Citation Nr: 20021583 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-19 333A DATE: March 26, 2020 ORDER Entitlement to service connection for carpal tunnel syndrome, right wrist, is denied. Entitlement to service connection for upper back/bilateral shoulder pain is denied. Entitlement to service connection for poor circulation of bilateral lower extremities is denied. Entitlement to service connection for bilateral foot pain is denied. FINDINGS OF FACT 1. Carpal tunnel syndrome, right wrist, was not manifested in service, and is not otherwise attributable to service. 2. Arthritis of the cervical spine was not manifested to a compensable degree within one year of separation from service; an upper back/bilateral shoulder disability was not manifested in service, and is not otherwise attributable to service. 3. A disability manifested by poor circulation of bilateral lower extremities was not manifested in service, and is not otherwise attributable to service. 4. The Veteran’s bilateral pes planus condition preexisted service and was not aggravated therein; arthritis of the feet was not manifested to a compensable degree within one year of separation from service; a foot disability other than pes planus was not manifested in service, and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for carpal tunnel syndrome, right wrist, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for upper back/bilateral shoulder pain have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for poor circulation of bilateral lower extremities have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for bilateral foot pain have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1153, 5103; 38 C.F.R. §§ 3.102, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1975 to February 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018 the Veteran provided testimony before the undersigned Veterans Law Judge by videoconference hearing. A transcript of the hearing is of record. In September 2018, the Board remanded the case for further development. In a January 24, 2020 written statement, the Veteran requested additional time to respond to VA examinations conducted in October 2019. The Board notes that 60 days have passed since the Veteran’s request and he has not submitted additional evidence or argument. In a March 11, 2020 Informal Hearing Presentation, his representative stated that “the evidence for the Veteran appeal has all been submitted. There is no other evidence that need to be submitted at this time.” Thus, the Board will proceed with adjudication of the Veteran’s appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). 1. Entitlement to service connection for carpal tunnel syndrome, right wrist, The Veteran testified that he believes his right wrist carpal tunnel syndrome is related to his use of wrenches and other tools in his work in the motor pool in service, as well as extensive writing required by his in-service duties. The service treatment records do not note any complaints related to carpal tunnel syndrome or the right wrist. The service separation examination in November 1977 noted normal upper extremities examination. An August 2009 VA treatment record noted possible mild carpal tunnel syndrome, right worse than left. A VA examination in October 2019 noted diagnoses of carpal tunnel syndrome, status post release, and status post cubital tunnel surgery. The examiner noted that the Veteran reported a history of working “in repair parts for aircraft/tanks/trucks while in military service. Reports noticing intermittent [right] hand numbness, but doesn’t recall seeking medical care. VA diagnosed with [right] carpal tunnel and cubital tunnel syndrome about 10 years ago after NCS/EMG testing. [Right carpal tunnel syndrome] and cubital tunnel surgery (2017), good results but still with some pain/numbness/cramping, intermittent Current Treatment/Frequency: shooting pain in [right] wrist, stiff wrist, feels numb base of palm, intermittent cramps in fingers/base of thumb and medial side of hand.” The examiner stated that Veteran has “carpal tunnel syndrome of right wrist and residuals from s/p carpal tunnel release right wrist and s/p cubital tunnel release, residual pain/parasthesia….It’s possible that working with vibrating tools or on an assembly line that requires prolonged or repetitive flexing of the wrist may create harmful pressure on the median nerve or worsen existing nerve damage, resulting in carpal tunnel syndrome. However, the scientific evidence is conflicting, and these factors haven’t been established as direct causes of carpal tunnel syndrome. Additionally, the amount of time spent in military service (less than 2 years) as well as the span of time between military service and subsequent diagnosis and treatment of his right carpal tunnel syndrome spans several decades. It is less likely than not that Veteran’s right carpal tunnel syndrome was proximately due to or caused by military service.” The Board finds this opinion highly probative in determining whether the Veteran’s right wrist carpal tunnel syndrome is related to his period of service as it is shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner explained that there was no established scientific link between the type of work the Veteran did in service and carpal tunnel syndrome. The examiner further noted that the Veteran’s relatively brief period of service and the length of time between separation from service and his development of carpal tunnel syndrome made it less likely than not his carpal tunnel syndrome was related to service. There are no medical opinions of record contradicting the VA examiner’s opinion. The Board acknowledges the Veteran’s assertions that his right wrist carpal tunnel syndrome is related to his military service, including his use of wrenches and other tools in his work in the motor pool in service, as well as extensive writing required by his in-service duties. However, as this issue is medically complex, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Since the competent and probative evidence of record fails to indicate that the Veteran’s right wrist carpal tunnel syndrome had onset in, or is otherwise related to service, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b). 2. Entitlement to service connection for upper back/bilateral shoulder pain The Veteran testified that he believes his upper back/shoulder complaints are related to heavy lifting, particularly overhead lifting, of artillery parts for tanks and aircraft. He testified that he began experiencing back and shoulder complaints in service. The service treatment records do not note any complaints related to the upper back or shoulders. The service separation examination in November 1977 noted normal spine and other musculoskeletal examination. A September 2014 private chiropractor record noted the Veteran complained of upper back pain when standing for a long time. A diagnosis of thoracic spondylosis was noted. A VA examination in October 2019 noted diagnoses of cervical spine degenerative joint disease, and bilateral shoulder impingement. The examiner noted that: Veteran reports pain to upper back/bilateral shoulders began “years” ago but unable to recall exactly when since it was gradual onset. Medical records include encounter with chiropractor (9/26/2014 Mantonya Chiro Center: Cspine xray – mod cervical lordosis, DJD C5-6, anterior/posterior/lateral osteophytes moderate C3-7), which is more likely than not the primary cause of his complaint of upper back/bilateral shoulder pain versus shoulder pathology. However, based on records review and exam conducted today, diagnosing Veteran with bilateral shoulder impingement given his restricted [range of motion] with flexion/abduction and associated pain pattern. Medical records during military service and post-discharge are silent for any diagnosed bilateral shoulder condition. Cervical degenerative joint disease diagnosed almost 40 years following discharge from service, with no objective evidence of chronicity of care. Veteran’s claimed condition of upper back/bilateral shoulder pain (bilateral shoulder impingement, cervical degenerative joint disease) is not at least as likely incurred in or caused by upper back/bilateral shoulder pain during service. The Board finds this opinion highly probative in determining whether the Veteran’s upper back/shoulder disabilities are related to his period of service, as it is shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner explained that the Veteran’s arthritis of the cervical spine, and his bilateral shoulder impingement, were diagnosed decades after service, and that there was no objective evidence of relevant complaints in service or of chronicity of care after service. There are no medical opinions of record contradicting the VA examiner’s opinion. The Board acknowledges the Veteran’s assertions that his upper back/shoulder conditions are related to his military service, including heavy lifting. However, as this issue is medically complex, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran reports that he had upper back and shoulder pain in service, as the VA examiner has attributed his current complaints to the diagnoses of cervical spine degenerative joint disease and shoulder impingement made decades after service, there is no basis for attributing the current disabilities to the Veteran’s current report of inservice pain. As there is no evidence showing initial manifestations of arthritis in service, or to any degree within one year of separation from service, the one-year presumption for arthritis under 38 C.F.R. §§ 3.307 and 3.309 is not an avenue for service connection, nor are the provisions of 38 C.F.R. § 3.303 (b) pertaining to chronicity or continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. Since the competent and probative evidence of record fails to indicate that the Veteran’s upper back/cervical spine/bilateral shoulder disabilities had onset in, or are otherwise related to service, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b). 