Citation Nr: 18157081 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-53 903 DATE: December 11, 2018 ORDER Entitlement to service connection for right ankle tarsal coalition calcaneonavicular is denied. Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. The Veteran’s right ankle tarsal coalition calcaneonavicular is a congenital disease which was not aggravated by his active military service. 2. The preponderance of the evidence is against a finding that the Veteran’s borderline bilateral pes planus was aggravated by his active military service. 3. The Veteran’s OSA cannot be satisfactorily disassociated from his period of active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ankle tarsal coalition calcaneonavicular have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for OSA are met. 38 U.S.C. §§ 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from May 1987 to August 1987 and from January 1992 to October 2014. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from January 2015 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland which the RO, inter alia, denied service connection for insomnia, bilateral pes planus, and right ankle tarsal coalition calcaneonavicular. The Veteran timely filed a notice of disagreement (NOD) and substantive appeal where he specifically limited his appeal to the issues as noted above. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). 1. Entitlement to service connection for a right ankle disability Service treatment records (STRs) reflect years of numerous complaints of right ankle pain. The April 1987 enlistment report of examination notes a normal clinical evaluation for the lower extremities (except the feet). Additionally, an October 1991 report of medical examination, before the Veteran’s second period of service, reflects a normal clinical evaluation for the lower extremities (except the feet). In April 1999, following a sprain, the Veteran underwent radiology testing which revealed right ankle pain which appeared normal with no significant abnormalities. In 2011, radiology imaging of the right ankle revealed an impression of fibrous or cartilaginous coalition at the medial aspect of the third tarsometatarsal joint. There was no evidence of calcaneonavicular coalition. There was osteochondral lesion of the medial corner of the talar dome. The July 2014 separation report of medical examination reflects a normal clinical evaluation for the lower extremities (except feet). However, in the Veteran’s separation report of medical history, the Veteran reports swollen or painful joints. Post-service, in December 2014, a computed tomography (CT) scan of the right ankle was performed in connection with the VA examination which revealed an impression of fibrous or cartilaginous coalition at the medial aspect of the third tarsometatarsal joint; no evidence of calcaneonavicular coalition, and osteochondral lesion the medial corner of the talar dome. The Veteran was diagnosed with osteochondritis dissecans to include osteochondral fracture of the right ankle. The examiner reported that the Veteran suffered a significant injury to the right ankle in 1999. He classified this as a “bad sprain,” but x-rays were taken which were reported as normal, and he was not given a cast or crutches. The examiner reported that he was only placed on profile. He was better in two to three months. The examiner noted that repeat studies in 2011 suggested possible osteochondral fracture of the talus. The Veteran indicated his symptoms included ankle pain if he steps wrong or attempts to run. The examiner reported that it is unlikely that these symptoms would significantly limit functional ability when used repetitively over a period of time. In a February 2015 VA medical opinion, a physician opined that the talonavicular coalition is a variant of normal, congenital condition that is not service-connected. In an April 2015 addendum opinion, the physician found that osteochondritis dissecans was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness. As rationale, Dr. Sanders stated that the two conditions, “osteochondritis dissecans to include osteochondral fracture” and tarsal coalition calcaneonavicular right ankle are two separate entities. There is no aggravation of the osteochondral fracture/osteochondritis dissecans as it is directly service-connected from his history of trauma. The physician found that the Veteran’s osteochondritis dissecans/osteochondral fracture is not congenital; however, the tarsal coalition calcaneonavicular right ankle is congenital. He opined that the tarsal coalition calcaneonavicular clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. As rationale, the examiner reported that the right ankle talonavicular coalition (diagnosed by Dr. Sanders on December 18, 2014) is a variant of a normal, congenital condition which causes no functional disability in this Veteran’s case, therefore there is no evidence of aggravation. Medical treatment records reflect continued treatment for the Veteran’s right ankle disabilities. Upon review of the evidence of record, the Board finds that service connection for right ankle tarsal coalition calcaneonavicular is not warranted. In the April 2015 VA medical opinion, the physician found that the right ankle tarsal coalition calcaneonavicular was a congenital condition that clearly and unmistakably existed prior to service. The Board notes that “[c]ongenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not disease or injuries within the meaning of applicable legislation.” 38 C.F.R. § 3.303 (c). See also 38 C.F.R. § 4.127 (“personality disorders are not diseases or injuries for compensation purposes and . . . disability resulting from them may not be service-connected”). Thus, if a disorder is a “defect,” a veteran is precluded from receiving disability benefits to compensate him for the effects of that disorder. Winn v. Brown, 8 Vet. App. 510, 516 (1996). In contrast, disability benefits may be awarded for congenital diseases. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Generally, a congenital disease, “by its very nature, preexisted the claimant’s military service,” and service connection for disability due to such disease typically turns on “whether manifestations of the disease in service constituted ‘aggravation’ of the condition.” VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (Oct. 30, 1990). In determining whether a disorder is disease or defect, the rule is that “a congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect.” O’Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. See 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304 (b). The Board points out, however, that while the presumption of soundness does apply if a veteran’s congenital disease is not noted at entry into service, the presumption of soundness does not apply to congenital defects because a defect of congenital, familial, or hereditary origin by its very nature pre-exists service. Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that presumption of soundness does not apply to congenital defects); Quirin, 22 Vet. App. at 396-97; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). As the Veteran’s right ankle tarsal coalition calcaneonavicular is a disease and not a defect, he is considered sound on entrance. The Board finds that the Veteran has a current diagnosis of osteochondritis dissecans (which is service-connected) and right ankle tarsal coalition calcaneonavicular as noted in his VA examination report. Thus, the current disability requirement has been met. However, STRs do not reflect treatment or a diagnosis of right ankle tarsal coalition calcaneonavicular. This is not diagnosed until the December 2014 VA examination. Additionally, the April 2015 VA physician found that the Veteran’s right ankle talonavicular coalition is a variant of a normal, congenital condition which caused no functional disability in this Veteran’s case, therefore there is no evidence of aggravation. This is supported by the STRs as the Veteran was solely placed on medical profile as a result of a right ankle sprain, indicating that any other right ankle disability did not result in a functional disability. Furthermore, in the December 2014 VA examination report, the examiner reported that it is unlikely that the Veteran’s right ankle symptoms would significantly limit functional ability when used repetitively over a period of time. No other opinions were submitted in connection with the claim. Thus, the medical evidence is against a finding that the Veteran’s right ankle talonavicular coalition is related to service. Entitlement to service connection for right ankle talonavicular coalition must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral pes planus STRs reflect that the April 1987 enlistment report of examination reflects that pes planus one to two degrees was noted on entrance. Additionally, the Veteran was diagnosed with persistent borderline pes planus without acute abnormality in March 2011. The July 2014 separation report of medical examination noted an abnormal clinical evaluation of the feet. The examiner reported that he had a small bunion on his right foot. Additionally, he noted asymptomatic pes planus. In his July 2014 self-report of medical history, the Veteran reported foot trouble and reported his right foot bunion. Post-service, in December 2014, a CT scan of the Veteran’s feet was performed in connection with the VA examination which revealed an impression of persistent borderline pes planus without acute abnormality. The Veteran was diagnosed with bilateral pes planus and bilateral fasciitis. The examiner reported that the Veteran’s complaints of foot pain are difficult to separate from his complaints of ankle pain. He reported that as far as the Veteran’s actual foot discomfort, he has a prominent right first metatarsal phalangeal joint that is not painful, and discomfort in the soles of his feet with weight-bearing. The Veteran reported that the only time he had problems with his feet during his service was when he was breaking in new boots. Additionally, the Veteran reported minimal pain of the foot with no functional loss or impairment. In a February 2015 VA medical opinion, the examiner opined that the Veteran’s bilateral borderline pes planus was not aggravated by service. He reported that the Veteran does not have flat foot deformity clinically, but by x-ray criteria, he is one degree below the cutoff of 16 degrees for the calcaneal angles bilaterally. He stated that this was initially diagnosed in the service, but was present prior to the service. He opined that it did not prevent 22 years of service activities. He reported that a review of clinic notes for foot problems did not always differentiate between the ankle, foot, and plantar fasciitis. He stated that by history and clinically, his main problem is plantar fasciitis, greater on the right than the left which he found was due to active military service. He reported that a review of his STRs reflect most of the referrals to x-ray studies of his feet showed minor borderline flat foot deformity. This diagnosis was also made clinically on entrance into the service and two times during office visits. He stated that the Veteran’s main complaints were with the right ankle. He reported that there is common confusion between symptoms of the foot and symptoms of the ankle. He concluded that aggravation requires symptoms before the service and after the service to determine. He stated that other than the right ankle problem and the plantar fasciitis, the Veteran had no problems with his feet during service except when he was breaking in new boots and found no evidence of aggravation. In his February 2016 NOD, the Veteran reported that he stood for 22 hours as an operation room technician which involved a lot of standing in one place during hours of assisting in surgery. Medical treatment records reflect treatment for borderline bilateral pes planus. Upon review of the evidence of record, the Board finds that service connection for bilateral pes planus must be denied. In this case, the Veteran’s STRs include an April 1987 medical examination at entrance which noted that the Veteran had pes planus one to two degrees. Consequently, the Board finds that bilateral pes planus was noted at acceptance, examination, or enrollment into the Veteran’s service and, thus, the presumption of soundness does not apply. Therefore, the only issue is whether the bilateral pes planus was aggravated by service. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) (“There is a related but distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service. This provision is known as the ‘presumption of aggravation’”). A preexisting injury or disease will be considered to have been aggravated by active duty 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 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). These provisions apply to only one situation: where the induction examination notes a preexisting condition that is alleged to have been aggravated. Horn, 25 Vet. App. at 238 (quoting Wagner, 370 F.3d at 1096) (“[I]f a preexisting disorder is noted upon entry into service . . . the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation.”). The evidence does not reflect that there was an increase in severity of his borderline bilateral pes planus during service. While the July 2014 separation examination reflects an abnormal clinical evaluation for the feet, the physician specifically noted that the Veteran’s pes planus was asymptomatic. Moreover, in February 2015, the VA physician explained the reasons for his conclusions based on an accurate and comprehensive review of the relevant information in the claims file, including the Veteran’s lay statements, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). While the examiner did not specifically discuss the Veteran’s statement that he stood for 22 hours as part of his duties in service in his rationale, reading the opinion as a whole and in the context of the evidence of record, the examiner’s opinion was based on an analysis of all of the evidence. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no contrary medical opinion or evidence in the claims file indicating that the Veteran’s borderline bilateral pes planus increased in severity during service. As the Veteran’s borderline bilateral pes planus was noted when he was examined, accepted, and enrolled for his period of service, the presumption of soundness is not for application. As the only basis for service connection in this situation would be due to aggravation of the preexisting borderline bilateral pes planus, and the weight of the evidence is against such aggravation, entitlement to service connection for bilateral pes planus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for OSA STRs reflect that on entrance in April 1987, the report of medical examination reflected a normal clinical evaluation for his lungs and chest. In his July 2014 separation report of medical history, the Veteran reported that he had frequent trouble sleeping. He explained that he would stay awake for hours while lying down. In the July 2014 report of medical examination, the examiner noted that the Veteran had intermittent insomnia during the night which he self-managed. The examiner also noted that the Veteran was obese and had hypertension. Post-service, in August 2015, a polysomnography report reflects that the Veteran was diagnosed with OSA. In his February 2016 NOD, the Veteran reported that his doctor sent him to get a sleep study six months after separation from service due to his unexplained weight gain and fatigue. The Veteran submitted numerous medical articles in support of his claim. One article explained that many people who suffer from sleep apnea do not know that they’re dealing with this condition since it occurs during sleep. It explained that risk factors included being overweight and hypertension. Another article addressed the link between sleep apnea and hypertension. Upon review of the evidence of record, the Board finds that service connection for OSA is warranted. Initially, the Board notes that the Veteran has a current diagnosis of OSA as indicated in the August 2015 sleep study. There is also evidence of in-service symptoms of a sleep disorder. Although there was no diagnosis of OSA in service, the Veteran complained of frequent trouble sleeping; and, at separation, the examiner noted his intermittent insomnia. Additionally, the Veteran was obese and suffered from hypertension during service. Thus, the dispositive issue in this case is whether the Veteran’s current diagnosis of OSA had its onset during service. There is lay evidence suggesting a nexus between the Veteran’s OSA and his in-service complaints; specifically, lay testimony that he began to experience OSA symptoms in service that continued to after service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence”). The Veteran has consistently, competently, and credibly made statements regarding his in-service complaints of a sleep disorder. These statements are supported by the August 2015 diagnosis of OSA. In other words, the Board can reasonably infer that the Veteran’s competent and credible statements regarding in-service fatigue and trouble sleeping are symptoms of his OSA. Although his OSA was not officially diagnosed until approximately one year after service discharge, the record suggests the disability had its onset during service based on the Veteran’s reported symptoms during service and at the time of discharge. Moreover, the Veteran submitted articles in support of his claim; noting that the Veteran was shown to have hypertension and obesity at separation from service. Similarly this evidence explains that OSA can be difficult to diagnose because the symptoms occur during sleep. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (medical article and treatise evidence “can provide important support when combined with an opinion of a medical professional”). (Continued on the next page)   Given the competent and credible statements from the Veteran as to the onset of symptoms, which are supported by the medical treatise evidence; as well as the diagnosis of OSA so close in time to the Veteran’s discharge, the Board finds that the Veteran’s OSA cannot be satisfactorily disassociated from his lengthy period of service. Accordingly, and with resolution of all doubt in favor of the Veteran, service connection for OSA is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laroche, N.