Citation Nr: 21000360 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 08-36 941A DATE: January 5, 2021 ORDER Entitlement to service connection for a left foot disorder is granted. Entitlement to service connection for a right foot disorder is granted. Entitlement to service connection for a left knee disorder is granted. Entitlement to service connection for sinusitis is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, her right foot disorder, variously diagnosed as pes planus, hallux valgus, and plantar fasciitis, was incurred during periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). 2. Resolving reasonable doubt in the Veteran’s favor, her right foot disorder, variously diagnosed as pes planus and plantar fasciitis, was incurred during periods of ACDUTRA and INACDUTRA. 3. Resolving all reasonable doubt in the Veteran’s favor, her left knee disorder was incurred during periods of ACDUTRA and INACDUTRA. 4. Resolving reasonable doubt in the Veteran’s favor, her currently diagnosed sinusitis, as likely as not, had its onset during a period of ACDUTRA. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for a left foot disorder have been met. 38 U.S.C. §§ 101 (2), (22)-(24), 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for a right foot disorder have been met. 38 U.S.C. §§ 101 (2), (22)-(24), 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a left knee disorder have been met. 38 U.S.C. §§ 101 (2), (22)-(24), 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309. 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for sinusitis have been met. 38 U.S.C. §§ 101 (2), (22)-(24), 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty, including ACDUTRA in the Army National Guard from July 1978 to December 1978, July 1986 to January 1987, August 1990 to September 1990, May 1999 to June 1999, and May 2000. She also had multiple periods of INACDUTRA during the period from December 1982 to June 2002. This matter comes before the Board of Veterans’ Appeals (hereinafter Board) on appeal from an April 2014 rating decision, by the Indianapolis, Indiana, Regional Office (RO), which denied service connection for a left foot disorder, service connection for a right foot disorder, service connection for a left knee disorder, and service connection for sinusitis. The Veteran perfected a timely appeal to that decision. In June 2017, the Board remanded the Veteran's claim and requested that the Agency of Original Jurisdiction (AOJ) schedule her for a videoconference hearing. In August 2017, the Veteran testified at a videoconference hearing before a Veterans Law Judge, with respect to the issues on appeal. A transcript of the hearing is of record. In December 2018, the Board remanded the case to the RO for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in July 2020. The Veterans Law Judge who conducted the August 2017 hearing is no longer employed at the Board. In October 2020, the Board advised the Veteran that it would afford her the opportunity to provide testimony before another Veterans Law Judge. She was also advised that she was to respond within 30 days if she wanted another hearing and that if no response was received within the prescribed time period, the Board would assume that she did not want another hearing. The Veteran did not request another hearing within the allotted 30 days. As such, the Board may proceed with appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Active service includes active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38U.S.C. § 101(24); 38 C.F.R. § 3.6. Military personnel records indicate that the Veteran was discharged from the Army National Guard in June 2004. Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service, even though there is no evidence of such disease during service. 38U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a) (2019). This presumption only applies to periods of active duty and not to the Veteran’s ACDUTRA or INACDUTRA because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or ACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24Vet. App.40, 45 (2010). The Veteran can attest to factual matters of which he or she has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left foot disorder 2. Entitlement to service connection for a right foot disorder The Veteran maintains that she developed a bilateral foot disorder as a result of military service. In a statement, dated in September 2013, the Veteran indicated that, during the period from 1982-2001 on weekend drills active/inactive duty training and as a full-time military technician, she wore men boots year-round. She noted that the boots caused a stabbing pain when she walked or moved around, and she still feels this pain today. The Veteran also noted that during BNCO and ANCO courses the second week of training in the field, her feet would get wet and damp. At her personal hearing in 2017, the Veteran indicated that she was a full time military technician for over 18 years and had to wear the military uniform which included combat boots for those years; she maintained that the problems with her feet developed because of the boots she wore during those 18 years. As an initial matter, the medical evidence of record reflects that the Veteran has had a diagnosed with a bilateral foot disorder during the appeal. A private treatment note, dated in March 2010, reflects diagnoses of onychogryphosis, onychomycosis, and tinea pedis. A subsequent treatment note in June 2010 reported diagnoses of hallux valgus, hammer toe, onychogryphosis and onychomycosis. More recently, a Disability Benefits Questionnaire (DBQ) examination reported findings of bilateral pes planus, hallux valgus of the left foot, and bilateral plantar fasciitis. Thus, the question before the Board is whether the Veteran's current bilateral foot disorder is related to her active duty, ACDUTRA service, or her INACDUTRA service. It is noteworthy that the service treatment records indicate that the Veteran was seen at a podiatry clinic in August 1978 complaining that her boots were too small. It was noted that the plan was to reissue her foot gear. An examination in 1995 reported findings of pes planus, moderate, asymptomatic. The Board also finds that the Veteran is competent and credible regarding her reports of wearing ill-fitting boots during ACDUTRA. Submitted in support of the Veteran’s claim is a medical statement from Dr. Y. C., dated in February 2012, indicating that the Veteran had been assessed with plantar fasciitis, heel spurs and hallux valgus, and it was his opinion that her condition could most likely be attributed to standing and activities in boots/shoes that are not supportive during active and inactive duty. Following the December 2019 DBQ examination, the VA examiner opined that the claimed foot condition was at least as likely as not incurred in or caused by the claimed inservice injury, event or illness. The examiner noted that a review of medical records indicates that the claimant has a long history of wearing boots and a foot problem. It was also noted that the Veteran was treated several times by her long-term primary care doctor, Dr D. M. who testified about the feet problems. The examiner stated that military physical activities like hiking, running, marching and jogging causes wear and tear of feet; and, wearing military boots for long periods of time causes pressure on toes and can result in bunions. The examiner explained that a bunion is a bony bump that forms on the joint at the base of the big toe and it occurs when some of the bones in the front part of the foot move out of place. She further explained that wearing tight, narrow shoes might cause bunions or make them worse (Mayo Clinic, 2019). The examiner noted that this is consistent with wearing military boots for several years. The examiner further noted that plantar fasciitis is one of the most common causes of heel pain and that it involves inflammation of a thick band of tissue that runs across the bottom of the foot and connects the heel bone to the toes (plantar fascia). Plantar fasciitis is more common in runners and those who wear shoes with inadequate support have an increased risk of plantar fasciitis (Mayo clinic,2019). Therefore, the examiner opined that the Veteran has a diagnosis of left and right foot plantar fasciitis, bunion and pes planus related to serving in the military. In an addendum dated in June 2020, the DBQ examiner explained that foot plantar fasciitis, bunion and pes planus occur progressively over time and impossible to pinpoint the exact time and incident of occurrence because of anatomical and physiological changes that occurs progressively. Therefore, the examiner again opined that the Veteran has diagnosed right and left foot plantar fasciitis, bunion and pes planus that likely incurred during military service, ACDUTRA or INACDUTRA. The Board finds the physicians' opinions to be competent, credible and highly probative. The physicians reviewed the evidence of record, accounted for the lay statements and provided a medical opinion based on an adequate rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary opinion of record nor is there sufficient basis for the Board to reject these supportive opinions and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). The Board finds the medical opinions to be highly probative and sufficient to satisfy the third Shedden element. Therefore, resolving the benefit of the doubt in the Veteran's favor, service connection for a bilateral foot disorder is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Entitlement to service connection for a left knee disorder The Veteran essentially contends that her left knee disorder developed as a result of activities in service. In a statement in support of claim, dated in July 2012, the Veteran indicated that she injured her knees during active duty training at Fort McCoy in 1999. She noted that the first incident occurred when she jumped out of the military vehicle; after jumping from the vehicle, her left knee locked up. The Veteran indicated that, within a couple of hours, her left knee became painful, and she developed swelling. The Veteran indicated that she took Tylenol and was given ice packs, but she didn’t go to sick call. The Veteran maintains that, since training at Fort McCoy, she also experienced grinding and popping that feels like her knees were locking up or might give out. As an initial matter, the evidence of record establishes that the Veteran has a current left knee disorder. A May 2010 VA addendum reported a diagnosis of left knee medial tibial