Citation Nr: 20021958 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-24 954A DATE: March 30, 2020 ORDER Entitlement to service connection for achilles tendonitis, right lower extremity, is granted. Entitlement to service connection for right heel spurs is dismissed. REMANDED Entitlement to service connection for chronic low back strain, including as secondary to a right knee disability, is remanded. Entitlement to service connection for degenerative joint disease (DJD), right shoulder, is remanded. Entitlement to service connection for DJD, left shoulder, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s achilles tendonitis, right lower extremity, began during active service. 2. The Veteran requested to withdraw his appeal for the issue of entitlement to right heel spurs at the September 2019 Board hearing. CONCLUSIONS OF LAW 1. The criteria for service connection for achilles tendonitis, right lower extremity, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for right heel spurs are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 2007 to June 2008, and from November 2010 to December 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA). The Veteran appeared before the undersigned Veterans Law Judge in September 2019 and a transcript of the hearing has been associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for achilles tendonitis, right lower extremity The Veteran contends that he suffers from achilles tendonitis of his right lower extremity due to an injury in service. The Veteran’s service treatment records show that he was treated for pain in his right ankle and foot in June 2011. He was diagnosed with achilles tendonitis in his right foot. An MRI in August 2011 showed partial tears in the central Achilles tendon. The Veteran was provided with physical therapy for his achilles tendonitis from July 2011 through September 2011. In January 2012, only one month after the Veteran’s separation from service, private treatment records show that he was provided treatment for his achilles tendonitis. The Veteran reported that the onset was seven months ago, consistent with the documented reports in his service treatment records. In August 2012, private treatment records show that the Veteran had a history of achilles tendonitis in his right foot since last year. He was assessed with insertional achilles tendonitis of the right foot with chronic pain. Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, to link chronic in-service symptoms to the same diagnosed current disability, or as a substitute for a nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). As noted above, the Veteran was diagnosed with achilles tendonitis of his right foot while in service. He was also provided with physical therapy for this disability for several months while in service. The Veteran has competently reported right achilles pain ever since, which is consistently corroborated by the objective medical evidence of record. The Board acknowledges the April 2016 VA examination showing that the Veteran’s achilles tendonitis of the right ankle had resolved. The VA examiner opined that the Veteran’s disability was less likely than not due to his service because his symptoms are subjective only. However, the Board finds that this opinion has no probative value in this case. Medical opinions that are based on an inaccurate factual predicate are afforded no probative value. See Reonal v. Brown, 5 Vet. App. 548 (1993). Here, the April 2016 VA examiner based his negative opinion on the lack of objective evidence regarding the Veteran’s disability. As noted above, the Veteran was treated for his achilles tendonitis of the right lower extremity one month after separation from service and his private treatment records show a diagnosis within one year of his separation from service. More significantly, however, outpatient treatment document that Achillis tendonitis is an active problem during the appeal period. The Veteran has experienced continuity of symptomatology of his achilles tendonitis of the right foot from his time in service to the present. The Veteran was also diagnosed with the same disability in service and within one year of separation from service. Accordingly, the Board finds that service connection for achilles tendonitis, right lower extremity, is warranted. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Withdrawal of Appeal 2. Entitlement to service connection for right heel spurs Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. During the September 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to service connection for right heel spurs. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to the appeal. In addition, the VLJ discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences. See September 2019 Board hearing transcript. REASONS FOR REMAND 1. Entitlement to service connection for chronic low back strain, including as secondary to a right knee disability The Veteran contends that he suffers from chronic low back strain as a result of his service. Specifically, the Veteran claims that he had to routinely carry between 60 to 100 pounds of gear on his back, which caused his current disability. In the alternative, the Veteran contends that his low back disability is secondary to his service-connected right knee disability. The Veteran was provided with a VA examination in September 2013 where he was diagnosed with chronic back strain with bilateral lower extremity radiculopathy. The VA examiner opined that the condition was less likely than not due to his service because there is no objective evidence in the claims file of a back injury or chronic treatment. However, the Board finds that the Veteran is competent