Citation Nr: 21066011 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-44 099 Date: October 28, 2021 ORDER Entitlement to service connection for left foot disability, to include flatfoot (pes planus), plantar fasciitis, and arthritis is granted. Entitlement to service connection for right foot disability, to include flatfoot (pes planus), plantar fasciitis, and arthritis is granted Entitlement to service connection for left knee disability, to include degenerative arthritis and meniscal tear is granted. Entitlement to service connection for right knee disability, to include degenerative arthritis and meniscal tear is granted. REMANDED Entitlement to service connection for cervical spine condition is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. The Veteran's left foot disability is related to service; nothing was noted on the entrance examination with regard to the left foot. 2. The Veteran's right foot disability is related to service; nothing was noted on the entrance examination with regard to the right foot. 3. The Veteran's left knee disability is related to service. 4. The Veteran's right knee disability is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot disability, to include flatfoot (pes planus), plantar fasciitis, and arthritis have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303. 2. The criteria for service connection for right foot disability, to include flatfoot (pes planus), plantar fasciitis, and arthritis have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303. 3. The criteria for service connection for left knee disability, to include degenerative arthritis and meniscal tear have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303. 4. The criteria for service connection for right knee disability, to include degenerative arthritis and meniscal tear have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to August 1979. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran disagreed with the RO's determination and Statement of the Case (SOC) was issued in July 2016 addressing the matter. The Veteran timely appealed. In July 2021, the Veteran testified during a virtual videoconference hearing before the undersigned Veterans Law Judge (VLJ). Although a transcript of that hearing has not yet been made, one is not necessary for dispositions of these claims. A claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Given the multiple symptoms and diagnoses for the feet and knees in this case, the Board has recharacterized the claims more broadly. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Left Foot and Right Foot The evidence of record reflects current left and right foot disabilities. Specifically, a September 2017 private treatment record shows diagnoses flatfoot (pes planus) plantar fasciitis, and arthritis. The evidence of record indicates that an in-service injury or disease requirement has been met. At the Veteran's July 1975 enlistment examination, his feet were evaluated and noted as normal. The service treatment records (STRs) shows complaints and treatment for pes planus in September 1975 and October 1975. At the Veteran's March 1979 separation examination, his feet were evaluated and noted as normal. At his September 2021 Board hearing, the Veteran testified that he developed foot problems in basic training, because he would run everywhere, at times on concrete, and the shoes had very thin soles. He noted that he was on light duty for a short period, and his feet has never stopped bothering him since service. The evidence in the STRs, along with the Veteran's competent and credible statements are sufficient to meet the second element of the service connection claim. In a September 2017 letter, private Dr. R.C. reported that the Veteran's feet x-rays that have been documented, show that he has significant osteoarthritis that have developed as a result of the pes planus posture, and the limitation of these degenerative changes started, as documented in the military with the stresses and activities of drills and marches. Dr. R.C. opined that from review of the records and the information from the Veteran, these current difficulties with his feet, with bilateral flatfeet and tendency for plantar fasciitis and arthritis are a direct result of being initiated while in the military as documented from the records. Dr. R.C. explained that as the Veteran has aged, these post traumatic injuries have progressed with time. Dr. R.C. further explained that after thorough review of the Veteran's records and taking the history and doing the physical, it is his opinion the Veteran's condition has greater than 60 percent probability, that his problems and difficulties with his feet were initiated in the military. As Dr. R.C. explained the reasons for his conclusions based on an accurate characterization of the evidence, to include consideration of the Veteran's lay statement, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, there is no contrary medical opinion in the evidence of record. To the extent that there is evidence that pes planus preexisted service, every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. At the Veteran's July 1975 enlistment examination, his feet evaluation was noted as normal. Thus, the Veteran was presumed sound when he entered service and that presumption can only be rebutted with clear and unmistakable evidence of both preexistence and lack of aggravation. There is no evidence of lack of aggravation in this case. Based on the foregoing, the Board finds that the current diagnoses, STRs, Veteran's lay statements, and September 2017 private opinion, is a sufficient basis to grant service connection for left and right foot disabilities. Thus, service connection for left foot and right foot disabilities is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Left Knee and Right Knee The evidence of record reflects current left and right knee disabilities. Specifically, a September 2017 private treatment record shows diagnoses degenerative arthritis and meniscal tears of bilateral knees. The evidence of record indicates that an in-service injury or disease requirement has been met. The STRs shows complaints and treatment for right knee in August 1978, with a diagnosis of strained medial ligaments. Treatment is also shown for left knee in September 1978. At his September 2021 Board hearing, the Veteran testified that he developed knee problems in service and has continued to experience knee problems since service. The evidence in the STRs, along with the Veteran's competent and credible statements are sufficient to meet the second element of the service connection claim. With respect to the third element, of a nexus, in a September 2017 letter, private Dr. R.C. reported that knee x-rays in October 2007 the Veteran had prior to the surgery documented "a few calcifications project in the suprapatellar bursa, most likely due to prior trauma." Dr. R.C. noted that these calcifications are evidence of prior issues with his knee. Dr. R.C further noted that these calcifications typically develop from activities such as injuries playing basketball or doing drills and marching. Dr. R.C. opined that from review of the records and the information from the Veteran, the development of degenerative arthritis and meniscal tears in his knees are a direct result of being initiated while in the military as documented from the records. Dr. R.C. explained that as the Veteran has aged, these post traumatic injuries have progressed with time. Dr. R.C. further explained that after thorough review of the Veteran's records and taking the history and doing the physical, it is his opinion the Veteran's condition has greater than 60 percent probability, that his problems and difficulties with his knees were initiated in the military. As Dr. R.C. explained the reasons for his conclusions based on an accurate characterization of the evidence, to include consideration of the Veteran's lay statement, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, there is no contrary medical opinion in the evidence of record. Based on the foregoing, the Board finds that the current diagnoses, STRs, Veteran's lay statements, and September 2017 private opinion, is a sufficient basis to grant service connection for left and right knee disabilities. Thus, service connection for left foot and right knee disabilities is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REMAND 1. Cervical Spine The Veteran's post-service treatment records show diagnoses of cervicalgia, cervical radiculitis/neuritis, cervical muscle spasm, and cervical myalgia/myofascitis. At his September 2021 Board hearing, the Veteran testified that his cervical spine symptoms had its onset in service and has continued since service. In light of the Veteran's competent and credible statements, the evidence indicates that the Veteran has a current disability that may be associated with service. As the Veteran has not been afforded a VA examination in connection with this claim a remand for such an examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Back The Veteran's post-service treatment records show diagnoses of back spasms and back pain. At his September 2021 Board hearing, the Veteran testified that his back symptoms had their onset in service and has continued since service. In light of the Veteran's competent and credible statements, the evidence indicates that the Veteran has a current disability that may be associated with service. As the Veteran has not been afforded a VA examination in connection with this claim a remand for such an examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that, in Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018), the Federal Circuit held that pain could constitute disability under 38 U.S.C. § 1110 if it causes impairment in earning capacity and a diagnosis is not required to meet the current disability requirement. 3. Asthma At the Veteran's September 2021 Board hearing, he testified that his asthma began a long time ago, and that he had no problems before service. He noted that his asthma symptoms have continued since service. In light of the Veteran's competent and credible statements, the evidence indicates that the Veteran has a current disability that may be associated with service. As the Veteran has not been afforded a VA examination in connection with this claim a remand for such an examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate VA clinician to determine the nature of his cervical spine disability, to include via telehealth if warranted. The claims file must be reviewed by the clinician. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any cervical spine disability had its onset during service or is otherwise related to military service. In this regard, disability does not require a diagnosis, as symptoms causing impairment in earning capacity can constitute disability. A complete rationale should accompany any opinion provided. 2. Schedule the Veteran for an examination with an appropriate VA clinician to determine the nature of his back disability, to include via telehealth if warranted. The claims file must be reviewed by the clinician. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any back disability had its onset during service or is otherwise related to military service. In this regard, disability does not require a diagnosis, as symptoms causing impairment in earning capacity can constitute disability. A complete rationale should accompany any opinion provided. 3. Schedule the Veteran for an examination with an appropriate VA clinician to determine the nature of his asthma, to include via telehealth if warranted. The claims file must be reviewed by the clinician. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that asthma had its onset during service or is otherwise related to military service. A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.