3. Entitlement to service connection for poor circulation of bilateral lower extremities The Veteran testified that he believes his poor circulation of the lower extremities is also related to the use of blousing rubbers during service, which he noted caused restriction of blood flow, as well as injuries to his lower legs from banging them on tanks and artillery in the course of his duties. The service treatment records do not note any complaints related to poor circulation of the lower extremities. The service separation examination in November 1977 noted normal vascular system and lower extremities examination. A February 2018 vascular study found “no evidence of deep vein thrombosis in the visualized veins of the lower extremities bilaterally. No evidence of valvular insufficiency noted above or below the knee of the deep venous system of the lower extremities bilaterally.” A VA examination in October 2019 noted a diagnosis of parasthesia of skin secondary to bilateral venous insufficency lower extremities status-post vein stripping. The examiner noted that: It is not at least as likely as not that bilateral lower extremity venous insufficiency/venous stasis (poor circulation of the lower extremities) had onset during military service or is otherwise related to service, to include the Veteran’s reported use of blousing rubbers during service, which he noted caused restriction of blood flow, as well as injuries to his lower legs from banging them on tanks and artillery in the course of his duties. Veteran has contributory comorbid conditions - hypertension and being overweight - that are more likely to have caused development of venous insufficiency/venous stasis over time. Other contributors to poor circulation in his legs include lack of exercise, prolonged sitting. The Veteran is also 6’3”; being tall also increases risk for development of venous insufficiency/venous stasis. During service, wearing blousing rubbers around lower legs may have caused temporary lower extremity dependent edema with no marked restriction of blood flow to the lower extremities, and was acute only when blousing rubbers were in place. There is no evidence of chronicity of care in medical records spanning military service over past several decades (until within last 5-10 years) with regards to either poor circulation. A nexus has not been established. She further stated: Veteran contends that his diagnosis of bilateral lower extremity peripheral venous insufficiency is due to wearing boot blousers for extended periods of time during his military service. Venous insufficiency (claimed as bilateral lower circulation condition) can be caused by: overweight, family history, damage due to leg injury or prior blood clots in the legs, elevated blood pressure, lack of exercise, smoking. Boot blousers worn with the military uniform typically do not exert sufficient enough pressure to cut off circulation to the lower extremities. While they may cause some mild swelling distal to placement of the boot blouser, this is only temporary and resolves after removal. Veteran’s medical records are silent for any complaints of lower extremity circulation problems during time in service. Veteran’s diagnosis of venous insufficiency (poor circulation of bilateral lower extremities) is less than likely to have been incurred in or caused by poor circulation of bilateral lower extremities during service. The Board finds this opinion highly probative in determining whether the Veteran’s bilateral lower extremities circulation disability is related to his period of service, as it is shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner explained that the Veteran’s report of in-service use of blousers would not have resulted in a chronic disability of the lower extremities, and noted other significant likely causes of the venous insufficiency noted many years after service. There are no medical opinions of record contradicting the VA examiner’s opinion. The Board acknowledges the Veteran’s assertions that his use of blousers in service, and injuries to his lower legs caused his current venous insufficiency. However, as this issue is medically complex, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Since the competent and probative evidence of record fails to indicate that the Veteran’s bilateral lower extremities circulatory disability had onset in, or is otherwise related to service, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b). 4. Entitlement to service connection for bilateral foot pain The Veteran testified that he believes his bilateral foot complaints are related to the use of blousing rubbers [elastic bands worn around the legs to hold fatigues above boots] during service. He reports that he experiences pain in both feet. At the outset, the Board notes that the Veteran’s January 1975 service entrance examination noted “mild pes planus, no [symptoms].” 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 by such service. See 38 U.S.C. § 1132; 38 C.F.R. § 3.304 (b). Cases in which the condition is noted on entrance, as here, are however, governed by the presumption of aggravation of a preexisting disability contained in 38 U.S.C. § 1153. This statute provides that 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 clear and unmistakable evidence shows 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. In such cases, the record must simply show by a preponderance of the evidence that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no 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 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). As noted, the Veteran’s January 1975 entrance examination report shows that mild pes planus, no symptoms was noted upon entrance to his period of active service. Therefore, he is not presumed sound upon entrance as it relates to his feet. 38 C.F.R. § 3.304. As noted above, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. However, the evidence shows there was no increase in the severity of the preexisting pes planus disability during service. The service treatment records do not include any complaints or findings related to feet or pes planus. The separation examination report in November 1977 shows his feet were normal at discharge. Thus, the competent and contemporaneous evidence does not demonstrate an increase in the Veteran’s preexisting pes planus disability in service. A VA examination in October 2019 noted diagnoses of bilateral flat feet, metatarsalgia, and degenerative joint disease. The examiner noted that the Veteran reported: Foot pain started bothering him in bootcamp. Reports very unreliable footwear. Routinely wore wet boots continuously. Pain to balls and heels of feet with weight bearing. Denies any trauma or prior surgeries to feet. Course since Onset: Veteran does not remember seeking medical care during service for bilateral foot pain. Over past 5-10 years has tried shoe inserts, and more recently fitted for insoles (no help); Cortisone shots in heels bilateral (July 2019) which relieved some pain on heels but pain returning now, also recently prescribed heel braces (referred to Podiatry outside) but has not yet been fitted for these. Current Symptoms: Burning/pain sensation to ball and heel of both feet, continuous. Pain worsens with pressure (standing); improves with non-weight bearing activities. Current Treatment and Frequency: Bilateral insoles, waiting on heel braces. The examiner opined that: [Service treatment records] are silent for complaint of bilateral foot pain; mild pes planus bilateral was annotated on entrance exam. Post discharge medical records (several decades following discharge) indicate diagnosis of metatarsalgia and bilateral pes planus with ensuing treatment (injection therapy bilateral feet x 1, orthotic inserts). Veteran’s a diagnosis of bilateral foot pain (due to bilateral metatarsalgia and bilateral pes planus) is not at least as likely as not (50 percent or greater probability) incurred in or caused by the bilateral foot pain during service. The examiner also stated that it is not at least as likely as not that bilateral metatarsalgia (bilateral foot pain) had onset during military service or is otherwise related to service, to include the Veteran’s reported use of blousing rubbers during service, which he noted caused restriction of blood flow, as well as injuries to his lower legs from banging them on tanks and artillery in the course of his duties. “There is no evidence of chronicity of care in medical records spanning military service over past several decades (until within last 5-10 years) with regards to bilateral foot pain. A nexus has not been established.” A December 2019 treatment record noted degenerative joint disease of the feet as well as plantar fasciitis. Although the Veteran can report what he saw or experienced firsthand, he has not been shown to possess the education, training, and experience to offer medical opinions on complex matters such as the ability determining the severity of pes planus, or to attest to the natural progression of it. Further, the clinical finding of pes planus at entrance (but not at discharge) weighs against any lay assertion that his condition worsened during service. Accordingly, any contention by the Veteran would not be competent or probative evidence that his pes planus was permanently aggravated in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As a whole, the Board finds that the medical evidence is more probative than the Veteran’s lay statement. In short, the competent and credible evidence of record does not reflect a permanent aggravation of the preexisting pes planus during service. The Board finds the VA examiner’s opinion highly probative in determining whether the Veteran’s degenerative joint disease of the bilateral feet is related to his period of service, as it is shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner explained that the Veteran’s arthritis of the feet was diagnosed decades after service, and that there was no objective evidence of relevant complaints in service or of chronicity of care after service. There are no medical opinions of record contradicting the VA examiner’s opinion. The Board acknowledges the Veteran’s assertions that his bilateral foot conditions (other than pes planus) are related to his military service, including use of blousers. However, as this issue is medically complex, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As there is no evidence showing initial manifestations of degenerative joint disease (arthritis) of the feet in service, or to any degree within one year of separation from service, the one-year presumption for arthritis under 38 C.F.R. §§ 3.307 and 3.309 is not an avenue for service connection, nor are the provisions of 38 C.F.R. § 3.303 (b) pertaining to chronicity or continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. (Continued on the next page)   Since the competent and probative evidence of record fails to indicate that the Veteran’s bilateral foot disabilities (other than pes planus) had onset in, or are otherwise related to service, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, Counsel 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.