Citation Nr: 1806612 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 10-16 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a bilateral foot disability. 2. Entitlement to service connection for a bilateral ankle disability. 3. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1987 to November 1991 and from February 1993 to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. Jurisdiction has been transferred to the RO in Muskogee, Oklahoma. In his June 2010 substantive appeal (via a VA Form 9), the Veteran requested a Board video-conference hearing. However, an August 2014 correspondence reflects his desire to withdraw such hearing request. 38 C.F.R. § 20.704(e) (2017). Therefore, there is no outstanding hearing request. In August 2015 and July 2016, the Board remanded the claims for additional development. In November 2017, the Board requested an expert medical opinion from the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901 (2017). A response was provided in January 2018. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's currently diagnosed bilateral foot disability (pes planus & hallux valgus) had its onset during active service. 2. The evidence is in relative equipoise as to whether the Veteran's currently diagnosed bilateral ankle disability (bilateral ankle strain) had its onset during active service. 3. The evidence is in relative equipoise as to whether the Veteran's currently diagnosed bilateral knee disability (bilateral knee strain) had its onset during active service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for pes planus & hallux valgus are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a bilateral ankle strain are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a bilateral knee strain are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Pertinent Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without competent and credible evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. The Board must consider that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Analysis The Veteran maintains that he has bilateral foot, bilateral ankle, and bilateral knee disabilities as result of his service, to specifically include participating in basic training that caused "pain in his ankles and knees every time he would run." See December 2009 VA examination report. The Veteran has also reported that during his service, given his orthopedic conditions, he was "placed in special [wooden] shoes . . . ." and had "molded shoe inserts to be placed in his military boots." See id. At the outset, the Board notes that the Veteran's service treatment records for his first period of active service were found to be unavailable. When, as here, the service records are lost or missing, through no fault of the Veteran, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist him in developing his or her claim. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The available personnel records list the Veteran's military occupational specialty (MOS) as infantry, which required him to "road march at a brisk pace for a[t] least five miles with 30 pounds on his pack." See March 1995 Personnel Record. The available service treatment records indicate that the Veteran's lower extremities were found to be normal in an October 1992 enlistment examination report. November 1995 and January 1996 Medical Board Proceedings records document diagnoses of "knee and ankle pain." The January 1996 Medical Board Proceedings record notes that the "approximate date of origin" for the knee and ankle pain was "1988/89." A May 1995 service examination reflects a normal finding as to the lower extremities. A May 1996 Record of Inpatient Treatment identifies a diagnosis of "knee and ankle pain." Post-service medical records demonstrate that the Veteran has chronic strains of the bilateral knees and ankles, as well as bilateral pes planus and hallux valgus. In a December 2009 VA examination report, a VA examiner provided impressions of chronic bilateral knee strain and chronic bilateral ankle strain with complaints of arthralgia with weight bearing. The examiner then gave a negative nexus opinion for the bilateral knee and ankle disabilities given that "there was no further subjective information about this," and it was not until "approximately 9 years following discharge from the military" when the Veteran complained of ankle and knee pain. This opinion is assigned limited probative value as the examiner relied on the absence of documented treatment records without due consideration of the referenced service treatment records in light of the Veteran's competent reports as to the onset and continuity of symptoms for the claimed conditions since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In an April 2010 statement, a private physician, Dr. M.C., provided a diagnosis of bilateral ankle strain and indicated "yes" as to whether it was "more likely than not [the Veteran's] ankle problems started on active duty and continue today." Dr. M.C. wrote "[l]ong standing time during work time" as a rationale. Dr. M.C. also provided diagnoses of bilateral knee strain and bilateral flat feet, and attributed these conditions to active duty, namely from being "in [a] standing position for long hours" and "stiff shoe wears," respectively. A September 2015 Disability Benefits Questionnaire (DBQ) examiner opined that the claimed bilateral ankle, knee, and foot disabilities were less likely than not due to service. The examiner again relied on a lack of documented treatments for the claimed conditions on the basis that "there is lack of evidence to indicate chronicity or continuity of the claimed condition[s]." Therefore, this opinion has limited probative value. See Dalton, 21 Vet. App. at 23. January 2016 DBQ examination reports contain diagnoses of bilateral pes planus, bilateral lateral collateral ligament sprain, chronic/recurrent, and bilateral knee strain. In an October 2016 DBQ opinion, the examiner again opined that the claimed disabilities were less likely than not incurred or caused by service. As rationale, the examiner attributed the claimed disabilities to "various physically demanding" post-service employment as a "maintenance worker, harvest helper, tool sales [sic], and burial tech" given that the "medical records remain silent till 7/2009 when a diagnosis of knee and ankle disorder is noted." However, the examiner failed to comment on the April 2010 statement from Dr. M.C., who provided potentially favorable medical evidence to the Veterans claims. Therefore, this opinion also has limited probative value. In the January 2018 VHA opinion, the specialist, a Board-Certified orthopedic surgeon, essentially agreed with the April 2010 statement from Dr. M.C. and opined that "[i]t is at least likely as not . . . that the Veteran's bilateral ankle, knee, and foot disabilities had their onset in or [are] otherwise related to his period of service." As rationale, the VHA specialist determined that based on his review of the medical records and the documented evidence that the Veteran had "long marches and 30 pound back packs . . ." during service for which he was given "molded shoe inserts and wooden shoes" during service, such in-service activities could aggravate his feet, knees, and ankles. The specialist noted that the Veteran's described symptoms are related to basic training activities and increase and/or decrease accordingly. Given the evidence and the medical opinions already of record, the Board concludes that the evidence is at the very least in relative equipoise as to whether the Veteran's current bilateral foot, bilateral knee, and bilateral ankle disabilities had their onsets during his active service. The January 2018 VHA opinion serves to link the Veteran's current bilateral foot, bilateral ankle, and bilateral knee disabilities to his service. In this regard, the January 2018 specialist concluded that the reported in-service physical activities, corroborated by the available personnel records, were related to the current disabilities affecting the feet, ankles, and knees in light of the nature of the reported physical activities and the clinical evidence of record. Given that the January 2018 VHA opinion was clearly based on full consideration of the record and the VHA examiner's significant expertise in clinical orthopedic surgery, the Board places great probative weight to the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, as the January 2018 VHA opinion is the most probative medical evidence of record, and the Veteran has provided competent and credible reports of ongoing bilateral foot, bilateral ankle, and bilateral knee symptomatology since service, the Board resolves all reasonable doubt in his favor and finds that his current bilateral foot, bilateral ankle, and bilateral knee disabilities had their onsets during service. Service connection for pes planus and hallux valgus, bilateral ankle strains, and bilateral knee strains are warranted. In reaching this conclusion, the benefit of doubt doctrine has been applied where appropriate. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for a bilateral pes planus and hallux valgus, is granted. Service connection for a bilateral ankle strain, is granted. Service connection for a bilateral knee strain, is granted. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs