Citation Nr: 20021207 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-54 526 DATE: March 25, 2020 ORDER Entitlement to service connection for bilateral ankle disability is denied. Entitlement to service connection for a left foot disability (other than pes planus) is denied. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for flat feet (pes planus) is remanded. FINDINGS OF FACT 1. Three years after separating from service, the Veteran denied foot problems and indicated he was in excellent health; there were no complaints referable to his ankles and/or feet during the next several decades. 2. The preponderance of the evidence is against finding that the Veteran has a bilateral ankle and/or a left foot disability that began during his service or that is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for bilateral ankle disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria also are not met for entitlement to service connection for a left foot disability (other than pes planus). 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran’s claims for service connection for bilateral flat feet (pes planus) and a left foot disability were denied by a VA Regional Office (RO) in a December 2014 rating decision. That same month, the Veteran requested that the RO reconsider its decision or reopen his claims. As that was within one year of the denial of the claims, and since it was prior to March 25, 2015 (the effective date upon which VA would only accept issues listed on a timely VA Form 21-0958, i.e., on a standardized form as a Notice of Disagreement (NOD) – see 79 Fed. Reg. 57660), that decision on these claims did not become a final and binding determination. See 38 C.F.R. § 20.201 (2015) (a communication expressing dissatisfaction with a RO decision and a desire to contest the result constitutes a NOD; special wording not required); see also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (“VA has always been, and will continue to be, liberal in determining what constitutes a notice of disagreement.”). Thus, new and material evidence is not required to reopen these claims before readjudicating them on their underlying merits. 38 C.F.R. § 3.156. 1. Entitlement to service connection for bilateral ankle disability The Veteran contends that he had ankle injuries in service for which his ankle had to be taped; he has also asserted that he may have broken an ankle in service. He testified that it is difficult to keep his left foot from rolling over and that his left ankle is bigger than his right ankle. His service treatment records (STRs) are unremarkable for indication of a traumatic injury involving either ankle. The Veteran had service from November 1963 to March 1966 with no foreign service and had subsequent service from March 1966 to March 1969. His DD Form 214 for his second period of service indicates he was a pilot. His military personnel records show he participated in several operations against the enemy in Vietnam. When a Veteran has engaged in combat with the enemy, satisfactory lay or other evidence “shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.” 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). This combat presumption may be rebutted only by clear and convincing evidence to the contrary. However, this presumption only relieves the Veteran of the evidentiary burden of showing relevant injury or disease in service; he still must show there is a correlation (“nexus”) between his disabilities now being claimed and the injury or disease he presumably incurred in combat during his service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Here, even assuming the Veteran had ankle injuries in combat and, therefore, is afforded the “combat presumption”, there still is no clinical opinion relating any injury to his ankles during his combat service to any current symptoms or disability referable to his ankles. Moreover, the Board finds that any contention as to continuity of symptoms since his service is not credible. Additionally, VA does not have a duty to obtain an opinion because there is no clinical indication that a current ankle disability may be due to his service and no credible evidence of continuity of symptoms since his service. The Veteran’s STRs are unremarkable for taping, a possible fracture, or sprains. A June 28, 1968 STR reflects that he had developed malaise, fever, soreness of joints, and redness of the ankles with mild edema of them. There was a questionable rash in certain areas of his body. A 1968 STR notes possible acute arthritis, rule/out rheumatic fever; he was to be seen again in four to five days. A subsequent July 1, 1968 STR notes that he was asymptomatic on that date with no swelling and there was no limited range of motion of the ankle. It was noted he had possible rheumatic arthritis. He returned from Vietnam in 1967. Thus, if he had chronic complaints referable to his ankles due to an incident in Vietnam, it seems reasonable that he would have reported such, and that it would have been noted in his STRs when his ankle was examined in 1968; instead, his complaints were noted to be acute without indication that they were due to physical trauma. Thus, there is no clinical evidence of chronicity of symptoms, including in the way of complaints, after his return from Vietnam. He separated from service in March 1969. Some three years later, a June 1972 Report of Medical Examination reflects that the Veteran’s feet and lower extremities were normal upon examination. In addition, his Report of Medical History reflects that he reported never having had foot trouble, lameness, or broken bones, and that he was in “excellent health” and on “no medication”. If he suspected that he had broken his ankle in service or if he had chronic sprains or complaints of his ankle, it stands to reason that he would have reported this, rather than conversely specifically denying any lameness and fractures and stating that he was in excellent health. A November 1977 record (approximately eight years after separation from service) notes that the Veteran had chronic prostatitis, an occasional backache, that he was attempting to stop smoking, that he denied all other symptoms, and that he had an otherwise unremarkable history. The Board finds that if the Veteran had chronic ankle complaints, it would have been reasonable for him to have reported it, and for it to have been noted in the record, rather than deny symptoms.   