Citation Nr: 21000799 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-41 162A DATE: January 6, 2021 ORDER Entitlement to service connection for a bilateral foot disability is granted. Entitlement to service connection for a bilateral ankle disability is granted. REMANDED Entitlement to service connection for a bilateral wrist disability is remanded. Entitlement to service connection for a bilateral hip disability, to include as secondary to a lumbar spine disability, is remanded. Entitlement to service connection for hypertension, to include as secondary to a lumbar spine disability, is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in her favor, the Veteran’s bilateral foot disability is causally or etiologically due to service. 2. Resolving all reasonable doubt in her favor, the Veteran’s bilateral ankle disability is causally or etiologically due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a bilateral ankle disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1980 to December 1990. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from October 2011 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in April 2018 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In June 2018, the Board remanded these claims for additional development. Service Connection 1. Entitlement to service connection for a bilateral foot disability. 2. Entitlement to service connection for a bilateral ankle disability. The Veteran seeks entitlement to service connection for a bilateral foot disability and a bilateral ankle disability. In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); 38 C.F.R. § 3.303. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). The Veteran has current diagnoses of bilateral plantar fasciitis, bilateral pes planus, bilateral sinus tarsitis, bilateral ankle sprain, and bilateral ankle tendonitis. See July 2019 VA examination; November 2019 private evaluation. The Board notes the Veteran is currently service connected for right sinus tarsi syndrome (right ankle). Element (1) set forth under Shedden, current disability, has been satisfied for both claims. Regarding element (2), an in-service incurrence or aggravation of a disease or injury, the Veteran asserts that as a cook during service, standing long hours, using her feet and ankles to maintain her balance on the ship, moving boxes and performing repetitive movements caused her current disorders. Service personnel records confirm that her military occupational specialty was a mess management specialist, responsible for the preparation of meals, maintaining cleanliness and sanitation of pantry areas and officers’ staterooms, and also served as an instructor for mess management specialist school. The Board finds the Veteran’s assertions of standing for long hours, using her feet and ankles to maintain balance, and performing repetitive movements are consistent with the circumstances of her service, including the duties associated with her military occupational specialty; Shedden element (2) is met for both claims. In a November 2019 Disability Benefits Questionnaire (DBQ), a VA podiatrist opined that no one-time trauma caused the Veteran’s ankle and foot injuries. Explaining, the physician opined that over ten years as a Navy cook, loading supplies, lifting, pushing and pulling heavy items, walking up and down ladders and 12 hour shifts standing in steel toed boots are the probable cause of injuries to her feet and ankles, bilaterally. See November 2019 DBQ from Dr. N. The VA podiatrist also attached a statement opining that the Veteran’s job requirements during service were more likely than not the cause of her current multiple ankle and foot pathologies. Additionally, in a November 2019 letter, chiropractor Dr. W., stated that he agreed with the assessment of Dr. N. Specifically, standing, climbing ladders, walking, lifting, pushing heavy objects and wearing steel toed boots for her twelve hour shifts as a cook in the Navy more likely than not caused her current disorders. Finally, in a November 2019 letter, Dr. C., also opined that it was within reasonable medical probability that the Veteran’s chronic right and left ankle conditions were due to prolonged standing as a cook for the Navy as a result of the amount of time she spent on her feet, the number of shifts per week, and number of hours per shift. Dr. C. also opined that the same mechanisms and physical exposures involved with her ankles affected her feet, resulting in flat feet and chronic plantar fibromatosis, which have remained symptomatic from her time in the military until present day. The Board notes the negative July 2019 VA opinion, wherein the examiner opined the Veteran’s claimed disorders were less likely than not due to service. The examiner explained that empiric evidence does not support a causative relationship between the usual and customary work tasks associated with cooking and the Veteran’s current disorders. The examiner opined that the mechanical load and frequency of loads the Veteran would likely experience as a cook is well within a physiologic range and is unlikely to overload and overwhelm musculoskeletal tissue. Resolving all reasonable doubt in the Veteran’s favor, the Board finds Shedden element (3), nexus, is met for both claims. The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Under the benefit of the doubt rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Given the evidence of record, the Board resolves doubt in the Veteran’s favor and finds that the evidence supports the establishment of service connection for a bilateral foot disability and a bilateral ankle disability. The Veteran has current diagnoses, verified in-service duties consistent with her MOS, and medical opinions that relate her current diagnoses to her time in service. In light of the discussion above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. As such, the Veteran’s claims are granted. REASONS FOR REMAND 3. Entitlement to service connection for a bilateral wrist disability is remanded. 4. Entitlement to service connection for a bilateral hip disability, to include as secondary to a lumbar spine disability, is remanded. 5. Entitlement to service connection for hypertension is remanded. Since the issuance of the October 2019 Supplemental Statement of the Case, additional pertinent evidence in the form of VA records and VA examinations for the bilateral hips and hypertension were associated with the claims file. If new evidence is submitted from the Veteran or her representative with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests Agency of Original Jurisdiction (AOJ) consideration. See 38 U.S.C. § 7105 (e). Here, the Veteran submitted private medical records as well as statements pertaining to her claims, and because the Veteran filed her substantive appeal after February 2013, waiver of that evidence is presumed. However, this automatic waiver does not extend to evidence that was developed by VA. Here, VA treatment records and VA examinations for the bilateral hips and hypertension were associated with the claims file. As these records were obtained by VA rather than the Veteran, there is no automatic waiver of AOJ review. Recognizing such, the Board requested a waiver of initial AOJ consideration of these records in an October 2020 letter sent to the Veteran and her attorney. The Veteran was notified in this letter that she had 45 days to respond, otherwise the Board would remand her claims. The Veteran did not respond to the waiver request and the 45-day period has elapsed. Accordingly, the issues are remanded to the AOJ for the readjudication and issuance of a Supplemental Statement of the Case (SSOC), if warranted. 38 C.F.R. § 19.31. The matters are REMANDED for the following action: After consideration of the evidence received after the October 2019 supplemental statement of the case, readjudicate the remaining claims on appeal. If the benefits sought are not granted, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.