Citation Nr: 21063482 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-50 008A DATE: October 14, 2021 ORDER As new and material evidence has been received to reopen a claim for service connection for a bilateral eye disorder, the appeal, to this extent, is granted. Entitlement to service connection for a bilateral eye disorder, to include diabetic retinopathy, is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for bilateral heel spurs is denied. REMANDED Entitlement to service connection for allergies is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a right-hand disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. In a September 2014 rating decision service connection for a bilateral eye disorder was denied. The Veteran did not perfect an appeal and relevant evidence was not received within a year of the decision. As such, the decision became final. 2. The evidence received since the September 2014 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim denied. 3. The preponderance of the evidence is against finding that a bilateral eye disorder began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that diabetes mellitus began during active service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that bilateral heel spurs began during active service, or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The September 2014 rating decision which denied service connection for a bilateral eye disorder is final. 38 U.S.C.A. § 7105(c) (2018); 38 C.F.R. §§ 20.302, 20.1103 (2021). 2. New and material evidence has been received to reopen the claim for service for a bilateral eye disorder. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2021). 3. The criteria for service connection for a bilateral eye disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2021). 4. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2021). 5. The criteria for service connection for bilateral heel spurs are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1986 to September 1989 and from February 1991 to May 1991, with additional years of Naval Reserve service until 2006. In November 2019, the Board denied multiple issues, to include in pertinent part service connection for allergies and reopening a claim for service connection for a bilateral eye disorder. The Board also remanded the other issues currently on appeal for additional development or the issuance of a statement of the case (SOC). In March 2021, the Court of Appeals for Veterans Claims (Court) issued a memorandum decision finding that the Veteran's bilateral eye disorder claim included a current diagnosis of diabetic retinopathy, which was inextricably intertwined with the issue of service connection for diabetes mellitus that the Board had remanded. The Court found that the Board should consider whether the request to reopen was sufficiently related to diabetes mellitus that it should have been remanded together. The Board also did not address two in-service reports of nasal congestion that the Veteran contends may suggest symptoms of allergies. The Board notes that the issues of entitlement to service connection for heel spur, diabetes mellitus, and OSA were previously denied in rating decisions in November 2013 and/or September 2014. Although VA does not appear to have characterized them as ones to reopen in the current appeal, the Board finds that they have effectively been deemed reopened. The Veteran is not prejudiced by this finding as it is favorable to the Veteran. Service Connection 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a bilateral eye disorder. The RO denied service connection for a bilateral eye disorder in a September 2014 rating decision. This decision became final in September 2015. The evidence submitted after September 2015, includes a new diagnosis of diabetic retinopathy in a March 2016 VA medical record. The new diagnosis relates to unestablished facts necessary to substantiate this service connection claim. Therefore, the Board finds that the claim for service connection for a bilateral eye disorder should be reopened. 2. Entitlement to service connection for a bilateral eye disorder. The Veteran contends, in an August 2013 lay statement, that when he first entered service he was not wearing eyeglasses but wears them now as his eye are slowly deteriorating. In a March 2014 lay statement, received in May 2016, he again contended he did not need eyeglasses when he came to the Navy, but had to buy them by the time he left, due to the type of work he did that would require great vision and focus. He stated he had become nearsighted. The Board notes that the November 2017 rating decision adjudicated this matter as a service connection claim, without new and material evidence consideration. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). At the outset, the Board notes that as above, in March 2021, the Court found that the Board should consider whether the request to reopen was sufficiently related to diabetes mellitus that it should have been remanded together. The Board finds that, indeed, it should have been remanded together. However, as the issue of service connection for diabetes mellitus has since returned to the Board post remand, the Veteran is no longer prejudiced by the failure to have not found it inextricably intertwined with the diabetes mellitus claim (which will be addressed below). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of mild diabetic retinopathy and presbyopia, per a March 2016 VA eye consult, the preponderance of the evidence weighs against finding that the Veteran's diabetic retinopathy began during service or is otherwise related to an in-service injury, event, or disease. The Board notes that on a January 1989 evaluation, prior to his September 1989 separation from active duty the Veteran had 20/20 vision. Also, in an October 1989 reserve service evaluation the Veteran had 20/20 vision. In a June 1998 reserve evaluation, several years after his last period of active duty in May 1991, the Veteran still had 20/20 vision. Indeed, even after his 2006 retirement from reserve service, a February 2009 private medical record Dr. K.E.L. indicated that the Veteran's vision for both eyes was 20/20. Moreover, for his current presbyopia diagnosis, the Board notes that myopia, astigmatism, and presbyopia are refractive errors. (See http://www.merck.com/mmpe/sec09/ch099/ch099a.html). Under the law, a refractive error is not subject to service connection. See 38 C.F.R. § 3.303(c). In claims for service connection for refractive errors (i.e., myopia, astigmatism, and presbyopia) the law is dispositive, the claims must be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board further notes that as service connection for diabetes mellitus is denied (as will be discussed below), service connection for diabetic retinopathy as secondary to diabetes mellitus is not possible. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Service connection for a bilateral eye disorder is denied. 3. Entitlement to service connection for diabetes mellitus. In his August 2016 notice of disagreement, the Veteran contended that in 2002 while on a reserve military exercise in California he noticed he was urinating all night for two weeks and was diagnosed with diabetes upon his return. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of diabetes mellitus, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Board finds that the Veteran's report of diabetes mellitus developing in 2002, during or after some reserve exercises, not to be consistent with the objective evidence of record. In his January 2013 initial application, the Veteran stated his diabetes mellitus began in August 2001, which is approximately 10 years after his last period of active duty in May 1991. Similarly, in a contemporaneous September 2001 service treatment record the Veteran had already specifically reported he had diabetes. An October 2001 private medical record, by podiatrist Dr. M.S. also clearly indicated that the Veteran was seen for diabetic foot care. In a March 2002 service treatment record, the Veteran again reported having diabetes mellitus. In a May 2004 service treatment record the Veteran reported having diabetes mellitus for 3 years. In April 2013, the Veteran's private physician Dr. K.E.L. reported that his diabetes mellitus began in 1993 (years after his separation from service). Given the conflict between the Veteran's own reports and the contemporaneous medical evidence, the Board finds that the Veteran assertions that his diabetes was first diagnosed in 2002 not to be reliable. Moreover, such evidence also makes clear that the Veteran did not have a diagnosis of diabetes mellitus until many years after his September 1989 separation from service and well over a year after his February 1991 to May 1991 period of active duty. There is no medical opinion evidence indicating that the Veteran's diabetes mellitus developed due to service, other than the Veteran's non-reliable report. The Board finds that the contemporaneous medical evidence is more probative than more recent reports and contentions by the Veteran. Furthermore, the Veteran's mere conclusory generalized lay statement that service event or illness caused his current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board finds this especially true when the Veteran's lay statement is not reliable. Therefore, the Board finds that a VA examination and/or opinions is not necessary to decide the issue as there is already sufficient evidence of record. To the extent that the Veteran is providing a medical opinion that his diabetes mellitus developed due to active service, the Board notes that such a question falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The diagnosis of diabetes mellitus requires specific medical testing that the Veteran has not performed and medical knowledge that the Veteran does not have. In the September 2020 statement, the Veteran's attorney also argued that the diabetes mellitus was inextricably intertwined with the issues of entitlement to service connection for chest pain, asthma, bronchitis, and sinusitis. The attorney argued that those disorders caused the Veteran to struggle to maintain fitness which led to weight gain, which contributed to the diabetes mellitus. Those matters were denied in a November 2019 Board decision and the denials were affirmed in the March 2021 Court memorandum decision. As such, service connection for diabetes mellitus as secondary to those nonservice-connected disorders is not possible. The Board further notes that in addition to the years of reserve service performed by the Veteran after his last period of active duty, per the private medical records of Dr. K.E.L., following active service the Veteran worked as a police officer, a job that has its own physical fitness standards, and was able to meet those standards over a decade after his last period of active duty. His employment physical evaluations from Dr. K.E.L., did not indicate any physical limitations until well over a decade after 1991. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Service connection for diabetes mellitus is denied. 4. Entitlement to service connection for heel spurs. The Veteran contends, in a March 2014 lay statement, that in service he was forced to wear military issued boots with no real foot support. At times, he had to stand all day, jog, and march long distances, which led to heavy pounding on his feet. As the years passed, he reported that he developed foot problems, to include a heel spiral. He indicated he first thought his feet were aching because of PT (physical training), but over the years due to his complaints he saw a foot specialist who diagnosed him with a heel spiral on the left foot, with another developing on his right foot. He has since had surgery to remove the heel spur on his left foot. He contends these complaints happened during active duty and into his reserve service, but that he was not the type to complain in service. Additionally, in a September 2020 statement, the Veteran's attorney argued that the heel spurs were inextricably intertwined with the issues of entitlement to service connection for chest pain, asthma, bronchitis, and sinusitis. The attorney argued those disorders caused the Veteran to struggle to maintain fitness which led to weight gain and contributed to the heel spurs. The Board again notes that those matters were denied in a November 2019 Board decision and upheld in March 2021 Court memorandum decision. As such, service connection for heel spurs as secondary to those nonservice-connected disorders is not possible. The Board also reiterates that following service the Veteran performed police work over a decade after his last period of active duty, which was a physical job with its own fitness standards. His physical evaluations for his police officer role from Dr. K.E.L., did not indicate any physical limitations until well over a decade after 1991. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran had his left heel spur surgically removed in April 2008, per a private medical record from his podiatrist Dr. M.H.S. A November 2011 record from that provider noted that the Veteran had a new complaint of heel pain bilaterally and that X-rays revealed heel spurs with associated heel and arch pain secondary to plantar fasciitis. The Board will give the Veteran the benefit of the doubt as to him having a current diagnosis of bilateral heel spurs. The Board concludes that, while the Veteran has a diagnosis of bilateral heel spurs, the preponderance of the evidence is against finding that they began during active service, or is otherwise related to an in-service injury, event, or disease. The Board further notes that in a now final September 2016 rating decision, the regional office (RO) denied service connection for bilateral plantar fasciitis. To the extent that the Veteran has heel spurs due to his nonservice-connected plantar fasciitis, as indicated in the November 2011 record of Dr. M.H.S., service connection as secondary to that disorder is not possible. Service treatment records are silent as to any complaints of, or treatment for, the Veteran's feet. As indicated above in the Veteran's lay statement, he indicated that the lack of such records was due to him not being the type to make complaints. In a September 2020 lay statement he further indicated that due to racial tensions he did not seek treatment. Although that may be possible, the Board notes that there are literally hundreds of service treatment records for the Veteran indicating that treatment was sought at times. Moreover, various evaluations by medical professionals over decades specifically found no foot abnormalities and the Veteran repeatedly denied having foot trouble, including in an August 1989 report of medical history prior to his September 1989 separation from service and a June 1998 report of medical history years after his period of active duty ending in May 1991. A June 2003 reserve annual examination found normal feet. A June 2008 reserve service record is the first service treatment record indicating heel spur. At that time, the Veteran reported for release from TNPQ status (used when a reserve member has a medical or dental condition that is not service connected and is expected to be resolved in less than 180 days) and noted that he had undergone surgery in April 2008. The November 2011 record from Dr. M.H.S. also appears to indicate that the current bilateral heel spurs developed over 3 decades after the Veteran's last period of active duty in May 1991, and indeed even several years after the Veteran's 2006 retirement from reserve service. The Board notes that the Veteran received treatment from private podiatrist Dr. M.H.S. for several years after service, initially starting in October 2001 (over 10 years after his last active-duty period). The Veteran did not seek treatment for foot pain, but rather for diabetic foot care. It was not until the following year that the Veteran had a new complaint of fasciitis of both feet, in February 2002. Notably, no complaints of, or treatment for, or finding of heel spur was made at that time or in the subsequent years of treatment. The first complaint of left heel pain was in January 2007, over 15 years after his last period of active duty. Following his April 2008 surgery to have the spur removed, a September 2008 record indicated that his left foot had healed, and the Veteran was back to running. An August 2013 record from podiatrist M.H.S. notes that the Veteran was treated in 2002 for his foot pain and treated with orthotic and anti-inflammatories. He returned in January 2007 for left heel pain, received surgery in April 2008, which was completely healed by September 2008. After that time for the next year, he received diabetic foot care with occasional foot pain complaints, until November 2011 when he returned with complaints of pain in both heels and was treated with medication. The Veteran's last visit with that provider was December 2011. As noted by the Veteran, he does not receive treatment from VA for his heel spurs. The duty to assist under 38 U.S.C. § 5103A (d) and 38 C.F.R. § 3.159(c)(4) is triggered when it is necessary to obtain an examination to decide in the case. Factors to consider in determining whether an examination is necessary include whether there is evidence of a current disability, and whether there is evidence that the disability may be associated with the appellant's military service or another service-connected disability but there is not sufficient medical evidence to decide on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In the present case, the Board finds the Veteran's reports as to in-service foot complaints are not reliable given the disparities between the Veteran's current reports and the contemporaneous medical evidence discussed above. The Board further finds that the Veteran did not have any heel spur until over 15 years after his last period of active duty, and that he did not have his currently claimed heel spurs until years after the removal of that prior heel spur in 2008. Furthermore, sufficient evidence is of record to decide the claim. Therefore, a VA examination is not necessary. While the Veteran believes his bilateral heel spurs are related to service, the Board reiterates that the preponderance of the probative evidence weighs against finding an in-service injury occurred. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether heel spurs began during service, falls outside the realm of common knowledge of a lay person. See Jandreau, supra.; see also Woehlaert, supra. "Competent medical evidence" is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). In this regard, a diagnosis of heel spurs is made based on medical anatomical knowledge and evaluation, as well as, X-ray consideration. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Service connection for bilateral heel spurs is denied. REASONS FOR REMAND 1. Entitlement to service connection for allergies is remanded. In March 2021, the Court found that the Board did not address two in-service reports of nasal congestion that the Veteran claims may suggest symptoms of allergies from August 19, 1987 and a November 1988 dental health questionnaire. There is also a March 2010 private medical record indicating a diagnosis of allergic sinusitis. A VA examination should be obtained. 2. Entitlement to service connection for headaches is remanded. The Board cannot make a fully informed decision on the issue of entitlement to service connection for headaches because no VA examiner has opined whether he has a current disorder due to service. 3. Entitlement to service connection for a right-hand disorder is remanded. 4. Entitlement to service connection for a right knee disorder is remanded. Although new VA examinations for the claimed right-hand and right knee disorders were obtained in December 2019, the VA examiner does not appear to have considered the Veteran's lay statements. In September 2020, the Veteran also argued that the VA examiner failed to listen to his in-service event and subsequent issues. An examiner may not ignore that lay evidence and base his opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). New VA examinations should be obtained. 5. Entitlement to service connection for OSA is remanded. As no VA examination has been obtained to address the Veteran's claim that his OSA began in service, one should be obtained. Any unassociated VA medical records should also be obtained. 6. Entitlement to service connection for hypertension is remanded. In an August 2016 notice of disagreement, the Veteran contends that his hypertension was caused by his claimed OSA. As such, the issues are inextricably intertwined and a remand is required. The matters are REMANDED for the following actions: 1. Any unassociated VA medical records should be obtained. 2. Obtain a VA medical opinion to address the claim for service connection for allergies. If the VA medical opinion provider deems that a VA examination is necessary to provide an opinion, one should be obtained. 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 opinion(s) below. The examiner is asked to provide a response to the following: Are the claimed allergies at least as likely as not related to service? The complete claims file should be reviewed. The Veteran claims symptoms of allergies are suggested from his service treatment records from August 19, 1987 and a November 1988 dental health questionnaire. The Veteran's periods of active service are from September 1986 to September 1989 and February 1991 to May 1991. There is also a post-service March 2010 private medical record indicating a diagnosis of allergic sinusitis that should be consider. Provide an explanation to support each opinion provided. 3. Schedule the Veteran for a VA examination for his claimed headaches. 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 opinion(s) below. The examiner is asked to provide a response to the following: Are the claimed headaches at least as likely as not related to service? Provide a rationale to support the opinion(s). The full claims folder should be considered, to include service treatment records from August 1987 and April 1988 indicating a report of headaches. The Veteran's periods of active service are from September 1986 to September 1989 and February 1991 to May 1991. 4. Schedule the Veteran for a VA examination for his claimed (i) right hand disorder and (ii) right knee disorder. The examiner must review the claims file. If a diagnosis(es) cannot be provided but the Veteran's conditions 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 claimed (i) right hand disorder and/or (ii) right knee disorder at least as likely as not related to service? The Veteran's periods of active service are from September 1986 to September 1989 and February 1991 to May 1991. Provide a rationale to support EACH opinion. 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? 5. Obtain a VA medical opinion for the claimed OSA. If a VA examination is deemed necessary to provide an opinion one should be obtained. 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 opinion(s) below. The examiner is asked to provide a response to the following: Is OSA at least as likely as not related to service, including the Veteran claim it began in service, to include from being forced to stay up at night during boot camp (per the February 1, 2014 lay statement of his wife G.H.T., received May 2016)? The Veteran's periods of active service are from September 1986 to September 1989 and February 1991 to May 1991. Provide a rationale to support the opinion(s). The full claims file should be reviewed, to include the lay statements received in May 2016 from his (i) wife G.H.T. and from his friend (ii) F.H. and (iii) the August 2016 notice of disagreement, private medical records (such as the September 2012 sleep study from Greenbelt Sleep Disorders Center), and VA medical records should be considered. 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? 6. If upon completion of the above the issues remain denied, the appeal should be returned to the Board after compliance with appellate procedures. E.I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.