Post-service records also reflect that the Veteran was a jogger (e.g., June 1989, July 1989, March 1992); the Board find that if he had chronic ankle complaints since service, it would have been reasonable for him to have sought treatment considering that he jogged. The earliest clinical evidence of ankle complaints is not for several decades after separation from service. The evidence also reflects that the ankle injury was to the right ankle and occurred in approximately 1998. A December 1997 Northwest Asthma and Allergy Center record does not reflect that the Veteran had any ankle complaints. However, a March 1999 record by the same facility reflects an “interim history” of a “ruptured Achilles twice (same ankle) – possible secondary to oral steroids.” Thus, the Board can reasonably assume that the Veteran’s achilles injuries occurred between December 1997 and March 1999. (1995 records note that the Veteran had “steroid-dependent asthma”.) (An April 2010 contract examination report for PTSD reflects that the Veteran reported having had an Achilles tendon injury in the 1990’s and having been treated with surgeries.). That would have been approximately three decades after his separation from service. That long a lapse of time between his separation from service and the earliest documentation of the now claimed disability is a factor for consideration in deciding this service-connection claim and tends to refute the notion that his ankle disability dates back to his service or is the result of his service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A July 2005 VA record notes that the Veteran had a history of a “right achilles tendon repair x 2 (chronic steroids).” A December 2009 record notes chronic arthralgia and requested a consultation with podiatry. A January 2010 record notes ankle and hip symptoms. Upon examination, he had slight tibial varum with rearfoot varus and bunion. It was noted that he had feet flattened in weight bearing due to rear foot (“RF”) varus.   A January 2010 private consultation by Dr. J. Burns reflects that the Veteran, who was seen for a back complaint, “maintains a pretty active lifestyle, swims every week, plays tennis 2 or 3 times a week, does regular exercise.” It was noted that his “only previous orthopedic injuries have been an Achilles tendon repair by Mankey; he also has had a shoulder problem.” A March 2010 statement by the Veteran’s spouse (C.M.) reflects her statement that the Veteran’s nonservice-connected has gotten worse and his use of steroids to control it has caused him to rupture his tendon on more than one occasion. There is no competent and credible evidence of record that the Veteran has an ankle disability causally related to service, to include any injuries in Vietnam, and/or his complaint in June and July 1968. The Board finds it notable that three years after separation from service, he reported being in excellent health, that he maintained an active lifestyle to include jogging for several years, and that the earliest post-service complaint was not until approximately 1998 (and that it was indicative of possibly due to steroid treatment for his nonservice-connected asthma). The Board finds that any contention as to continuity of symptoms since service is less than credible given the record as a whole. Moreover, any clinical opinion based on a less than credible history and without review of pertinent clinical records noted above, lacks probative value. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his claimed disability – so including in terms of its posited relationship with his military service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the most probative evidence is against finding that the Veteran has a current ankle disability causally related to, or that was aggravated by, his service. Thus, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for a left foot disability (other than pes planus) During the pendency of this claim, the Veteran has stated that his left foot “pretty much aches all the time.” An October 2009 VA clinical record notes slight tibial varum with rearfoot varus, no skin lesions, mild asymptomatic bunion, and flat feet due to RF varus. VA clinical record notes that the varus deformities are congenital. Congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (though not also defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303 (c), 3.306. The Court indicated that support for this position could be found in VA's regulations, themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities (Rating Schedule). Also, according to the VA General Counsel's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Thus, to allow for proper legal analysis of an Appellant's claim in this circumstance, medical clarification is sometimes necessary to determine whether this condition is a congenital or developmental "disease" or "defect." See id; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). If a "disease", an opinion is required as to whether it was as likely as not aggravated by active military service beyond its natural progression. If instead a "defect", an opinion is required as to whether it was as likely as not subject to a superimposed disease or injury during active military service that resulted in disability apart from the congenital