Citation Nr: 21061809 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 14-06 955 DATE: October 5, 2021 ORDER Service connection for poliomyelitis, to include any residuals, is denied. Service connection for a right foot disorder is denied. Service connection for a right hip disorder is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. It is clear and unmistakable that the Veteran's poliomyelitis, right foot disorder, and right hip disorder existed prior to service and were not aggravated beyond their normal progression during active service; the right foot disorders were not incurred in or are otherwise etiologically related to service, and did not onset within one year of military separation. 2. The Veteran is not currently service-connected for any disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for poliomyelitis, to include any residuals, have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. 2. The criteria for service connection for a right foot disorder have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. 3. The criteria for service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 20, 1972, to November 3, 1972. These appeals were most recently remanded by the Board in July 2020 for additional development. In part, the Board instructed that VA treatment records prior to March 2016 be obtained, as the Veteran complained of current right hip symptoms but a diagnosis was not of record. See also November 2017 Board decision (remanding for the same purpose). Although these treatment records were not subsequently obtained, the existing body of evidence now documents a right hip diagnosis. Accordingly, the Board does not find good cause to remand for this purpose yet again. Further, the remaining development requested in the July 2020 remand has been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection The Veteran primarily contends that his military service aggravated a preexisting polio condition and related right foot/hip symptoms, with residual disabilities that persist to this day. See, e.g., February 2014 VA Form 9; representative's briefs dated February 2016, September 2017, June 2020, and August 2021. As a threshold matter, there is competent evidence of current disabilities. See, e.g., VA examinations dated March 2012 (diagnosing post-polio syndrome); March 2016 (feet) (diagnosing pes planus, degenerative arthritis, and personal history of surgery, triple arthrodesis); March 2016 (central nervous system) (diagnosing encephalitis); March 2018 opinion (diagnosing right hip strain); May 2021 (diagnosing plantar fasciitis). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of soundness for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence that: (a) the disease or injury existed prior to service, and (b) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). On the first element, the record is in controversy as to the existence of a preexisting condition. A September 19, 1972, Report of Medical History notes that the Veteran underwent a polio-related right foot operation at the age of one, with no sequelae. On a corresponding Record of Medical Care, the Veteran was found to be physically qualified for enlistment. However, he soon complained of right lower extremity pain, diagnosed as post-polio residuals of the right lower extremity, with triple arthrodesis and residual foot pain. As per an undated Medical Board report, the Veteran's "condition existed prior to enlistment and [he] did not meet the minimal requirements for enlistment." It was recommended that the Veteran be separated from service; his DD Form 214 shows that the Veteran separated on November 3, 1972, for "erroneous enlistment (physical disability)," as established by the Medical Board. Given the discrepancies in the Veteran's entrance and exit evaluations, the question of whether a disease or injury preexisted service has been submitted to multiple VA examiners for consideration. In March 2016, a VA examiner concluded that the claimed conditions (specifically, polio and its residuals of the right foot and hip) clearly and unmistakably existed prior to service. In doing so, she noted that her opinion was derived from consideration of the Veteran's service treatment records (STRs), post-service medical records, and contemporaneous evaluation and interview: "It is clear from the [STRs] and also from talking with [the] Veteran that he DID NOT have onset of polio during his time in military service." Rather, he reported upon entry that he had polio as a young child, which resulted in multiple right foot surgeries. The examiner also provided a more general overview as to the epidemiology of polio, its known symptoms and treatment, and the nature of post-polio syndrome. When applied to the instant case, it was relevant that the Veteran only served for 44 days and did not show any condition during that time which could be construed as acute polio illness. Rather, upon his own entrance reporting and his medical records, his polio and its residuals were found to have preexisted service. A similar opinion was offered in June 2021, at which time a VA examiner agreed that the claimed conditions clearly and unmistakable existed prior to service. By way of rationale, the examiner recorded the Veteran's testimony that he had polio at the age of one but was not diagnosed until the age of five, following observation from a shoe salesman as to right foot abnormalities. The Veteran underwent two childhood right foot surgeries as a result. Thus, the evidence clearly and unmistakably establishes that the Veteran entered service with a preexisting polio condition and related residuals of the right foot and hip. On the second point, the evidence also clearly and unmistakably shows that the Veteran's preexisting conditions were not aggravated by his military service. Again, multiple opinions were solicited on this point. First, the March 2016 examiner determined that the Veteran's polio (and related residuals) were less likely as not permanently aggravated or the result of an in-service condition or event, and was instead permanently aggravated or the result of an early childhood episode. (Here, the Board acknowledges that the standard for "aggravation" in a claim of secondary service connection requires only an incremental increase in disability, as per Ward v. Wilkie, 31 Vet. App. 233 (2019); however, a permanent increase in severity is required to establish aggravation of a preexisting disability for the purposes of the presumption of aggravation under 38 U.S.C. § 1153, 38 C.F.R. § 3.306). By way of rationale, the examiner noted that the Veteran was only in service for 44 days, during which time he developed pain in his damaged right foot and leg due to the intensity and duration of basic training. An in-service physician then determined that, given the nature of the Veteran's preexisting condition, he was not likely able to continue strenuous training for prolonged periods of time, as required for active duty service. As such, the Veteran left active service and returned to civilian life. Although he had "some trouble" with pain in the right foot and leg following service, he was able to "function pretty normally for several years." In time, the right lower extremity pain worsened and the Veteran showed occupational impairment as a result thereof. However, the examiner determined that this deterioration was not due to the Veteran's 44 days in the military, but rather the nature of his past polio condition (or post-polio syndrome). When patients are young, they are able to compensate for the neurological cells that were damaged by the polio by overworking other areas; over time, fatigue accrues and weakness returns. The Veteran's own testimony reflects such a history, wherein he reports that the polio "stopped for 20 years, but then all of a sudden it got worse" around the age of 33, in 1988. Thus, the Veteran had mild polio during childhood with residual right foot weakness and corresponding surgeries. He tolerated basic military training for a few weeks but not longer, due to residual pain and weakness from his preexisting polio infection and residuals. Permanent aggravation was not caused by his 44 days in service. The examiner provided additional analysis in March 2018, at which time she acknowledged that "it is logical that boot camp physical rigors caused increased pain and difficulty with the damaged right foot . . . ." However, the Veteran only engaged in such activity for approximately four weeks. Such a brief performance period would not be expected to cause any additional lasting, long-term damage to the right foot. Rather, this extremity was already damaged and weakened by the childhood polio and resulting surgeries. Although such a medical history may result in future difficulties, including pain, the Veteran showed no fractures as a result of basic training. Thus, the examiner was left to consider possible soft tissue injuries, which "do heal." Per the Veteran's own testimony, his right foot pain improved greatly following his exit from service, and was only triggered following prolonged standing and walking. However, this was an expected baseline, given his medical history. Thus, it was reasonable to presume that the Veteran experienced right lower extremity pain prior to service, which increased given the rigorous demands of service, but that his condition "would have return to its pre-military status within weeks to months of stopping boot camp training." A concurring opinion was provided in July 2021, at which time a VA examiner concluded that the claimed conditions were clearly and unmistakably not aggravated beyond their natural progression by the Veteran's military service. Here, the examiner noted the Veteran's history of preexisting polio with resulting surgeries and his conflicting STRs. However, according to a contemporaneous evaluation, the Veteran's residuals are due strictly to his polio, including muscle weakness, atrophy, and leg length discrepancy. Although foot pain was the primary reason noted for separation, there was no notation of the Veteran's multiple, current right foot disorders at that time. Had the current conditions existed and been aggravated by basic training, there would be medical evidence in support thereof. However, the Veteran had a thorough foot evaluation prior to his separation, which did not support such a finding. Instead, the Veteran's current disorders were diagnosed several decades after service. It would simply appear that the medical officer "dropped the ball" at the time of entrance, and it was almost certain that the Veteran entered with some degree of atrophy and muscle weakness. Thus, his pain represented only temporary aggravation, with no permanent impact after the cessation of the activities leading to the pain. In the absence of evidence showing pain in the decades following service, resolution of the in-service symptoms was found. The above opinions are highly probative evidence against the appeal. Collectively, these opinions are derived from exhaustive consideration of the Veteran's childhood polio and surgeries; the physical demands of his military service; and the perceptible impact of such service on his residual symptoms, based on the Veteran's distinct history and general medical knowledge. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). There is no indication that the examiners were not fully aware of the Veteran's past medical history or misstated any relevant fact in formulating the negative opinions. Moreover, both examiners possess the requisite expertise to render competent opinions as to medical matters, to include the in-service aggravation of a preexisting medical condition. Compellingly, there are no competent opinions of record which tend to contradict the examiners' findings. Rather, the only positive opinion of record is that offered by the Veteran. However, he lacks the requisite training and expertise to offer a competent opinion as to complex medical matters, including those central to this appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, greater probative value is afforded to the competent medical evidence of record, which supports a negative finding of aggravation in this case. In so finding, the Board acknowledges that its November 2017 and July 2020 remands found that the existing VA opinions did not fully address all theories of entitlement as raised by the record, or were offered upon incomplete VA treatment records. However, neither critique invalidates the probative value of these opinions, as an incomplete examination does not necessarily render the provided assessments inadequate, and no such finding is offered at this time. Additionally, the latter remand was based upon the absence of treatment records speaking to relevant current diagnoses, which has since been rectified. Thus, while the prior remands were justified, the March 2016 and March 2018 opinions are of sufficiently probative value upon which to assess the merits of these appeals, particularly when viewed in conjunction with the corresponding 2021 opinion. Additionally, the Board notes that the March 2016 and 2018 opinions are quite detailed, such that their complete findings are not duplicated herein. However, the Board is not obligated to discuss each piece of evidence in full. See, e.g., Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board has offered a summary of the examiner's findings herein, with its own analysis that the examiner fully and directly contemplated all relevant factors, including as requested in its prior remands. In sum, it is clear and unmistakable that the Veteran's preexisting polio and right foot/hip residuals were not aggravated by his military service. The presumption of soundness is rebutted in this case, and the appeals are denied upon a finding that the Veteran's preexisting conditions were not aggravated by service. However, additional analysis is required with respect to the right foot appeal, as the record also raises the possibility that the Veteran's multiple current disorders are directly related to service. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this respect, the March 2018 examiner opined that the Veteran's current right foot arthritis and pes planus are at least as likely as not due to his childhood polio, rather than his military service. Current x-rays showed damage to the right great toe IP joint, and it is known that the Veteran's childhood surgery "worked at that joint, but . . . was not successful." An x-ray taken at service entry also showed incomplete fusion to that joint. Thus, there had been an attempt to fuse the joint previously, which was unsuccessful and caused the current arthritis. Additionally, this Veteran appears to be susceptible to flat feet, as he also shows this condition in his "good" foot. Thus, if the condition is observed in the extremity unaffected by his polio, it is likely that he would have developed the pes planus anyways, particularly as most people show this condition bilaterally. While it is possible that the Veteran's polio may have caused the right arch to fall sooner due to muscle weakness, it is not possible to ascertain whether this has happened here. Regrettably, the enlistment examination does not provide a full picture of the Veteran's right foot condition, precluding reliable assessment. Insofar as the Veteran attributes his current right foot disorders to the rigors of military training, the examiner noted that he was only in active duty status for 44 days. This is such a short period of time that the examiner would not expect the training exercises to have been undertaken for long enough to cause long-term damage to the feet. Instead, the Veteran's medical records show that he spent several years in labor-intensive positions following his military separation, and incurred additional injury during this time. These findings are supported by a series of May 2021 opinions. At that time, a VA examiner opined that the Veteran's right foot arthritis was less likely than not related to his service. Specifically, the Veteran showed right great toe arthritis, which represented the long-term effects of childhood surgery. The examiner also concluded that the Veteran did not have a current diagnosis of pes planus; showed no objective findings on evaluation; was not diagnosed with pes planus during service; and testified that he had never been diagnosed with pes planus. Accordingly, the prior diagnosis appears to have been made in error, and no such disorder was related to the Veteran's military service. Again, the above opinions are afforded significant probative value, as the examiners contemplated the full scope of the Veteran's right foot diagnoses, his medical and military histories, and the identifiable etiology of each condition. Prejean, 13 Vet. App. at 448-49; see also Nieves-Rodriguez, 22 Vet. App. at 302-04. Each examiner provided exceptionally detailed reviews of the Veteran's records, and there is no evidence that any fact was misstated or misrepresented in so doing. Rather, the opinions represent competent evidence against the claim, which are not adequately challenged by the Veteran's non-expert opinion. Jandreau, 492 F.3d at 1376-77. Thus, the right foot appeal also fails on a direct basis, even in interpreting the evidence in the light most favorable to the Veteran and conceding that he shows current pes planus. Finally, the Board has considered whether the right foot arthritis may be granted on a presumptive basis due to chronicity. However, the record does not establish that the Veteran's arthritis onset within one year of military separation, such that the appeal fails on this basis. 38 C.F.R. § 3.309; see March 2016 VA examination (identifying an onset of 2016). Upon the above, the preponderance of the evidence is against the claims such that the benefit-of-the-doubt rule is not applicable, and service connection for poliomyelitis (and current residuals), a right foot disorder, and a right hip disorder are denied. TDIU Generally, VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Thus, the central inquiry in a TDIU claim is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). This Veteran is not currently service-connected for any disabilities, nor has service connection for such been awarded herein. Accordingly, he lacks the legal grounds to establish entitlement to a TDIU under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). The appeal is hereby denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.