Citation Nr: 21061619 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 08-24 266 01DATE: October 4, 2021 ORDER Service connection for bilateral shoulder strain (claimed as chronic joint pain) is granted. Service connection for a bilateral knee disability, to include bilateral knee strain with right knee osteoarthritis (claimed as chronic joint pain), is granted. Service connection for a bilateral elbow disability, to include bilateral elbow strain with left elbow tendonitis (claimed as chronic joint pain), is granted. Service connection for bilateral hand strain (claimed as chronic joint pain) is granted. Service connection for a bilateral foot disability, to include bilateral plantar fascitis with left foot calcaneal spurs (claimed as fallen arches in the feet), is granted. FINDINGS OF FACT 1. The Veteran has current disabilities of bilateral shoulder strain, bilateral knee strain with right knee osteoarthritis, bilateral shoulder strain with left elbow tendonitis, bilateral hand strain, and bilateral plantar fasciitis with left foot calcaneal spurs. 2. The Veteran was involved in a motor vehicle accident in 1990 during service. 3. Symptoms of a bilateral hand strain, bilateral knee strain with right knee osteoarthritis, bilateral elbow strain with left elbow tendonitis, and bilateral shoulder strain began during service and have been present since service. 4. Symptoms of a bilateral foot disability began during service and have been present since service separation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral shoulder strain have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a bilateral knee strain with right knee osteoarthritis have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for a bilateral elbow strain with elbow tendonitis have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hand strain have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a bilateral plantar fasciitis with left foot calcaneal spurs have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from August 1988 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for chronic joint pain and a bilateral foot disorder. During the course of the appeal, the RO granted service connection for right foot calcaneal spurs, but otherwise continued the denial of service connection for bilateral plantar fasciitis. This case was previously before the Board in June 2012, September 2014, January 2016, February 2018, and November 2019. In November 2019, the issues on appeal were remanded to obtain an addendum medical opinion from a VA examiner. While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the Board grants service connection for the bilateral shoulder, bilateral knee, bilateral elbow, and bilateral hand disabilities (claimed as chronic joint pain), and for bilateral foot disabilities, which is a total grant of benefits as to the issue on appeal, the Board need not address remand compliance. Service Connection Legal Authority Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. The Veteran is currently diagnosed with osteoarthritis of the right knee, which is considered a "arthritis" recognized as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for a right knee disability. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is also currently diagnosed with bilateral shoulder strain, bilateral knee strain, bilateral elbow strain with left elbow tendonitis, bilateral hand strain, and bilateral plantar fasciitis with left calcaneal spur, which are not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply as to these issues. 1. Service Connection for Bilateral Shoulder Strain 2. Service Connection for a Bilateral Knee Disability 3. Service Connection for a Bilateral Elbow Disability 4. Service Connection for Bilateral Hand Strain The Veteran contends that service connection for chronic joint pain is warranted as directly related to service or due to service in the Persian Gulf War. Specifically, the Veteran asserts that he has had problems with chronic pain in both shoulders, hands, elbows, and knees since 1991, and that symptoms of these chronic joint pains have continued since service separation. See May 2007, March 2016, December 2020 VA examination reports. The evidence shows current disabilities of bilateral shoulder strain, bilateral knee strain with right knee osteoarthritis, bilateral elbow strain with left elbow tendonitis, and bilateral hand strain. See December 2015, April 2016 private treatment records; May 2016, December 2020 VA examination reports. The Veteran sustained an in-service injury due to a motor vehicle accident. A June 2000 treatment note shows contemporaneous lay reports for the purpose of treatment, of chronic joint pains in the elbows, shoulders, and knees and a pertinent history of involvement in a motor vehicle accident during which he was rear-ended 10 years prior, so in 1990 during service. See June 2000 private treatment record. The Board has resolved reasonable doubt in the Veteran's favor in finding that the Veteran was involved in motor vehicle accident during service. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was an onset of symptoms of a chronic joint pains, to include bilateral shoulder, knee, elbow, and hand pain, in service that continued after service separation, and were later diagnosed as bilateral shoulder strain, bilateral knee strain with right knee osteoarthritis, bilateral elbow strain with left elbow tendonitis, and bilateral hand strain. Based on this finding of injury during service, with onset of symptoms during service that continued after service and were later diagnosed, the Board finds that the later diagnosed disabilities of the shoulders, knees, elbows, and hands were directly "incurred in" service. 38 C.F.R. §§ 3.303(a),(d). The Veteran has provided credible lay reports, for the purpose of treatment, of a history of motor vehicle accident in approximately 1990 and of chronic joint pains in both hands, shoulders, elbows, and knees that continued over the years since service separation. Service treatment records show reports of joint pains in November 1990, particularly in the right shoulder, which was diagnosed as muscle strain. Post-service treatment records also show treatment for various joint complaints since service separation, including bilateral shoulder pain, which was initially diagnosed as tendonitis and bursitis in the 1990s, elbow tendonitis, chronic bilateral knee pain with right knee osteoarthritis, and hand pain. See May 1998, October 1998, June 2000, December 2015, April 2016 private treatment records. During the 2016 VA examination, the Veteran continued to endorse chronic joint pains, primarily in the hands, shoulders, elbows, and knees that began during service in 1991 and has been present since service separation. The VA examiner diagnosed bilateral hand strain, bilateral shoulder strain, bilateral knee strain, and bilateral elbow strain. The VA examiners in March 2016 and December 2020 opined that the bilateral shoulder, hand, elbow, and knee disabilities were not related to service, to include exposure to environmental hazards during service; however, these opinions were based on the inaccurate factual assumption that the Veteran had not experienced any serious injury during service and that there were no chronic symptoms, including symptoms since service separations. As the Board has found in this case that the Veteran in fact was injured during a motor vehicle accident during service, factual assumption of no in-service injury or continued symptoms in and since service is not an accurate fact. As the opinions did not adequately consider the history of motor vehicle accident during service or the history of chronic or continuous joint pains that have been present since service separation, to include treatment for various joint pains in the respective joints over the years, the opinion is based on an inaccurate factual assumption, so is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis, but cannot reject the opinion solely because the history was from the veteran). The VA examiner in December 2020 was under the assumption that the only condition diagnosed since the 2006 claim was the bilateral shoulder strain, which the March 2016 examiner diagnosed. This factual assumption is inaccurate because it does not recognize the other diagnoses of record since the 2006 claim, including the bilateral hand strain, bilateral elbow strain with left elbow tendonitis, and bilateral knee strain with right knee osteoarthritis, as diagnosed in the record by the March 2016 VA examiner and private medical providers. The VA examiner in May 2007 also diagnosed chronic diffuse joint pains that have been present since 1991 during service. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (holding that pain can qualify as a disability where there is evidence of functional impairment of earning capacity). While the bilateral shoulder strain, bilateral elbow strain with tendonitis, bilateral knee strain, and bilateral hand strain are not chronic diseases listed under 38 C.F.R. § 3.309(a), the Board finds the evidence at least in equipoise on the question of whether the Veteran had bilateral shoulder, bilateral elbow, bilateral knee, and bilateral hand symptoms that began during service and continued since service separation until later diagnosed. The symptoms that began during service and continued after service resulted in later diagnoses of bilateral shoulder strain, bilateral elbow strain with left elbow tendonitis, bilateral knee strain with right knee osteoarthritis, and bilateral hand strain. Such symptoms that began during service and later resulted in diagnoses tends to show direct service incurrence. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a),(d). The Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that symptoms of a bilateral shoulder, bilateral elbow, bilateral knee, and bilateral hand conditions (later diagnosed as strains, tendonitis, and arthritis of the respective joints) began in service, so was "incurred in" service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for bilateral shoulder strain, bilateral elbow strain with left elbow tendonitis, bilateral knee strain with right knee osteoarthritis, and bilateral hand strain have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Service Connection for a Bilateral Foot Disability The Veteran contends that service connection for a bilateral foot disability is warranted as directly due to service or due to Persian Gulf War service. The Veteran asserts that his bilateral foot pain began in 1991, during service, and has been present since service separation. Initially, the Board finds that the Veteran has a current diagnosis of a bilateral plantar fasciitis with left foot calcaneal spurs. See March 2016 VA treatment record, December 2020 VA examination report. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was an onset of symptoms of a bilateral foot disorder in service that continued after service separation, and were later diagnosed as bilateral plantar fasciitis with left calcaneal spurs, i.e., whether plantar fasciitis and calcaneal spurs was directly "incurred in" service. The Veteran has provided credible lay reports of an onset of bilateral foot pain in 1991, during service, that has been present since service separation from service. See March 2016, December 2020 VA examination reports. Post-service treatment records show that the Veteran sought treatment for pain in the feet first thing in the mornings that progressed throughout the workday in 1992, within one year of service separation. The condition was managed with prescribed orthotics. The Veteran continued to seek treatment for pain in the plantar fascia region over the years, which has been diagnosed as fasciitis in both feet in 1996 and 1999, as well as calcaneal spurs in 1999. See July 1992, September 1996, April 1999, December 2015 private treatment records. The VA examiner in December 2020 diagnosed right calcaneal spur per March 2016 x-ray and opined that it was at least as likely as not that the Veteran's calcaneal spurs were caused by service. The VA examiner reasoned that heel spurs occur when calcium deposits build up on the underside of the heel bone, and are often caused by strains on foot muscles and ligaments, stretching of the plantar fascia, and repeated tearing of the membrane that covers the heel bone. In this case, as March 2016 imaging of the feet showed calcaneal spurs in the right and the left foot, and service connection for right calcaneal spurs was granted based on the positive nexus opinion in December 2020, the evidence, to include the December 2020 VA opinion, supports a nexus between the left foot calcaneal spurs and active service. The same VA examiner in December 2020 assessed no nexus between the bilateral plantar fasciitis and active service, reasoning that the plantar fasciitis is likely due to excessive usage, but that usage cannot be connected to service with available medical records. This purported opinion is of no probative value because the examiner inaccurately assumes as a fact that there was no bilateral foot pain that began in 1991 during service, and that there was no continued bilateral foot pain since service separation. Such factual assumption is contrary to the Board's findings of fact in this case, based on lay and medical evidence showing bilateral foot symptoms and treatment for painful plantar fascia, including in 1992, within one year of service separation. This reasoning also incompatible with the same VA examiner's positive nexus opinion for calcaneal spurs, wherein the examiner opined that the calcaneal spurs are caused, in part, due to stretching of the plantar fascia, recognizing evidence that shows symptoms of pain in the plantar fascia region and diagnosis of plantar fasciitis in both feet prior to diagnosis of the calcaneal spurs. (Continued on the next page) While calcaneal spurs and plantar fasciitis are not a chronic disease listed under 38 C.F.R. § 3.309(a), the Board has nonetheless found the evidence at least in equipoise on the question of whether the Veteran had bilateral foot symptoms that began during service and continued since service separation, which symptoms were later diagnosed as calcaneal spurs and plantar fasciitis, thus tending to show direct service incurrence. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). The Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that symptoms of bilateral foot pain (later diagnosed as bilateral plantar fasciitis with left calcaneal spurs) began in service, so were "incurred in" service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for a bilateral plantar fasciitis with left calcaneal spur have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.