to report symptoms of back pain. As the Veteran filed his claim for service connection only two months after his separation from service, the Board finds that this is sufficient evidence indicating that the Veteran had symptoms as early as February 2012. Additionally, VA treatment records from August 2012 show that the Veteran had chronic low back issues and low back pain. As such, the Board finds that the September 2013 VA examination report is inadequate because the VA examiner based his negative nexus opinion on the lack of documentation showing a chronic condition. The Veteran was most recently provided with a VA examination in April 2016 where the VA examiner noted normal results and opined that the condition was less likely than not due to his service because there is no diagnosis for a lumbar spine condition. The Board finds that the April 2016 VA examination report is also inadequate because the evidence of record shows a diagnosis for a back disability during the appellate period. Accordingly, an addendum opinion is required prior to adjudication of this claim. 2. Entitlement to service connection for DJD, right and left shoulder The Veteran contends that he suffers from a bilateral shoulder disability as a result of his service. Specifically, the Veteran claims that he sustained a repetitive strain injury from performing physical fitness and conducting combat missions with military gear. See February 2014 notice of disagreement. The Veteran was provided with a VA examination in September 2013 where the VA examiner noted a diagnosis for mild DJD of the bilateral AC joints. The examiner opined that the condition was less likely than not due to his service because there is no objective medical evidence of any chronic shoulder condition or injury while in the military. However, the Board finds that the Veteran is competent to report symptoms of shoulder pain in service. The Board finds that the September 2013 VA examination report is inadequate because the VA examiner did not consider the Veteran’s lay statements regarding his duties and symptoms in service. The Veteran was most recently provided with a VA examination in April 2016 where the VA examiner noted normal results. The examiner opined that the Veteran’s condition was less likely than not due to his service because there was no diagnosis of bilateral DJD. The Board finds that the April 2016 VA examination report is also inadequate because the evidence of record shows a diagnosis for a mild DJD of the bilateral AC joints during the appellate period. The Board notes that the Veteran has also argued that he has suffered from bilateral shoulder pain since his time in service. Accordingly, an addendum opinion addressing the diagnosis for a bilateral shoulder disability during the appellate period as well as the Veteran’s lay statements regarding his symptoms in service and post-service is required prior to adjudication of these claims. 3. Entitlement to service connection for bilateral hearing loss The Veteran contends that he suffers from bilateral hearing loss as a result of his service. The Veteran claims that noise exposure while serving as a rifleman in service is what caused his current disability. The Veteran was provided with a VA hearing loss examination in September 2013. The audiological examination showed normal hearing for VA purposes. At the September 2019 Board hearing, the Veteran testified that although the September 2013 VA examination did not show hearing loss for VA purposes, he now has hearing loss. The Veteran indicated that the results were in his VA treatment records from the Harlingen VA clinic. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2019 to the present. 2. Arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion regarding whether the Veteran’s low back disability, to include chronic back strain with bilateral lower extremity radiculopathy, is at least as likely as not (50 percent probability or greater) related to any in-service disease, injury, or event. In so opining, the examiner should consider and discus the Veteran’s reports of routinely carrying 60 to 100 pounds of gear on his back. The examiner should also provide an opinion on whether it is at least as likely as not that the Veteran’s back disability is (1) proximately due to his right knee disability, or (2) aggravated beyond its natural progression by his right knee disability. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. For purposes of providing an opinion only, the examiner should accept the Veteran’s account of medical history as true unless there is a medical reason to doubt its veracity. In such a case, the examiner should explain why the Veteran’s recollection is inconsistent with principles of medical science and/or the evidence in this case. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion regarding whether the Veteran’s right and left shoulder disabilities, to include mild DJD of the bilateral AC joints, are at least as likely as not (50 percent probability or greater) related to any in-service disease, injury, or event. In so opining, the examiner should consider and discus the Veteran’s reports of repetitive strain injuries from performing physical fitness and conducting combat missions with military gear while in service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. For purposes of providing an opinion only, the examiner should accept the Veteran’s account of medical history as true unless there is a medical reason to doubt its veracity. In such a case, the examiner should explain why the Veteran’s recollection is inconsistent with principles of medical science and/or the evidence in this case. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.