Citation Nr: 21001998 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-40 384 DATE: January 12, 2021 ORDER New and material evidence having been submitted, the previously denied and final claim of service connection of a right shoulder disability is reopened. Entitlement to service connection of arthritis of the right foot is denied. Entitlement to service connection of arthritis of the left foot is denied. Entitlement to service connection of right foot pes planus is denied. Entitlement to service connection of left foot pes planus is denied. REMANDED Entitlement to a rating in excess of 10 percent for degenerative disc and joint disease of the lumbar spine is remanded. Entitlement to service connection of a right shoulder disability is remanded. FINDINGS OF FACT 1. In September 2020, the Veteran testified before the undersigned Veterans Law Judge regarding ongoing symptomatology of his right shoulder pain. 2. The Veteran does not have arthritis of either foot. 3. The Veteran’s bilateral pes planus clearly and unmistakably preexisted active duty service; it did not undergo any increase in severity throughout active service. CONCLUSIONS OF LAW 1. New and material evidence having been received; the claim of service connection of a right shoulder disability is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The criteria for service connection for right foot arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left foot arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right foot pes planus are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 5. The criteria for service connection for left foot pes planus are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1986 to September 1994; from February 2003 to June 2003; from July 2006 to August 2006; from July 2008 to October 2008; from September 2009 to July 2010, and from January 2013 to April 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January and August 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified before the undersigned Veterans Law Judge at a hearing held via videoconference. A transcript of that hearing is of record. New and Material Evidence If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In general terms, “new” evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. “Material” evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156 (a). New and material evidence need not prove a claim, but merely address a previously deficient criteria of service connection. 1. Whether new and material evidence has been submitted to reopen a previously denied and final claim of service connection of a right shoulder disability The Veteran’s claim of service connection of a shoulder strain was initially denied in a November 2011 rating decision. He did not appeal that claim and it became final. Although the RO has de facto reopened the claim, the Board must still consider whether new and material evidence has been submitted to reopen the claim prior to adjudication. In his September 2020 hearing before the undersigned, the Veteran testified to continuity and severity of symptoms affecting his right shoulder. This evidence is new in that it was not of record at the time of his prior denial. It is material in that it addresses previously deficient criteria of service connection. As such, the Board finds that the claim is reopened. To this limited extent, the appeal is granted. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 2. Entitlement to service connection of arthritis of the right foot 3. Entitlement to service connection of arthritis of the left foot The Veteran seeks service connection of bilateral foot arthritis. The Board finds that the claims should be denied. With regard to the Veteran’s claim of arthritis, arthritis is a very specific diagnosis which must be made by a medical professional, and usually requires diagnostic imaging to identify. The Veteran was afforded a VA examination in November 2016. At that time, the examiner reviewed the complete claims file, to include the Veteran’s detailed medical history and the Veteran’s own reports of symptoms. A thorough physical examination was accomplished, to include diagnostic imaging (X-rays). The imaging failed to identify any arthritis in either the right or left foot, and no such diagnosis was made. The Board has also reviewed the remaining medical evidence and treatment records on file and finds no evidence of any diagnosis of arthritis of the feet. Rather, the Veteran’s foot symptoms, primarily described as stiffness of the feet, improved with walking, have been generally attributed to his bilateral pes planus diagnosis, which is addressed below. To the extent that the Veteran believes he has arthritis in his feet, the Board acknowledges that stiffness and pain are certainly symptoms which may be attributed to arthritis. However, while lay evidence of symptomatology may be competent on a variety of matters concerning the nature and cause of disability, certain diagnoses, such as arthritis, require medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (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). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make medical diagnosis of arthritis, especially in light of the VA examiner’s conclusions to the contrary and the fact that the evidence fails to demonstrate any such diagnosis. See id. In light of the above, the Board will deny service connection of arthritis of the bilateral feet. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 4. Entitlement to service connection of right foot pes planus 5. Entitlement to service connection of left foot pes planus The Veteran seeks service connection of bilateral pes planus. The Board finds that the claim should be denied. These claims are not brought based on direct service connection. Rather, the Board notes that the Veteran’s entrance examination in 1986 documented bilateral pes planus as a preexisting condition upon induction. Therefore, service connection cannot be granted based on an in-service incurrence, as the condition clearly and unmistakably preexisted service. Service connection may be granted for a condition which clearly and unmistakably preexisted service, where there is a finding that the disability increased during service, and that increase was not due to the natural progression of the disease. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304 (b), 3.306(a). In the present matter, the Veteran was found to have pes planus upon entrance to service, so it clearly and unmistakably preexisted service. His service treatment records document some mild issues with his feet throughout service. For example, in between January and March 2010, his foot pain was attributed to “mild pes planus.” In October 2016, he was noted to have a mild bilateral pes planus deformity with no other acute abnormality of the feet. In December 2016, a VA examiner went so far as to decline to diagnose pes planus owing to such a minimal level of pathology, noting only stiffness in the feet, and that the Veteran was able to walk about five miles per day, which the Veteran thought beneficial to his condition. He was also able to go to the gym, bike, and lift heavy weights. Based on the evidence of record, the Board concludes that there is no evidence that the Veteran’s bilateral pes planus underwent any type of worsening throughout active service. Rather, his condition is and always has been mild in nature with no severe, or even moderate symptoms. In light of this, the Board must conclude that the Veteran’s bilateral pes planus, which clearly and unmistakably preexisted active service, did not undergo any increase in severity, particularly any increase that was directly related to any incident of active service and beyond a natural progression of the disability. In making this determination, the Board notes that an opinion on worsening has not been obtained in this matter. However, absent some evidence of actual worsening of the condition by active service, the Board must conclude that VA’s duty to assist in providing such an opinion has not been triggered. 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further acknowledges the Veteran’s own firmly held belief that his pes planus is related to active service. In this regard, the Board notes that the Veteran is a lay person, and not competent to provide an opinion on aggravation of his condition, particularly in light of the fact that the medical evidence of record, to include the Veteran’s own lay statements regarding severity of his symptoms, fail to document any actual worsening throughout active service. See Jandreau, supra. In sum, the Board finds that the Veteran’s bilateral pes planus, which clearly and unmistakably preexisted active service, did not undergo any worsening which may be attributed to active service. As such, the claims must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for degenerative disc and joint disease of the lumbar spine is remanded. In his hearing before the undersigned, the Veteran testified to worsening symptoms in his lower back since the time of his most recent examination, which took place in 2016. Specifically, the Veteran testified to increased loss of motion, stiffness, spasms, and the regular need for a back brace. Because the Veteran has indicated that his low back disability has worsened, the Board will remand this appeal so that a new examination may be conducted which fully assesses the present severity of the Veteran’s low back condition.   2. Entitlement to service connection of a right shoulder disability The Veteran seeks service connection of a right shoulder disability. The Board finds that the claim should be remanded so that an examination may be conducted. Specifically, the Veteran asserts pain and stiffness in his right shoulder which results in loss of range of motion. The Veteran was not afforded a VA examination in connection with his reopened claim, however, an examination was conducted in 2011, prior to the adjudication of his original claim of service connection of a right shoulder disability. That examination identified a recurrent shoulder strain with some limitation of motion. There is also some evidence of shoulder pain in the Veteran’s service treatment records between 1993 and 1994. Despite this, no etiology opinion has been rendered in this matter. In light of this, the Board will remand this claim so that a new VA examination may be conducted, and a medical opinion obtained. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any new evidence in support of his claim. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for a VA examination for his shoulder disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s shoulder condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the present shoulder disability at least as likely as not related to service, including his multiple reports of shoulder pain in service. In providing the requested opinion, consider the Veteran’s description of his in-service 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 symptoms in service and thereafter represented the onset of his current shoulder 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.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel