States Court of Appeals for Veterans Claims (Court) issued a new precedential decision which also requires that certain claims also be remanded. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 10. Thus, this examination is insufficient for adjudication purposes. Therefore, on remand, another examination should be performed in order to address flare-ups of the Veteran’s lumbar spine. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lumbar spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The spine should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).” M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel