Citation Nr: 21004561 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-01 094 DATE: January 27, 2021 ORDER Entitlement to service connection for right knee chondromalacia is granted. Entitlement to service connection for left knee chondromalacia is granted. Entitlement to service connection for inguina hernia is denied. Entitlement to service connection for bilateral pes planus is granted. REMANDED Entitlement to service connection for a back disability, to include central annular tear at L5-S1 and degenerative arthritis, (claimed as low back condition) is remanded. Entitlement to service connection for bilateral hallux valgus is remanded. Entitlement to service connection for bilateral pinch callus formation is remanded. Entitlement to an initial rating in excess of 0 percent for right ear hearing loss is remanded. FINDINGS OF FACT 1. Right knee chondromalacia was diagnosed in service and the Veteran currently has right knee chondromalacia. 2. Left knee chondromalacia was diagnosed in service and the Veteran currently has left knee chondromalacia. 3. The evidence does not show a current diagnosis of inguina hernia. 4. Bilateral pes planus was noted at service entry. 5. Resolving the evidence in favor of the Veteran, the Veteran’s preexisting bilateral pes planus permanently increased in severity during service. CONCLUSIONS OF LAW 1. The criteria for bilateral knee chondromalacia have been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.156 (c), 3.303, 3.306. 2. The criteria for service connection for inguina hernia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service aggravation for bilateral pes planus have been met. 38 U.S.C. §§ 1101, 1110, 1113, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1974 to January 1976. The matter is on appeal from an August 2011 rating decision. The claims were remanded by the Board of Veterans’ Appeals (Board) in September 2019. The Board notes that a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009). Therefore, even though the Veteran has appealed a claim for service connection for low back pain, based on the medical evidence of record, the Board has recharacterized this claim as a claim for service connection for a back disability, to include central annular tear at L5-S1 and degenerative arthritis, to account for all pertinent symptomatology. This recharacterization of the claim is reflected on the title page of this decision. Service Connection Establishing service connection generally 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 link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Chronic diseases shown in service with subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. & 2. The claims for entitlement to service connection for right and left knee chondromalacia are granted. For the following reasons, the claims for entitlement to service connection for right and left knee chondromalacia are granted. Here, the Board finds that the Veteran has a current diagnosis of bilateral patellofemoral pain syndrome. See December 2019 Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). Moreover, an August 2010 private medical treatment record shows a diagnosis of chondromalacia of the patella. See August 2010 private medical treatment record. Next, the Veteran's active duty service treatment records include a May 1975 record, which shows an in-service diagnosis of bilateral chondromalacia of the patella. See May 1975 Service Treatment Record; October 1975 Service Treatment Record. Given such, the Board finds that the second prong of service connection is satisfied. The remaining question is whether the Veteran's current bilateral patellofemoral pain syndrome is related to his in-service diagnosis of bilateral chondromalacia of the patella. The Board finds that the evidence supports such a conclusion. The Veteran has asserted that he has had knee pain in and since service. As stated above, a May 1975 service treatment record shows an in-service diagnosis of bilateral chondromalacia of the patella. Moreover, the current medical evidence shows the same diagnosis. See August 2010 private medical treatment record (showing diagnosis of chondromalacia of the patella). Furthermore, in a November 2019 VA Joints Examination report, the examiner stated that chondromalacia patella (the Veteran’s stated in-service diagnosis) is now termed “patellofemoral pain syndrome,” which the December 2019 Knee and Lower Leg Conditions DBQ states the Veteran currently has. See December 2019 Knee and Lower Leg Conditions DBQ (diagnosis of bilateral patellofemoral pain syndrome). The Board finds that the Veteran’s in service diagnosis of chondromalacia was a chronic condition with the same manifestations continuing after service to his post-service diagnosis of the same condition. Thus, under 38 C.F.R. § 3.303(b), the Board finds that a connection between the two is established. Based on the foregoing, the Board finds that the criteria for service connection for right and left knee chondromalacia have been met. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 3. Entitlement to service connection for inguina hernia is denied. The Veteran seeks entitlement to service connection for inguina hernia. However, the Veteran’s June 2012 VA Stomach and Duodenal Conditions DBQ shows the Veteran does not have now or has ever had any stomach or duodenum conditions, including inguina hernia. See June 2012 VA Stomach and Duodenal Conditions DBQ. Furthermore, a review of the available VA treatment records revealed no treatment, complaints or symptoms of inguina hernia. Additionally, the Veteran, who is competent to report on his symptomatology, has not asserted that he has any symptoms that could be related to inguina hernia. Instead, with respect to this claim, the Veteran only indicated that he had mild epigastric tenderness during service. See June 2013 Veteran’s Statement. He has not asserted having any current condition presumably associated with the in-service epigastric tenderness. Without a current disability, the Veteran's claim must be denied as a matter of law. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that there can be no valid claim for service connection "[i]n the absence of proof of a present disability"). In reaching the conclusion stated above, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claims. 38 U.S.C. § 5170 (b); 38 C.F.R. § 3.102 (2016); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 4. Entitlement to service connection for bilateral pes planus is granted. The Veteran has asserted that his current diagnosis of bilateral pes planus, which was also preexisting, as it is noted on his service entrance examination, was permanently aggravated during service. See June 2012 VA Flatfoot Disability Benefits Questionnaire. Following review of the record, and resolving reasonable doubt in his favor, the Board finds that service connection for bilateral pes planus is warranted based on in-service aggravation. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Turning to the relevant evidence, the Veteran asserted that his preexisting bilateral pes planus worsened beyond the natural progression of the disease during service when he fell from a truck while in service, landing on his feet, and that he has had pain in the feet since then. See June 2012 VA Flatfoot Disability Benefits Questionnaire. The Veteran’s September 1974 induction examination shows that at the point of entrance into service, the Veteran’s pes planus was “mild.” See September 1974 induction examination. Then a subsequent in-service treatment record shows that he sought treatment for his foot pain in October, and upon examination, a month into service, his pes planus worsened to a severity level of “moderate.” See October 1974 service treatment record. The Board finds that the foregoing evidence, coupled with the Veteran's competent and credible assertion that the symptoms of his bilateral pes planus permanently worsened during service, warrants resolving reasonable doubt in his favor and finding that his pre-existing pes planus increased in disability during service, i.e., from “mild” to “moderate.” See Falzone v. Brown, 8 Vet. App. 398, 403 (2005) (holding that pes planus is the type of condition that lends itself to lay observation). Consequently, the presumption of aggravation that arises in that situation has not been rebutted. The Board acknowledges that a June 2012 VA Flatfoot Disability Benefits Questionnaire shows that a June 2012 VA examiner opined that the Veteran’s bilateral pes planus was not aggravated by service. However, the Board finds this opinion inadequate. The stated reason for this opinion was: “There is no objective evidence per review of records of any aggravation of the pes planus beyond the normal progression of the condition. No objective evidence of trauma to the feet while in service.” The examiner failed to consider and address the Veteran’s lay statements regarding his in-service fall and the October 1974 service treatment record that shows the Veteran’s pes planus was “moderate.” In any event, the Board finds that the unfavorable conclusion reached by June 2012 VA examiner does not constitute clear and unmistakable evidence that rebuts the presumption of aggravation. See 38 C.F.R. § 3.306(b). Accordingly, the Veteran has a current diagnosis of pes planus and in service aggravation of his pes planus. As to a nexus, the Board finds that the Veteran’s in service diagnosis of pes planus was a chronic condition with the same manifestations continuing after service to his post-service diagnosis of the same condition. Thus, under 38 C.F.R. § 3.303(b), the Board finds that a connection between the two is established. Thus, service connection for bilateral pes planus is warranted, and the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a back disability, to include central annular tear at L5-S1 and degenerative arthritis, (claimed as low back condition) is remanded. The Veteran underwent a VA Back Conditions Disability Benefits Questionnaire in June 2012. The June 2012 VA examiner opined that the Veteran’s low back condition is less likely as not incurred or caused by active service. The stated rationale is: “There is no objective evidence of a chronic low back problem while in service, no evidence of trauma to the lumbar spine severe enough that could have caused the current low back condition. The low back diagnosis in service was low back strain – this is usually a self-limited temporary condition which resolves without sequelae – there is no objective evidence to indicate otherwise for this veteran. The Veteran did not complain of any low back problem from 1976 to 2000, when he complained of low back pain which he attributed to a [motor vehicle accident] in 1998, over 20 years post service.” Upon review, the Board finds that a new opinion must be obtained for the back disability. First, while the examiner considered the Veteran’s complaints of low back pain he attributes to a 1998 motor vehicle accident, he failed to explicitly consider the Veteran’s other consistent complaints, that the Veteran has had low back pain ever since active duty service – to which the Veteran is competent to attest even if there are no supporting contemporaneous medical records. See also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, the examiner confirmed and opined on only one back disability diagnosis, which is the central annular tear at L5-S1, when now, the Veteran’s more current medical records show that he also has a diagnosis of mild degenerative arthritis in the back. See, e.g., September 2018 VA x-ray (Minimal degenerative changes of the lumbar spine without evidence of acute bony abnormality). Therefore, the claim must be remanded for a new etiology opinion addressing the foregoing concerns. 2. Entitlement to service connection for bilateral hallux valgus is remanded. A VA etiology opinion was obtained in June 2012. See June 2012 VA Flatfoot Disability Benefits Questionnaire. The VA examiner opined that the Veteran’s hallux valgus is not incurred or caused by service. The stated rationale is: “There is no objective evidence of hallux valgus during service or not known. Most commonly, hallux valgus is thought to be caused by wear and tear on the first MTP joint.” The Board finds this opinion inadequate as it fails to consider the Veteran’s lay statements that that he fell from a truck while in service, landing on his feet, and has had pain in his feet since then. See id. The Veteran is competent to attest to his pain symptomatology, and its duration, as they come through his own senses. Therefore, the examiner should have explicitly addressed and considered these statements in his opinion. Moreover, the examiner should have opined on whether the Veteran’s hallux valgus had its onset in (first became symptomatic in) service despite not having a formal in-service diagnosis. Therefore, the claim must be remanded for a new opinion. 3. Entitlement to service connection for bilateral pinch callus formation is remanded. A VA etiology opinion was obtained for the Veteran’s bilateral pinch callus formation along the sides of the great toes. See June 2012 VA Skin Disease Disability Benefits Questionnaire. The VA examiner opined that the Veteran’s bilateral pinch callus is less likely as not caused or incurred during service. The stated rationale was that there was no objective evidence of pinch callus during service. The examiner also wrote: “The records show he was issued ‘pads for callouses’ 10/74 which indicates that he had these calluses existing prior to service. The exact location of the calluses was not indicated. There is no objective evidence of aggravation of pre-existing calluses during his active duty time.” The Board finds this opinion inadequate. First, the examiner failed to opine on whether the Veteran’s bilateral pinch callus formation had its onset in (first became symptomatic in) service despite not having an in-service diagnosis. Moreover, bilateral pinch callus formation was not noted at the Veteran’s September 1974 entrance examination. Thus, the Board would not consider any bilateral pinch callus formation “noted” in the context of the presumption of soundness. Here, however, the June 2012 VA examiner stated that the Veteran’s calluses pre-existed the Veteran’s active duty time. In cases such as this, where the presumption of soundness has initially attached, the burden shifts to the Secretary to show by clear and unmistakable evidence that: “(1) a disease or injury existed prior to service; and (2) the disease or injury was not aggravated by service.” Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). The second prong of the presumption of soundness is rebutted if there is clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. at 397. As such, the Board finds that new opinions addressing the foregoing concerns must be obtained. 4. Entitlement to an initial rating in excess of 0 percent for right ear hearing loss is remanded. The Veteran underwent two VA examinations to assess his hearing loss. First, the Veteran was provided with a VA audiological examination in January 2011. The examiner stated that Type A tympanograms were obtained bilaterally, consistent with pure-tones and middle ear system function within normal limits. Despite repeated attempts and reinstruction, the test results were not reliable and are not suitable for rating purposes in this examiner’s opinion, and are therefore not being reported. The test results were strongly suggestive of a non-organic hearing loss/hearing loss component. There was significant variability in his responses to spondees, with some responses to spondees as low as 25 dB, which is in poor agreement with the elevated thresholds obtained, some of the acoustic reflex threshold obtained were inconsistent with the elevated thresholds obtained, air and bone conduction thresholds were in poor agreement and the very poor speech recognition scores obtained were inconsistent with observed communication abilities (he responded well to questions and instructions and was able to converse easily at normal conversational levels). The Veteran then underwent another VA Hearing Loss and Tinnitus Disability Benefits Questionnaire in November 2015. The results of the audiological diagnostic test, as measured by puretone audiometry test, are: for the Veteran’s right ear: 25, 25, 20, 20, and 65 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. Based on these results, the average puretone threshold was 33 decibels for the right ear. See 38 C.F.R. § 4.85 (d). Speech discrimination score was not assessed. The examiner wrote that the use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition stores, etc., that make combined use of puretone average and word recognition scores inappropriate. The Board finds that the severity of the right ear hearing loss cannot be assessed with these examinations. Therefore, the claim must be remanded for an examination and to obtain an etiology opinion. The matters are REMANDED for the following action: 1. Obtain a new etiology opinion by an appropriate examiner as to the etiology of the back disability. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner. Following a review of the claims file, the reviewing examiner is requested to provide an opinion responding to the following question: For each and every current diagnosis of a back disability, to include central annular tear at L5-S1 and degenerative arthritis of the back, the examiner is instructed to opine whether it is at least as likely as not (50 percent or greater probability) that the disability is related to his active duty service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. The examiner is instructed to explicitly address and consider the Veteran’s lay statements that he fell from a truck while in service, landing on his feet, and has had pain in his feet since then. The examiner is further instructed that the Veteran’s lay statements regarding his pain symptomatology and its duration must be considered even if there are no supporting contemporaneous medical records. See also Dalton v. Nicholson, 21 Vet. App. 23 (2007). 2. Obtain a new etiology opinion by an appropriate examiner as to the etiology of the hallux valgus. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner. Following a review of the claims file, the reviewing examiner is requested to provide an opinion responding to the following question: The examiner is instructed to opine whether it is at least as likely as not (50 percent or greater probability) that the hallux valgus had its onset in service, or is otherwise related to service. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. The examiner is instructed to explicitly address and consider the Veteran’s lay statements that he fell from a truck while in service, landing on his feet, and has had pain in his feet since then. See June 2012 VA Flatfoot Disability Benefits Questionnaire. The examiner is further instructed that the Veteran’s lay statements regarding his pain symptomatology and its duration must be considered even if there are no supporting contemporaneous medical records. 3. Obtain a new etiology opinion by an appropriate examiner as to the etiology of the Veteran’s bilateral pinch callus formation. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner. (a) Did the Veteran’s bilateral pinch callus formation along the sides of the great toes clearly and unmistakably exist prior to the Veteran’s active service? (b) If the Veteran’s bilateral pinch callus formation along the sides of the great toes is found to have clearly and unmistakably existed prior to active service, is it also clear and unmistakable that such disability was NOT aggravated (permanently worsened beyond its natural progress) by active service? (c) If the Veteran’s bilateral pinch callus formation along the sides of the great toes did not clearly and unmistakably exist prior to military service, is it least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral pinch callus formation along the sides of the great toes had its onset during service, or is otherwise related to such service? The examiner is instructed to explicitly address and consider the Veteran’s lay statements that he fell from a truck while in service, landing on his feet, and has had pain in his feet since then. See June 2012 VA Flatfoot Disability Benefits Questionnaire. The examiner must also explicitly address and consider/reconcile opinion of the June 2012 VA Skin Disease Disability Benefits Questionnaire examiner, who opined that the “records showing the Veteran was issued ‘pads for callouses’ 10/74 indicates that he had these calluses existing prior to service. The exact location of the calluses was not indicated.” The examiner is advised that clear and unmistakable evidence is an onerous evidentiary standard and means that the evidence is undebatable. However, it does not require the absence of conflicting evidence. Vanerson v. West, 12 Vet. App. 254 (1999); Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). 4. Schedule the Veteran for a VA examination with a new examiner to assess the severity of the Veteran’s hearing loss. Moreover, to the extent possible, a retrospective opinion should be obtained as to the severity of hearing loss for the period from January 1976, in light of these relevant medical records. The retrospective opinion should be rendered by reviewing and considering the medical evidence and lay statements. If the examiner is unable to provide a retrospective opinion, he or she should clearly explain so in the report. 5. For all opinions, the RO should ensure that a rationale is provided, to include specific discussion of the medical principles involved and the relevant facts. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) Any opinion expressed by the VA examiner should be accompanied by a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. 6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. 7. After the above is completed, re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.