Citation Nr: 21000891 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-07 485 DATE: January 6, 2021 ORDER Entitlement to service connection for a respiratory condition (also claimed as chronic cough) is granted. Entitlement to service connection for anal condyloma is granted. Entitlement to service connection for erectile dysfunction (ED) is granted. Entitlement to service connection for fungal infection of the great right toe is granted. Entitlement to service connection for bilateral lower extremity radiculopathy is granted. Entitlement to service connection for bilateral plantar fasciitis (also known as pes planus) is granted. REMANDED Entitlement to service connection for anal fissure is remanded. Entitlement to service connection for oral squamous papilloma is remanded. FINDINGS OF FACT 1. The Veteran’s chronic cough is attributable to service. 2. The Veteran’s anal condyloma is attributable to service. 3. The Veteran’s ED is attributable to service. 4. The Veteran’s fungal infection of the great right toe is attributable to service. 5. The Veteran’s bilateral lower extremity radiculopathy is attributable to service. 6. Bilateral pes planus was noted on the Veteran’s June 1992 enlistment examination report. 7. The evidence is in at least relative equipoise as to whether the Veteran’s pre-existing bilateral pes planus permanently increased in severity during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory condition (also claimed as chronic cough) have been met. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for anal condyloma have been met. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for ED have been met. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for fungal infection of the great right toe have been met. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for bilateral lower extremity radiculopathy have been met. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for bilateral pes planus, on an aggravation basis, are met. 38 U.S.C. §§ 1111, 1131, 1153; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from May 1993 to December 2013. Over the 20 years served, the Veteran took part in combat and received numerous awards and medals. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2014 and July 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in a Board hearing in July 2020. The transcript has been associated with the record. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303 (b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for chronic cough The Veteran contends that his chronic cough had its onset while in service. The Veteran’s June 1992 entrance examination is silent for any symptoms of a chronic cough or a respiratory disorder. The Veteran’s service treatment records (STRs) have multiple entries of complaint and treatment of a chronic cough. In April 2007, the Veteran was seen for a cough he had for five weeks. The records reported that the cough started with the flu but was now a residual cough. In August 2010, the Veteran was seen for his chronic productive cough. He was afforded a chest CT scan with unremarkable findings. In another August 2010 medical note, the examiner reported that the Veteran had a chronic cough with sputum production. Another August 2010 medical treatment report noted that the six months ago he would cough and not produce sputum during the day, but that he was now producing sputum two to three times a day. The examiner reported that the Veteran got hoarse and that he has had a chronic cough since 2003 or 2004. He was seen in July 2011 where the examiner noted that the Veteran had a chronic cough for over five years. He was seen again in September 2011 and was diagnosed with a chronic cough. The October 2013 separation examination noted that the Veteran suffered from a chronic cough. Post-service treatment records report that the Veteran has a chronic cough in a problem list starting since separation. The Board finds that the Veteran has clearly asserted evidence of chronicity due to the numerous complaints of a chronic cough throughout service. There are about seven instances where the Veteran sought treatment or complained of his chronic cough. In each of these instances, the cough was attributed to the previous instances of a chronic cough. These were not isolated findings or diagnoses that included the word “chronic.” According to the record, all these manifestations were connected and were the same chronic cough. Because there is evidence that the Veteran experienced a chronic cough post-service and there is evidence of chronicity of the cough, this completes the requirements to establish service connection based on chronicity. Therefore, service connection for a chronic cough is warranted. 2. Entitlement to service connection for anal condyloma, ED, fungal infection of the great right toe, and bilateral lower extremity radiculopathy The Veteran contends that his anal condyloma, ED, fungal infection of the great right toe, and bilateral lower extremity radiculopathy originated in service. STRs show many instances of treatment and complaint for all four of these issues. The June 1992 entrance examination is silent for all of these issues. In December 2011, the Veteran was evaluated and diagnosed with anal condyloma. In June 2012, a medical noted reported that the Veteran was diagnosed with anal condyloma and received topical therapy to treat it. In a July 2013 medical note, the examiner reports that the Veteran first noticed he had anal condyloma in December 2011. The examiner further explained that the Veteran had it surgically removed in June 2012, which had resolved until about a year later where he noticed a lump near his anus. The examiner reported that the Veteran had a history of chronic intermittent anal fissure. In July 2006 the Veteran complained of ED. The examiner reported that the Veteran had an inadequacy of penile erection and poor duration, but no impotence. Since then he had repeatedly complained of ED and it was listed in the chronic problems throughout service. In July and August 2001, the Veteran was treated for a fungal infection of the right big toe. In August 2006, the Veteran complained of radicular pain down to the lower extremities. A June 2012 radiology report revealed disc degeneration in the cervical and lumbar spine. And lastly, in the October 2012 separation examination, all four of these disabilities were listed as problems the Veteran had. As such, the first criteria for service connection has been satisfied since there has been complaints and treatments for all four of the disabilities. As for whether a current disability exists, VA and private treatment records post-service exhibit that each disability exists. The May 2014 General Medical Separation Health Assessment reported that the Veteran has been treated for anal condyloma and that it has recurred many times. Treatment records since then have shown anal condyloma and ED in a problems list. The medical records also contain a diagnosis history of some of the Veteran’s disabilities and disorders. It shows that the Veteran first sought treatment in December 2013 up until June 2015. It also shows that the Veteran has received treatment for ED since June 2016. Treatment records also show radiculopathy of the lower extremities in August 2020 and December 2019. A private medical examiner also diagnosed the Veteran with anal condyloma, ED, bilateral lower extremity radiculopathy, and a fungal infection of the great right toe in documents received by VA in August 2015. As such, the Board finds that the Veteran has a current disability for all four of the disabilities listed above. As for whether there is a nexus between the in-service occurrence and the current disability, the Board relies on the private medical examiner’s opinions regarding all four of the disabilities. In this August 2015 treatment record, the examiner first states that the Veteran currently suffers from anal condyloma, ED, bilateral lower extremity radiculopathy, and a fungal infection of the great right toe. The examiner then claims that it is more than likely (greater than 50 percent probability) that the Veteran’s anal condyloma originated during the Veteran’s active duty military service since there is evidence that the Veteran’s symptoms first arose in 2006 and was treated for condyloma in 2011. The examiner then states that it is 100 percent likely that the Veteran’s ED, bilateral lower extremity radiculopathy, and the functional infection of the great right toe originated during the Veteran’s active duty military service due to the Veteran’s STRs. The examiner also stated that he reviewed the Veteran’s STRs. The Board finds these opinions to be extremely probative. Given that the August 2015 medical opinions are corroborated by the record during the Veteran’s military service, the Board finds that service connection for anal condyloma, ED, bilateral lower extremity radiculopathy, and fungal infection for the great right toe is warranted. 3. Entitlement to service connection for bilateral plantar fasciitis (also known as pes planus) Every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. The term “noted,” in 38 U.S.C. § 1111, refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304 (b). 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; 38 C.F.R. § 3.306 (a). Where the pre-service disability underwent an increase in severity during service, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306 (b). These provisions apply to only one situation: where the induction examination notes a preexisting condition that is alleged to have been aggravated. Horn v. Shinseki, 25 Vet. App. 231, 238 (2012) (quoting Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (“[I]f a preexisting disorder is noted upon entry into service... the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation.”). The Veteran claims that his pre-existing bilateral pes planus was aggravated during his military service. His STRs include a June 1992 entrance examination that documented moderate pes planus, asymptomatic. A June 2013 treatment note reported that the Veteran had plantar fasciitis and that he was provided a foot arch support. He had complained of recent heel pain which was greatest when walking or running. Then in September 2013, the Veteran was seen for a follow up reporting that the Veteran had been using orthotics and a night splint which helped the Veteran. He still had light pain to palpation of the medial tubercle of the right heel and no pain on examination of the left heel. Another September 2013 medical note reported that plantar fasciitis was one of the problems the Veteran suffered from. The October 2013 separation examination also noted that the Veteran suffered from plantar fasciitis. In the June 2014 VA examination, the examiner reported that the Veteran currently had bilateral pes planus. The examiner reported that the Veteran was given inserts for his shoes and orthotics to use at night. The July 2014 VA addendum opinion opined that it was less likely tan not that the Veteran’s pes planus was permanently aggravated beyond its natural progression by military service since the Veteran was found to have moderate pes planus on enlistment and in the May 2014 VA examination he only had moderate pes planus. The examiner simply stated that there was no indication of any aggravation of the Veteran’s pes planus during military service. Since separating from service, the Veteran has consistently been treated for his bilateral pes planus. In the July 2020 Board hearing the Veteran reported that he experienced pes planus during service and that he received treatment for it. Here, the evidence shows that the Veteran’s bilateral pes planus was noted on his June 1992 enlistment examination report. Thus, bilateral pes planus pre-existed the Veteran’s active duty service. 