Citation Nr: 20021589 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-06 254 DATE: March 26, 2020 ORDER Entitlement to service connection for a bilateral foot condition is denied. Entitlement to service connection for right hand carpal tunnel syndrome is denied. Entitlement to service connection for left hand carpal tunnel syndrome is denied. FINDINGS OF FACT 1. The Veteran’s bilateral foot condition pre-existed military service and did not chronically worsen therein. 2. The competent and probative evidence of record does not show that the Veteran’s right hand carpal tunnel syndrome is etiologically related to service. 3. The competent and probative evidence of record does not show that the Veteran’s left hand carpal tunnel syndrome is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot condition have not been met. 38 C.F.R. § 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2018). 2. The criteria for service connection for right hand carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for service connection for left hand carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1950 to February 1951, from March 1951 to March 1954, and from May 1954 to May 1957. There are additional periods of National Guard service as well. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that jurisdiction rests in Columbia, South Carolina. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2019. The Veteran’s wife, W.A., was present as a witness. A transcript of the hearing is of record. The Board remanded this matter in August 2019. The Board finds there has been substantial compliance with its August 2019 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) The Board notes that during the course of the appeal, the following two issues were before the Board: 1) entitlement to service connection for bilateral knee condition; and 2) entitlement to service connection for a back condition. The Board notes that in a November 2019 rating decision, the RO granted service connection for these issues. Therefore, the Board finds that the benefits sought have been granted in full; thus, these issues are no longer before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2018). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The term “active duty” includes full-time duty in the Armed Forces, other than active duty for training (ACDUTRA). 38 U.S.C. § 101 (21) (2012). The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C. § 101 (10) (2012). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty or period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21) and (24); 38 C.F.R. § 3.6 (a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6 (c)(1) (2018). With respect members of the National Guard, ACDUTRA means full-time duty under section 316, 502, 503, 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C. § 101 (22)(c). INACDUTRA includes duty (other than full-time duty) performed by a member of the National Guard of any State, under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 C.F.R. § 3.6 (d)(4). Any individual (1) who, when authorized or required by competent authority, assumes an obligation to perform ACDUTRA or INACDUTRA for training; and (2) who is disabled or dies from an injury or covered disease incurred while proceeding directly to or returning directly from such ACDUTRA or INACDUTRA shall be deemed to have been on ACDUTRA or INACDUTRA, as the case may be. 38 C.F.R. § 3.6 (e) (2018). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Service department records are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also 38 C.F.R. § 3.203, limiting the type of evidence accepted to verify service dates. The presumption of soundness under 38 U.S.C. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption pertaining to chronic diseases under 38 U.S.C. § 1112 and the presumption of aggravation under 38 U.S.C. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id.; see also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. In the absence of such evidence, the period of ACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” by virtue of ACDUTRA service alone. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board notes that the Veteran’s service treatment records from May 1954 to May 1957 are unavailable. Under these circumstances, VA has a heightened duty to assist the Veteran in developing his claim. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). 1. Entitlement to service connection for a bilateral foot condition Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and clear and unmistakable evidence demonstrates that the injury or disease was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2018). The Veteran contends that his bilateral foot condition was caused by service. As will be noted below, the Board finds that the Veteran had a pre-existing bilateral foot condition. On the Veteran’s entrance examination in March 1951, pes planus first degree was noted. The Veteran was determined qualified for enlistment. On service discharge examination in March 1954, the Veteran’s feet were reported to be normal. A January 1989 service treatment record noted bilateral pes planus. Because the March 1951 entrance examination documents pes planus first degree, the Board finds that pes planus existed prior to acceptance and enrollment for active military service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304. Thus, the presumption of sound condition does not apply in this case. 38 U.S.C. § 1111. The Board will, therefore, consider whether service connection is warranted on the basis of aggravation of a pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004) (concluding that “if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder”). A pre-existing disease or injury will be considered to have been aggravated by military 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 (2012); 38 C.F.R. § 3.306 (a) (2018). It is the veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the pre-existing disability increased in severity during service for the presumption of aggravation to attach. See Wagner, 370 F.3d at 1096; Verdon v. Brown, 8 Vet. App. 529, 538 (1996) (stating that the question of whether a preexisting defect or injury underwent an increase in severity “must be answered in the affirmative before the presumption of aggravation attaches”). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence demonstrating that any increase in disability was due to the natural progress of the disease, which burden is on the government. See Wagner, 370 F.3d at 1096; Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); 38 C.F.R. § 3.306 (b). A June 2009 VA treatment record noted pes planus. In a July 2015 notice of disagreement, the Veteran stated that his conditions began in service. He said that his records in service were destroyed by a fire. At the June 2019 Board hearing, the Veteran testified that his foot condition was caused by marching in boots while in Korea. In an October 2019 foot conditions disability benefits questionnaire (DBQ), bilateral flat foot and bilateral hallux valgus was diagnosed. The Veteran said that about a year into service he started having pain in both feet. He said the pain in his feet had gotten worse to the point where he had to wear arch support in his shoes. He reported pain and numbness. The examiner noted that the Veteran’s bilateral foot condition impacted his ability to work. The Veteran was retired and lost 0 to 1 week of work in the last 12 months. The Veteran said that he could not stand the same amount of time he used to. He also said that he could not walk the length of a distance he used to due to the pain in his feet. He stated that it was difficult to bear weight due to his bilateral flat feet. Finally, the Veteran said that the hallux valgus could make it difficult to wear shoes. In a separate October 2019 VA opinion, the examiner opined that it was less likely than not that the Veteran’s bilateral foot condition was caused by service. The examiner stated that the Veteran had a pre-existing foot condition, which was flatfoot before he entered service. The Veteran had no foot condition that occurred during service. In another October 2019 VA opinion, the examiner opined that the Veteran’s bilateral foot condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner stated that there was evidence to indicate that the Veteran continued to suffer from the disorder during service, which was typical of the condition. However, the progression was not beyond normal progression for this disorder. There was no evidence of permanent aggravation beyond normal progression identified. The examiner said that the Veteran had flat feet when he entered the service. There was no documentation in the claims file that showed the Veteran’s flat fleet progress during his time in service. Post-service treatment records are silent for any aggravation beyond its natural progression of the Veteran’s bilateral foot condition. In fact, there are minimal treatment records showing treatment for the Veteran’s foot condition. The Board acknowledges that records were destroyed in a fire. However, the post service treatment records fail to show consistent treatment for a bilateral foot condition. Therefore, despite the lack of service treatment records noting any aggravation, and post service treatment records that are minimal for treatment of the Veteran’s bilateral foot condition, the Board finds the evidence of record most probative. In this case, the March 1951 entrance examination showed that the Veteran had pes planus first degree. On service discharge examination in March 1954, the Veteran’s feet were reported to be normal. A January 1989 reserve service treatment record noted bilateral pes planus. The next medical evidence of pes planus was not until June 2009. This was many years following release from active duty. The Veteran is certainly competent to report on the severity of symptoms such as pain in service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating the “[l]ay testimony is competent... to establish the presence of observable symptomatology”). Here, however, the relevant inquiry turns on whether there was a change in the underlying pathology of the pre-existing foot disability, “as distinguished from the mere recurrence of manifestations of the pre-service condition.” Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (stating that “[e]vidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability.”). The Board finds that whether there was a change in the underlying pathology of the Veteran’s pre-existing flat feet is a medical determination. Because the Veteran is a lay person without the appropriate medical training and expertise, he is not competent to state that there was a change in the underlying pathology of his pre-existing pes planus condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Upon a review of the evidence of record, the Board finds that there is no evidence demonstrating that the Veteran’s pre-existing flat feet underwent an increase in severity chronically worsened (i.e., underwent a permanent increase in the underlying pathology beyond the natural progression) during his military service. Although the service treatment records noted bilateral pes planus again in 1989, the remainder of the service treatment records are silent as to any complaints of or treatment for bilateral flat feet. Moreover, the March 1954 separation examination showed the feet to be normal. To the extent that the Veteran experienced any exacerbation of pain during service on account of his military duties in 1989, an intermittent or temporary flare-up during service of a pre-existing injury or disease does not constitute aggravation pursuant to 38 U.S.C. § 1153 unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). As noted above, the VA examiner found that the Veteran’s bilateral foot condition was clearly and unmistakably not permanently aggravated beyond its natural progression. The evidence of record does not show any complaints of or treatment for pes planus from 1989 until 2009, a period of 20 years. Although the evidence of record reflects one notation of bilateral pes planus in the time frame between the Veteran’s service entrance and June 2009. This does not suggest a worsening in the underlying pathology of the Veteran’s pes planus; it suggests temporary flare up of symptoms at one point during service. Without some objective evidence demonstrating a worsening of the underlying pathology of the Veteran’s bilateral foot condition in service, the Board concludes that the evidence does not support a finding of aggravation. Thus, because the Veteran’s bilateral foot condition was noted to have pre-existed his active military service, and was not aggravated therein, the Board finds that the Veteran’s claim for service connected aggravation of pre-existing bilateral foot condition must be denied. See 38 C.F.R. §§ 3.303, 3.304, 3.306; see also Wagner, 370 F.3d 1089. 2. Entitlement to service connection for right hand carpal tunnel syndrome and entitlement to service connection for left hand carpal tunnel syndrome The Veteran asserts that his bilateral carpal tunnel syndrome is due to service. Available service treatment records are silent for complaints, treatment, or diagnosis of a wrist condition. In a July 2015 notice of disagreement, the Veteran stated that his conditions began in service. He said that his records in service were destroyed by a fire. In a January 2016 VA treatment record, x-ray of the right hand showed no evidence of displaced fracture or alignment abnormality. There was relatively stable secondary osteoarthritis predominantly involving the first metacarpal phalangeal joint and carpometacarpal and second through fifth distal DIPs. At the June 2019 Board hearing, the Veteran testified that he was treated for his hands in service. Specifically, he said that he caught his right hand in a cable and received shots for the injury. In an October 2019 peripheral nerves DBQ, the Veteran was diagnosed with bilateral carpal tunnel syndrome. The examiner noted that the Veteran was retired, and that his condition did affect his ability to work. He missed 0 to 1 week of work in the last 12 months. The Veteran was limited to how much weight he could carry in his hands. In a separate October 2019 VA opinion, the examiner opined that the Veteran’s bilateral carpal tunnel syndrome was less likely than not caused by service. The examiner said that symptoms were subjective only. Objective exam was normal. There was no objective evidence of a chronic condition. A nexus had not been established. The examiner stated that there was not sufficient evidence that showed a chronic condition. In another October 2019 VA opinion, the examiner opined that the Veteran’s bilateral carpal tunnel syndrome was less likely than not caused by service. The examiner said symptoms were subjective only. Objective exam was normal. Veteran had a “diagnose in the c-spinal for carpal tunnel syndrome.” There was no evidence that suggested the carpal tunnel was a chronic or caused “my the militat…nce of a chronic condition. A nexus had not been established.” In an October 2019 wrist conditions DBQ, the Veteran was diagnosed with bilateral carpal tunnel syndrome. The Veteran reported pain and numbness were due to carpal tunnel syndrome, not due to a wrist musculoskeletal structures. The Veteran said that in 1957 while in service, he was working with a cable and hit his hand injuring it. He said ever since then he had been having pain in his right hand that had gotten worse. He said that when he was in Korea both of his hands got some frostbite. The Veteran stated that ever since service, he had pain in both hands. The examiner noted that the Veteran was retired, and that his condition did affect his ability to work. He missed 0 to 1 week of work in the last 12 months. The Veteran said that it would be difficult for him to lift items as well as carry objects due to the pain in his hands. He said it was difficult to screw a lift off a bottle or other objects. In a January 2020 addendum VA opinion, the examiner opined that the Veteran’s bilateral carpal tunnel syndrome was less likely than not caused by service. The examiner reasoned that the Veteran’s medical records in 1973, 1977, 1981, or 1985, were silent for any bilateral wrist complaints. The examiner noted the Veteran’s lay statement of numbness and tingling in both hands with onset of 1957. The examiner said that the medical examinations completed post service were silent for any ongoing complaints of pain or issues to bilateral wrist/hand. The Veteran’s diagnosis of carpal tunnel syndrome was not given until 2019. There was no evidence in medical records supporting a diagnosis for carpal tunnel syndrome until the day of examination in October 2019. The claims folder was silent for chronic diagnosed carpal tunnel syndrome. Therefore, the examiner concluded that the Veteran’s bilateral carpal tunnel syndrome was less likely related to service. No nexus was established. Additional post service treatment records are silent for any nexus between the Veteran’s bilateral carpal tunnel syndrome and service. Again, the Board acknowledges that records were destroyed in a fire. However, the post service treatment records fail to show a diagnosis of bilateral carpal tunnel syndrome until 2019. The Board finds that there is no evidence of continuity of treatment to suggest that the Veteran’s bilateral carpal tunnel syndrome is due to service. In forming this opinion, the Board has also considered the Veteran’s lay statements in support of his claim. However, the Board finds the medical evidence more probative in this instance. Here, the medical evidence of record weighs against the Veteran’s claim, and does not support his statement that bilateral carpal tunnel syndrome was due to service. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for bilateral carpal tunnel syndrome is not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown, Associate 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.