osteophyte, medial compartment narrowing. An X-ray study dated in April 2012 revealed mild degenerative joint disease in the left knee. A recent DBQ examination in November 2019 reported a diagnosis of degenerative arthritis, left knee. Thus, the question before the Board is whether the Veteran's current left knee disorder, which would constitute an injury, is related to her active duty, ACDUTRA service, or her INACDUTRA service. The Veteran served on active duty from July 27, 1978 to December 14, 1978, and from July 1986 to January 1987. The Veteran then served in the Reserves from 1977 to 2002. The Veteran’s personnel records document that her Military Occupational Specialty (MOS) was Executive Administrative Specialist and Occupational Health Technician. Her Retirement Points Statements from the Reserves also document several active duty and inactive duty points from 1977 to 2002. The Veteran’s service treatment records show that she was on active duty training in June 1999. Submitted in support of the Veteran’s claim is a lay statement from R. L., a senior instructor for the Army Reserves dated in December 2007. The instructor reported that the Veteran had just completed a medical assistance training course and was participating in the phase II portion of the course at Fort McCoy, Wisconsin. He reported witnessing the Veteran jumping out of a vehicle and injuring her left knee during a field training exercise in June 1999. The individual indicated that the Veteran did not seek medical attention for fear that she would be dropped from the course; however, she subsequently sought treatment when she lost her footing on a stairwell and felt injured her right knee. Also submitted in support of the claim is a medical statement from Dr. D.M., dated in July 2011, indicating that the Veteran sustained various physical injuries to her knees during active duty and drill training weekends. Also of record is another statement from Dr. D.M., dated in May 2012, wherein she noted that the Veteran reported jumping from a vehicle and twisted her left knee during active duty training at Fort McCoy; she stated that the pain did not completely go away but she managed. VA treatment reports include a physical therapy consult note, dated in July 2012, wherein it was noted that the Veteran had left knee pain since 1999 when jumping out of a moving vehicle. She noted that the knee pain had been going on for quite a long time. In December 2019, the VA examiner opined that the claimed left knee condition was at least as likely as not incurred in or caused by the claimed inservice injury, event, or illness. The examiner noted that a review of the medical records indicate that the Veteran has a long history of knee problems. The examiner also noted that the Veteran was treated several times by her long-term primary care doctor, Dr D. M., who testified about the knee problems. The examiner indicated that, during the current physical examination, she had left and right knee crepitus and tenderness. The examiner explained that military physical activities like hiking, running, marching and jogging cause wear and tear of the joints especially feet, knees and hips. Therefore, the examiner concluded that the Veteran has a diagnosis of left knee arthritis that is likely related to serving in the military. In an addendum dated in June 2020, the VA examiner explained that knee arthritis occurs progressively over time and it’s impossible to pinpoint exact time and incident of occurrence because of anatomical and physiological changes that occurs progressively. The examiner further noted that arthritis is the wear and tear of joints. Review of medical records, scientific data, subjective data and medical literature supports the notion that current left knee arthritis is likely related to serving in the military. Therefore, the examiner concluded that the Veteran has diagnosis of left knee arthritis that likely incurred during military service, ACDUTRA or INACDUTRA. The Board finds both physicians’ opinions to be competent, credible and highly probative. The physicians’ reviewed the evidence of record, accounted for the lay statements and provided a medical opinion based on an adequate rationale. Nieves-Rodriguez v. Peake, supra. Moreover, there is no medical opinion on record to contradict the physicians’ opinions. After careful review of the evidentiary record, the Board finds that the available lay evidence coupled with the December 2019 medical opinion, the June 2020 addendum, as well as the private medical opinion, weigh in favor of a grant of service connection. Specifically, the VA examiner did find that the Veteran's left knee disorder was due to an injury that occurred during military service, ACDUTRA or INACDUTRA. Indeed, the record also includes statements from the Veteran that her left knee began bothering her in relation to her military training, and a lay statement from an instructor in the Reserves also indicates that she began complaining of left knee pain after jumping out of a vehicle and injuring her left knee during a field training exercise in June 1999. Moreover, while the available service treatment records do not document the Veteran's left knee injury during active service, ACDUTRA, or INACDUTRA service, a July 2012 VA physical therapy consultation note indicated