38 C.F.R. § 3.304 (b). Therefore, he is not presumed to have been in sound condition at the time of entry into service. See 38 U.S.C. § 1111. The relevant inquiry now becomes whether his bilateral pes planus increased in severity during his active service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). In this case, there is one medical opinion that addresses this issue, medical evidence during service, and the Veteran’s lay statements made during the Board hearing. The Board finds that the July 2014 VA medical opinion was insufficient since it did not provide a thorough rationale as to why the Veteran’s pes planus did not aggravate during service. It merely claimed that there was no evidence of aggravation during service. The examiner did not note the various treatment reports regarding the Veteran’s bilateral pes planus during service nor did he mention that the Veteran was afforded orthotics and foot arch supports throughout service. Moreover, the Board finds that post-service treatment records were noted within a year of separation and has been continuous since service weighs in favor of the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The post-service evidence of continuous treatment supports the implication that the disorder worsened from the asymptomatic presentation in the beginning of service to receiving treatment during service and to receiving continuous treatment since service. For the foregoing reasons, including the Veteran’s STRs that documents multiple complaints and treatment of painful feet, the Veteran’s lay statements made during the Board hearing, and the continuation of treatment post-service, the evidence establishes that it is at least in equipoise that the Veteran’s pre-existing pes planus increased in disability during service. REASONS FOR REMAND 1. Entitlement to service connection for anal fissure is remanded. 2. Entitlement to service connection for oral squamous papilloma is remanded. The Veteran contends that his anal fissure and oral squamous papilloma originated in service. STRs show that the Veteran had chronic intermittent anal fissures and that he had developed an oral squamous papilloma. In a July 2013 treatment report, the examiner reported that the Veteran noticed he had an anal condyloma in December 2011 and that he had it surgically removed in June 2012. The examiner indicated that it had resolved, but that about a year later he noticed a lump near his anus. The examiner noted that the Veteran has a history of chronic, intermittent anal fissure that has never required any formal treatment other than use of stool softeners. In an August 2012 treatment report the Veteran was diagnosed with squamous papilloma on the tip of his tongue and that he has had a three-week history of a slowly growing non-painful white lesion on the tip of his tongue. There is only one mention of each disorder in post-service treatment records. In the May 2014 General Medical Separation Health Assessment, it noted that the Veteran was diagnosed with oral squamous papilloma, but that it was resolved, and there were no residuals. It also mentioned that the Veteran was diagnosed with anal fissure, but that it resolved without any residuals. When reporting medical history, the examiner explained that the Veteran had a wart on his tongue which was removed in 2012 and that there was no recurrence nor any residuals. The examiner also noted that the Veteran had anal fissure recurring every six to eight weeks, but that there was no fissure at that time. After this examination, there was only mentions of having anal fissure in the past, but that there were no anal fissures that occurred post-separation. As such, there is no medical evidence of a diagnosis for either anal fissure or oral squamous papilloma. During the July 2020 Board hearing, the Veteran mentioned that the physician who submitted medical opinions in August 2015 had evaluated all the disorders, including anal fissure and oral squamous papilloma. However, there is no record that the physician opined on them or that he has diagnosed the Veteran with either of those disorders post-service. Additionally, during the hearing, the Veteran testified that he currently has anal fissures and oral squamous papilloma. The Board has a duty to assist to obtain all records relevant to appeal. In this case, if there are medical records pertaining to both of these issues, then it is paramount that reasonable efforts are made to obtain these potential records. As such, the issues for entitlement to service connection for anal fissure and oral squamous papilloma must be remanded for further development. Moreover, because the Veteran has raised the fact that he currently has both disorders and VA has previously determined that the Veteran did not have a current disability for either of these issues, this appeal must be remanded to obtain VA examinations to clarify whether or not the Veteran has a current disability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Catherine F. Decker, any other records from Walter Reed National Military Medical Center, any other VA treatment records, any other records from NYU Langone Health, and any other relevant records pertaining to the Veteran’s anal fissures and oral squamous papilloma. 2. After all requested records have been associated with the claims folder, schedule the Veteran for a VA examination for his anal fissure and oral squamous papilloma. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a. Did anal fissures at least as likely as not (50 percent or higher) originate in service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms, including the indication that the Veteran’s anal fissures recurred multiple times during service. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? b. Did oral squamous papilloma at least as likely as not (50 percent or higher) originate in service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.