or developmental defect. For reference, a "disease" is subject to periodic or intermittent improvement or worsening, whereas a "defect" is generally more static in nature. See also O'Bryan v. McDonald, 771 F.3d 1376 (Fed. Cir. 2014) (holding that hereditary conditions capable of change are not "defects."). An October 1965 Report of Medical Examination for pre-commission purposes (during the Veteran’s first period of active service) reflects that his feet and skin were normal upon examination. A June 1972 Report of Medical Examination (Reserves) reflects that his feet and skin were normal upon examination. In addition, his Report of Medical History reflects that he reported that he had never had foot trouble, never had skin disease, and that he was in “excellent health” and on “no medication”. It seems entirely reasonable that if he had been experiencing problems with his feet, certainly if chronic or continuous, that would have been reported and/or noted in some way at that time, rather than specifically denied. In addition, while a January 1996 private record notes athlete’s feet (tinea pedis), that was more than a decade prior to the current claim and the evidence does not support any notion of this condition being causally related to the Veteran’s service. A January 2010 VA podiatry record notes that, upon examination of his feet, his neuro-vascular system was intact, there were no skin lesions, and he had only a mild asymptomatic bunion. There is no competent and credible evidence indicating the bunion was due to his service. Records note a prescription for clotrimazole (an anti-fungal cream) but this was to treat cracks in his nose, not his feet (see March 2012 clinical record). A December 2013 VA podiatry record reflects that the Veteran complained of a painful flat foot with increased pain along the arch and calf areas, but that there were no other complaints. A June 2015 VA clinical record notes a toenail fungus but there is no competent and credible evidence that this was due to service. The Veteran is competent to report symptoms such as pain, hardened skin, and peeling skin; however, he is not competent to opine that any such symptom is due to service in the absence of continuity of symptoms; any contention as to chronic symptoms since service is less than credible given the record as a whole. Any opinion based on a less than credible history lacks probative value. Importantly, the Veteran’s feet were normal in 1972 (three years after separation from service), he denied problems in 1972, there are no clinical records supporting continuity of symptoms, and there is no probative opinion that it is as likely as not that he has a current disability causally related to his service. For these reasons, service connection is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for sinusitis is remanded The Veteran’s STRs show he was seen in November 1964 for a cold, malaise, and nasal congestion. An October 1965 Report of Medical Examination for pre-commission purposes (during hs first period of service) reflects normal sinuses upon examination. A November 25, 1968 STR reflects that he reported two episodes per week of retroorbital pain/frontal sinus pain on ascending to 8000 feet with relief on descent. It was noted that he had no then recent upper respiratory infection (URI). It was also noted that his symptoms were “exactly the opposite to sinus block”. The impression was suspect/rule-out frontal sinus polyp. Another November 25, 1968 STR indicates that X-rays of his sinus were clear. The Veteran separated from active service in March 1969. Although a separation examination and history report are not associated with the claims file for that time, reports from three years later (for Reserve purposes) are in the claims file. A June 1972 Report of Medical Examination shows his sinuses were normal upon examination. In addition, his Report of Medical History reflects that he reported that he had never had sinusitis, and that he was in “excellent health” and on “no medication”. Thus, there is no clinical evidence of sinusitis in service. A November 1977 record notes that the Veteran had chronic prostatitis, an occasional backache, that the Veteran was attempting to stop smoking, and that the Veteran denied all other symptoms, and had an otherwise unremarkable history. The earliest clinical evidence of sinusitis is in 1989, twenty years after separation from service. A June 1989 Virginia Mason Clinic reflects that the Veteran has a history of nasal polyps removed in approximately 1987 (at which time asthma was recognized). It was noted that there was no history of sinusitis. He was diagnosed with exacerbation of bronchial asthma precipitated by respiratory infection. An addendum reflects that sinus x-rays show “striking bilateral maxillary sinusitis with air-fluid levels”. Thereafter, he was diagnosed with sinusitis on more than one occasions (e.g. November 1990, February 1992, July 1993, October 2004). A November 1993 letter from Northwest Asthma and Allergy Center reflects that the Veteran presented to its clinical in January 1993 with diagnosis of rhinitis, asthma, and chronic sinusitis; his treatment provider opined that he was unable to continue his job as a pilot. The claims file includes a September 2015 VA Disability Benefits Questionnaire (DBQ) which reflects the opinion of the examiner that it is less likely as not that the Veteran has a sinus disability causally related to service. The examiner’s rationale was that there are no sinus complaints during service. It does not appear that the VA examiner had reviewed the 1964 and 1968 STRs. When VA procures an opinion, it must ensure that the opinion is adequate. Thus, a supplemental clinical opinion is warranted. 