Citation Nr: 21064694 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-89 808A DATE: October 21, 2021 ORDER Entitlement to service connection for left ankle peroneal tendonitis, to include degenerative arthritis, is granted. Entitlement to service connection for right ankle degenerative arthritis is granted. Entitlement to service connection for left foot degenerative arthritis is granted. Entitlement to service connection for right foot degenerative arthritis is granted. REMANDED Entitlement to service connection for degenerative arthritis of the cervical spine is remanded. Entitlement to service connection for basal cell carcinoma of the upper lip is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his left ankle disability had its onset in service. 2. Resolving reasonable doubt in favor of the Veteran, his right ankle disability had its onset in service. 3. Resolving reasonable doubt in favor of the Veteran, his left foot disability had its onset in service. 4. Resolving reasonable doubt in favor of the Veteran, his right foot disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for left ankle peroneal tendonitis, to include degenerative arthritis, have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 2. The criteria for establishing service connection for right ankle degenerative arthritis have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 3. The criteria for establishing service connection for left foot degenerative arthritis have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 4. The criteria for establishing service connection for right foot degenerative arthritis have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from June 1974 to June 1977 and from May 1979 to December 1987. The Veteran's service from June 1974 to June 1977 and from May 1979 to May 1983 is considered honorable for VA purposes. The period of service from May 1983 to December 1987 is dishonorable for VA purposes. This matter comes to the Board of Veterans' Appeals (Board) from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In March 2019, a Board video conference hearing was held before the undersigned; a transcript of the hearing is of record. In August 2019 and October 2020, the Board remanded these claims for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for left ankle peroneal tendonitis, to include degenerative arthritis 2. Entitlement to service connection for right ankle degenerative arthritis 3. Entitlement to service connection for left foot degenerative arthritis 4. Entitlement to service connection for right foot degenerative arthritis The Veteran and his representative assert that the Veteran is entitled to service connection for his bilateral ankle disorders as they originated during his active-duty service. With regard to his bilateral foot disabilities, the Veteran asserts that they originated during his service or are due to his bilateral ankle disabilities. The evidence reflects that the Veteran has been diagnosed with left ankle peroneal tendonitis, bilateral ankle degenerative arthritis, and bilateral foot degenerative arthritis, as noted in VA examinations from July 2014, January 2020, and November 2020. The Veteran was provided a July 2014 VA examination that diagnosed him with a left peroneal tendonitis in his left ankle. The VA examiner explained that the Veteran's service treatment records during his honorable period of service did not include complaints or any issues pertaining to a foot injury from a road march in 1975. The Veteran was afforded another VA examination in January 2020, due to the August 2019 Board remand, which confirmed that the Veteran has bilateral ankle degenerative arthritis. During the VA examination, the Veteran reported that, while he served in the infantry, his ankles would roll, and he would treat with aspirin and ACE wraps. The Veteran was afforded yet another VA examination in November 2020, due to the October 2020 Board remand, which confirmed a diagnosis of degenerative arthritis of the bilateral ankles and left ankle peroneal tendinitis. During the VA examination, the Veteran reported that, while he was in the infantry, he started having ankle complaints due to pain, as he was walking a lot during active service in all kinds of terrain; he also reported that after discharge his ankles continued to have pain and would roll when he walked. Regarding the Veteran's bilateral foot disabilities, the Veteran was afforded a VA examination in January 2020, due to the August 2019 Board remand, which confirmed a diagnosis of bilateral foot degenerative arthritis. During this VA examination, the Veteran reported that his bilateral foot issues are due to his bilateral ankle disabilities. The Veteran was afforded another VA examination in November 2020, due to the October 2020 Board remand, which confirmed a diagnosis of degenerative arthritis of the bilateral feet. During this VA examination, the Veteran reported that he began experiencing bilateral foot pain during active service. Accordingly, the first element necessary to establish service connection has been demonstrated for these claims. Concerning the second element to establish service connection, the Board observes that the Veteran's service treatment records (STRs) are devoid of a diagnosis of bilateral ankle or bilateral foot disabilities. However, the absence of documented treatment in service is not considered fatal to a service connection claim. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be pain in his bilateral ankles. Layno v. Brown, 6 Vet. App. 465 (1994). The January 2020 and November 2020 VA examinations note the Veteran's reported belief that his bilateral ankle and bilateral foot disabilities are due to his active-duty service, notably due to extensively walking in different kinds of terrain. The Board also notes that in March 2019, the Veteran testified in a Board hearing and provided additional information regarding injuries to his bilateral ankles and feet related to his active-duty service. The Veteran reported that, along with the infantry missions on differing terrains, he was involved in air assault training missions via a helicopter which resulted in five to six foot falls while wearing about 80 pounds worth of gear on his back, which also hurt his legs. See March 2019 Board hearing transcript. The Veteran is competent to report his symptoms, as a layman; however, his opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). Giving the Veteran the benefit of the doubt, the Board finds that his statements regarding in-service bilateral ankle and bilateral foot pain are sufficient to satisfy the second element necessary for his service connection claims. The only remaining issue to resolve these service connection claims is the nexus, the link between the in-service incident or injury and the current disability. The Board notes that the evidence regarding this element is mixed. The January 2020 VA examiner determined that the Veteran's bilateral ankle disability was not due to service because it was not diagnosed until 2013, and there was no diagnosis of a bilateral ankle disability diagnosed during his active-duty service. Similarly, the November 2020 VA examiner determined that the Veteran's bilateral ankle disability was not due to service because there was no diagnosis of a bilateral ankle disability diagnosed during his active-duty service. The January 2020 VA examiner determined that the Veteran's bilateral foot disability was not due to service because it was not diagnosed until 2019, and there was no diagnosis of a bilateral ankle disability diagnosed during his active-duty service. The November 2020 VA examiner determined that the Veteran's bilateral foot disability was not due to service because it was not diagnosed until 2013, and there was no diagnosis of a bilateral foot disability diagnosed during his active-duty service. The November 2020 VA examiner also concluded that there was no medical evidence to support the Veteran's claimed theory of secondary service connection, specifically that his bilateral ankle disability impacted his bilateral foot disability. The January 2020 and November 2020 medical opinions of record entirely omit discussions of the Veteran's lay statements and assertions. Therefore, the Board finds that these medical opinions have little probative value. The Veteran submitted a physician's opinion by his treating physician in August 2021 that notes review of the Veteran's service and medical records. The treating physician opined that the Veteran had no direct risk factors that would account for this bilateral ankle or bilateral foot disabilities other than his active duty service in the infantry. The Board finds that this medical opinion is more probative because it is based on a thorough review of the record, it contains details of the Veteran's history and in-service experiences, and clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). The Board further finds that the Veteran's credible statements of continuity of symptoms regarding the chronic disease of arthritis is additional probative evidence linking the Veteran's claimed disabilities to service. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for left ankle peroneal tendonitis, to include degenerative arthritis, right ankle degenerative arthritis, and bilateral foot degenerative arthritis is warranted. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for degenerative arthritis of the cervical spine is remanded. 2. Entitlement to service connection for basal cell carcinoma of the upper lip is remanded. The Board cannot make a fully informed decision regarding these claims on appeal as the medical opinions obtained in response to the August 2019 and October 2020 Board remands are inadequate for adjudicative purposes. In August 2019, the Board remanded these claims to afford the Veteran VA examinations for these claimed disabilities. Pursuant to the Board remand, the Veteran was afforded VA examinations in January 2020 and the VA examiner diagnosed the Veteran with degenerative joint disease of the cervical spine and basal cell carcinoma of the upper lip. While the examiner noted that the Veteran's basal cell carcinoma was resolved in 2013, the Board notes that the also filed his claim for service connection in 2013. If the Veteran's disability was active at any time during or immediately preceding the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding the current disability requirement may be satisfied by evidence of the disability shortly before the claim is filed). The Board also finds that the Veteran is competent to report his observable symptomatology associated with a diagnosed disability. The January 2020 VA examiner determined that the Veteran's degenerative joint disease of the cervical spine was not due to service because it was not diagnosed until 2007, and there were no complaints of neck pain during service. The January 2020 VA examiner also determined that the Veteran's basal cell carcinoma was not due to service because the basal cell carcinoma of the upper lip was diagnosed in 2013, more than 30 years after active-duty service. No other rationale for these conclusions was provided. This ignores the Veteran's lay statements of continuous, chronic symptomatology stemming from discharge through to the present day. The Board determined that the medical opinions of record entirely omitted discussions of the Veteran's lay statements and assertions. The Board found that the January 2020 VA examinations were inadequate for adjudication purposes and that additional VA examinations that address the Veteran's contentions needed to be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). Pursuant to the Board remand, the Veteran was afforded VA examinations in November 2020. The November 2020 VA examiner diagnosed the Veteran with degenerative arthritis of the cervical spine, intervertebral disc syndrome, spinal stenosis, basal cell carcinoma of the upper lip, and a right upper lip scar status post basal cell resection. The November 2020 VA examiner determined that the Veteran's cervical spine disabilities were not due to service because it was not diagnosed until 2008, and there were no complaints of neck pain during service, and generally stated that degenerative arthritis is often caused by wear and tear on a joint over a lifetime, and that it could be age-related. The examiner also determined that the Veteran's basal cell carcinoma was not due to service because there is no noted documentation, complaints, or treatment for basal cell carcinoma of the upper lip during the Veteran's active-duty service. No other rationale for these conclusions was provided. This ignores the Veteran's lay statements of continuous, chronic symptomatology stemming from discharge through to the present day. The November 2020 medical opinions of record entirely omit discussions of the Veteran's lay statements and assertions. The Board finds the November 2020 VA examinations are inadequate for adjudication purposes and that additional VA examinations that address the Veteran's contentions should be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). Therefore, yet another remand is necessary in order to obtain adequate medical examinations and opinions that comply with the Board's previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. The Veteran must be afforded new VA examinations by new VA examiners with appropriate expertise to determine the nature and etiology of the Veteran's diagnosed cervical spine and skin disabilities. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiners should be performed. The claims folder, including a copy of this remand and a copy of the Board hearing transcript, should be made available and should be reviewed by the examiners. Following a complete review of the record, the examiners are asked to provide: a. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cervical spine disability was caused by the Veteran's service from June 1974 to June 1977 and/or from May 1979 to May 1983. b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cervical disability was either (a) caused or (b) aggravated by the Veteran's service-connected disabilities. c. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's basal cell carcinoma of the upper lip was caused by the Veteran's service from June 1974 to June 1977 and/or from May 1979 to May 1983, to include over exposure to the sun during such service. d. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's basal cell carcinoma of the upper lip was either (a) caused or (b) aggravated by the Veteran's service-connected disabilities. Please note that lay statements are competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A complete rationale must be provided for all opinions rendered. If the VA examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.