that the Veteran reported having had left knee pain since 1999 when jumping out of a moving vehicle. It is noteworthy that service connection has been established for a right knee injury resulting from the June 1999 incident. There is no contrary opinion of record nor is there sufficient basis for the Board to reject these supportive opinions and to further develop the claim. Cf. Mariano v. Principi, supra. Accordingly, resolving all reasonable doubt in the Veteran's favor, service connection for a left knee disorder is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 4. Entitlement to service connection for sinusitis The Veteran contends that she has recurrent sinusitis that is related to her military service. In a statement in support of claim, the Veteran indicated that she began experiencing sinus conditions during drill weekends on active duty as well as inactive duty training in 1985. The Veteran indicated that she would return home from drill weekends and wait until the following weekday and take over-the-counter sinus medication. The Veteran indicated that, in most cases, she experienced symptoms year-round and they lasted as long as up one to two weeks at a time. In this regard, the Board notes that VA as well as private treatment reports show multiple diagnoses of acute sinusitis throughout the appeal period. Additionally, a December 2019 DBQ examination report noted diagnoses of allergic rhinitis and bilateral rhinitis. Accordingly, the first element of service connection, a current disability, has been established. The treatment reports from the Veteran’s period of National Guard service reflect that she was seen in October 1978 with complaints of cold symptoms, including nasal and chest congestion. During an examination in February 1995, the Veteran also reported a history of hay fever. Thus, the question before the Board is whether the Veteran’s current sinus condition is related to her active duty, ACDUTRA service, or her INACDUTRA service. In this case, following the December 2019 DBQ examination, the examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed inservice injury, event or illness. The examiner indicated that review of medical records indicates that the Veteran had a long history of allergies and sinus infections during active duty and National Guard. The examiner further noted that the Veteran was treated several times by her long-term primary care doctor, Dr D.M. who provided testimony regarding the allergies and sinus infections. The examiner further noted that, during today's physical exam, the Veteran had enlarged turbinates. Therefore, the examiner concluded that the Veteran had a diagnosis of allergic rhinitis and bacterial rhinitis that was incurred during service. In an addendum dated in June 2020, the VA examiner explained that, review of medical records indicates that claimant has a long history of allergies and sinus infections during active duty and National Guard. The examiner noted that treatment reports from the Veteran’s period of National Guard service reflect that she was seen in October 1978 with complaints of cold symptoms, including nasal and chest congestion. The examiner further noted that post service treatment records, including VA as well as private treatment reports, reflect diagnoses of acute sinusitis and rhinitis. In a statement dated in July 2011, Dr. M. noted that, while on active duty during training weekends, the Veteran inspected maintenance shops, various buildings, firing ranges, testing planes to make sure that they were decontaminated for various museums, and all these activities affected her respiratory condition. The examiner explained that sinusitis occurs progressively over time and impossible to pinpoint the exact hour or date when the exposure occurred. The examiner observed that medical records and history indicates that the Veteran served in in areas where she was exposed to irritants; and, environmental irritants are the most risk factors for development of sinusitis. The examiner further explained that the body immune system progressively responds to the environmental irritants and eventually leads to the development of chronic sinusitis. Therefore, she concluded that the Veteran has a diagnosis of chronic sinusitis that likely incurred during military service, ACDUTRA or INACDUTRA. The Board gives significant probative weight to the December 2019 VA examiner's opinion and June 2020 addendum as they are based on a review of the claims file and review of the medical literature, examination of the Veteran, and expresses sound reasoning for their conclusions. See Nieves-Rodriguez v. Peake, supra. Importantly in this case, the opinions are based on an objective examination of the Veteran and review of the claims file, rather than relying solely on the Veteran's self-reported history. There is no contrary opinion of record nor is there sufficient basis for the Board to reject these supportive opinions and to further develop the claim. Cf. Mariano v. Principi, supra. In sum, the Board finds that service connection for sinusitis is warranted. Accordingly, resolving all reasonable doubt in the Veteran’s favor, service connection for sinusitis is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Suzie S. Gaston, 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.