2. Entitlement to service connection for flat feet (pes planus) is remanded The Veteran has been diagnosed with flat feet (see December 2013 VA clinical record). He contends it is due to carrying heavy loads in service and the stresses of service. An October 1965 Report of Medical Examination for pre-commission purposes (during his first period of active service) reflects that his feet were normal upon examination. A June 1972 Report of Medical Examination (three years after separation from service) reflects that his feet were normal upon examination. In addition, his Report of Medical History reflects that he reported that he had never had foot trouble, and that he was in “excellent health” and on “no medication”. A November 1977 record notes that the Veteran had chronic prostatitis, an occasional backache, that the Veteran was attempting to stop smoking, and that the Veteran denied all other symptoms, and had an otherwise unremarkable history. Post service records also reflect that the Veteran was a jogger (e.g. June 1989, July 1989, March 1992), and played tennis two to three times a week (January 2010, May 2012); both of which can reasonably be assumed to require extensive use of the feet. There are no complaints of the feet for several decades after separation from service. A December 2009 notes chronic arthralgia and requested a consult for podiatry; a January 2010 record notes the complaints were to the ankle and hip. Upon examination, he had slight tibial varum with rearfoot varus and bunion. It was noted that he had feet flattened in weight bearing due to RF varus. VA record notes that he “congenital” varus deformities of the feet. A November 2013 X-ray notes normal feet. The claims file includes a 2015 DBQ containing the opinion of the examiner that it is less likely than not that the Veteran has pes planus as related to his service. The rationale was that the Veteran “likely entered service with pes planus”, there are not records of complaints while in service, and “he may have pains while in service, but I suspect that this improved 40 years later with no residuals”. The Board finds that the opinion lacks some probative value because the Veteran had normal feet during service in October 1965 and normal feet three years after separation in 1972, with no evidence in service of pes planus. Moreover, the examiner stated that any complaints in service improved and the Veteran had no residuals, whereas the evidence reflects no complaints in the years after service, with clinical records of complaints many decades after service. Thus, a supplemental opinion is needed. Again, when VA procures an opinion, it must ensure that it is adequate. The commenting clinician should provide an opinion on whether it is as likely as not that the Veteran has pes planus due to his service and, in making this important determination, should consider the evidence noted above. These matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sinusitis is at least as likely as not related to his service. The clinician should consider the pertinent evidence of record to include: a) November 1964 STR which notes complaints of a cold, malaise, and nasal congestion; b) an October 1965 Report of Medical Examination which notes normal sinuses upon examination; c) November 25, 1968 STRs which reflect the Veteran’s symptoms of retroorbital pain/frontal sinus pain on ascending to 8000 feet with relief on descent was the exact opposite of a sinus block, and an x-ray revealed clear sinus; d) a post service 1972 Report of Medical History and a Report of Medical Examination which reflect that the Veteran denied sinusitis and had normal sinuses upon examination; e) a June 1989 Virginia Mason Clinic record which reflects that the Veteran has a history of nasal polyps removed in approximately 1987 (at which time asthma was recognized). It was noted that there was no history of sinusitis; f) the Veteran’s ability to be a pilot for two decades after separation from service; and g) the Veteran’s history of smoking. Any contention as to continuity of symptoms since service need not be considered by the examiner as the Board finds it less than credible. A complete rationale should be provided for any opinion offered. 2. Also obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s pes planus is at least as likely as not related to his service. The commenting clinician should consider the pertinent evidence of record to include: a) the Veteran’s contention that carrying heavy weight in service and jumping, walking, marching, etc., caused his current condition; b) the Veteran’s 1965 Report of Medical Examination for pre-commission purposes, and his 1972 Report of Medical Examination for Reserve purposes, which both note normal feet; c) the Veteran’s 1972 Report of Medical History in which he denied feet trouble and reported being in excellent health; d) that post-service the Veteran jogged and played tennis frequently (e.g., June 1989, July 1989, March 1992, January 2010, and May 2012); e) the earliest clinical evidence of foot pain was in approximately 2009; f) the clinical evidence of a congenital RF varus; and g) a November 2013 X-ray noting normal feet. Any contention as to continuity of symptoms since service need not be considered by the examiner as the Board finds it less than credible.   It is essential the examiner provide rationale for the opinion, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. Also, in responding, to the extent possible, the examiner shoulder clarify whether the Veteran’s pes planus is a congenital “defect” or “disease”. If a "disease", an opinion is required as to whether it was as likely as not aggravated by his active military service beyond its natural progression. If instead a "defect", an opinion is required as to whether it was as likely as not subject to a superimposed disease or injury during his service that resulted in disability apart from the congenital or developmental defect. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.