Citation Nr: 21066094 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-43 795 DATE: October 28, 2021 ORDER Entitlement to service connection for bilateral pes planus, to include as secondary to bilateral knee replacements, is denied. Entitlement to service connection for calcaneal spurs of the feet, to include as secondary to bilateral knee replacements, is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran's bilateral pes planus were not caused by his military service, did not have their onset during military service, and were neither caused nor aggravated by the service-connected bilateral knee replacements. 2. The most probative evidence of record shows that the Veteran's bilateral calcaneal spurs of the feet were not caused by his military service, did not have their onset during military service, and were neither caused nor aggravated by the service-connected bilateral knee replacements. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus of the feet, to include as secondary to service-connected bilateral knee replacements, have not been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for bilateral calcaneal spurs of the feet, to include as secondary to service-connected bilateral knee replacements, have not been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1965 to October 1968, to include service in the Republic of Vietnam. These matters come to the Board of Veterans' Appeals (Board) on appeal from November 2017 and August 2018 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices. In an October 2018 substantive appeal, the Veteran indicated that he wanted to appear at a Board hearing in Washington. D.C. However, his representative reported in July 2019 that the Veteran no longer wished to have a hearing. In October 2019, the Board, in part, denied the claims listed above. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating those parts of the Board's decision that denied service connection for OSA, bilateral pes planus, and calcaneal spurs of the feet and remanding those matters for additional development and readjudication. The issues were remanded by the Board in June 2021 pursuant to the terms set forth in the May 2020 JMPR. The Board notes that the issue of entitlement to service connection for hypertension was remanded by the Board in August 2021. However, as the issue has not yet been returned to the Board, it will be addressed in a separate Board decision. SERVICE CONNECTION 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§ 3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). 1. Entitlement to service connection for bilateral pes planus, to include as secondary to bilateral knee replacements 2. Entitlement to service connection for calcaneal spurs of the feet, to include as secondary to bilateral knee replacements The Veteran contends that he has bilateral pes planus and calcaneal spurs of the feet as a result of his service. Specifically, the Veteran contends that his calcaneal spurs are the result of jumps he performed as a paratrooper. In the alternative, the Veteran argues that his bilateral pes planus and calcaneal spurs of the feet are secondary to his service-connected bilateral knee disabilities. The Veteran's service treatment records do not document any subjective complaints or clinical findings of any orthopedic problems relating to the Veteran's feet. Upon separation from service, the Veteran checked "Yes" for "Foot Trouble" on his October 1968 Report of Medical History. However, the Veteran's October 1968 separation examination indicated "Normal" results for "Feet." Following his separation from service, the Veteran was afforded a VA examination in March 1974. He reported injuring his left knee and left ankle in a parachute jump but reported that the ankle has been asymptomatic. He was able to stand and walk in his heels and toes well. His gait was normal with good propulsion and balance, he was able to stand on either leg and "squat to normal." He did not complain of foot pain and a foot disability was not identified. A March 1994 VA bone examination recorded the Veteran's report of injuring both knees while running away from incoming rounds. He stated that he "stumbled into holes" and reported bilateral knee pain since that injury. He did not complain of foot pain and a foot disability was not identified. VA outpatient treatment records include an August 1999 "routine health exam" which documented that the Veteran denied experiencing any acute distress. He did not complain of foot pain and a foot disability was not identified. In February 2000, the Veteran reported for another examination. The Veteran's extremities were examined; the reviewing clinician stated that there was no edema and did not identify pes plans or calcaneal spurs. He did not complain of foot pain and a foot disability was not identified. The Veteran received additional VA treatment in August 2000. At the time he reported feeling well and requested "renewal of his disability handicap sticker." It was noted that the Veteran "cannot not walk far due to his arthritic knees." He did not complain of foot pain and the reviewing clinician did not identify any foot pain or foot disability. To the extent the Veteran contends that he has had a foot disability since service, the Board finds such statements to be not credible. If the Veteran had been experiencing ongoing foot pain since service it would be expected that he would have described such symptomatology when receiving treatment for other lower extremity joint disabilities and complaints, or that similar findings would have been noted by the treating clinicians or examiners. To the extent the Veteran argues that his bilateral pes planus and calcaneal spurs of the feet are related to service, the Veteran in this case is not competent to provide a nexus opinion regarding these issues. Although the Veteran is competent to report symptoms of swelling and pain in his feet, he is not competent to report on the etiology of such. The issues are medically complex, as they require knowledge of pathology and the Veteran lacks the skills and experience to relate his foot pain to his service. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As noted above, the Board finds that the Veteran's lay statements are not competent to establish that his bilateral pes planus and calcaneal spurs are related to his service. Aside from these statements, the evidence of record does not contain any competent evidence suggesting a link between his current disabilities and his active duty service. Thus, the Board finds that the preponderance of the evidence of record is against the claims for service connection for bilateral pes planus and bilateral calcaneal spurs of the feet on a direct basis. Because there was no such suggestion, there is no duty to assist error in the decision not to obtain a medical opinion regarding direct service connection. Regarding secondary service connection, at a July 2018 examination, a VA examiner opined that it was less likely than not that the Veteran's diagnosed bilateral pes planus and bilateral calcaneal spurs of the feet were proximately due to or the result of the left and right knee total knee replacements. With respect to the diagnosed bilateral pes planus, the VA examiner reasoned that in most cases, it would be seen in a person's early life and not after knee replacements. The VA examiner noted that having total knee arthroplasties (TKAs) did "not increase one's risk of getting pes planus." Concerning the Veteran's diagnosed bilateral calcaneal spurs, the VA examiner reasoned that they were not caused by TKAs. In fact, according to the examiner, those with TKAs "would be less likely to develop heel spurs because they usually do not run or go on long walks or stand for prolonged periods of time which are all risk factors for developing heel spurs." The VA examiner noted that risk factors that were associated with heel spur development included active individuals who performed high-impact and repetitive activities (e.g., runners), and that people with TKAs were less likely to perform such activities. The VA examiner noted that being overweight or obese increased pressure on the feet in general. The issues of entitlement to service connection for bilateral pes planus and calcaneal spurs were denied in an October 2019 Board decision based on the July 2018 VA examination report. However, as noted above, the Veteran appealed this denial to the Court and in a May 2020 JMPR, the parties agreed that the Board erred by not ensuring that the VA complied with its duty to assist and failed to provide an adequate statement of reasons and bases that adequately addressed the evidence of record. The parties agreed that as the July 2018 VA examiner failed to address the aggravation elements of service connection, the Board must obtain a new examination that addresses whether the Veteran's bilateral pes planus and calcaneal spurs were aggravated by his service-connected bilateral knee replacements. As such, the issues were remanded by the Board in June 2021 in order to obtain a VA addendum medical opinion that would comply with the May 2020 JMPR and Court Order. In a June 2021 VA opinion, a VA examiner highlighted that "X-rays have consistently shown the B/L knee implants are well fixed, well-positioned, no need for revision knee replacement since 2015." The examiner noted that there was no medical evidence of bilateral "knee replacement failure associated with possible impact on b/l pes planus and/or calcaneal spurs." After reviewing the evidence of record, the examiner concluded that it is less likely as not that the Veteran's bilateral pes planus and calcaneal spurs were aggravated by his service-connected bilateral knee replacements, to include as a result of altered gait mechanics. Regarding the question of whether the Veteran's bilateral pes planus and calcaneal spurs are secondary to his bilateral knee disabilities, the Board finds the July 2018 and June 2021 VA opinions in combination to be highly probative in this case because they were based on a thorough review of the Veteran's service and post-service treatment records and supported by adequate rationales based on factually accurate information in the Veteran's record. The VA examiners collectively explained that the Veteran's bilateral pes planus and calcaneal spurs were not due to his service-connected knee disabilities. The record does not contain any competent evidence suggesting otherwise. The Board has considered the Veteran's personal assertion that there is a relationship between his bilateral pes planus and bilateral calcaneal spurs of the feet and his service-connected bilateral TKAs. However, while 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, orthopedic disability, 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). That is, although the Board readily acknowledges that the Veteran is competent to report symptoms such as swelling and pain in an extremity, there is no indication that he is competent to link his bilateral pes planus and bilateral calcaneal spurs of the feet to the service-connected bilateral TKAs. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent evidence and lacks probative value. Accordingly, service connection for bilateral pes planus and calcaneal spurs on a direct and secondary basis are not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for OSA, to include as secondary to PTSD The Veteran contends that he has OSA as a result of his service. In the alternative, the Veteran contends that his OSA is secondary to his service-connected PTSD. As previously noted, in May 2020, the Court granted a JMPR that vacated the Board's October 2019 denial of service connection for OSA. In this regard, the parties observed that the Board erred by not ensuring that the VA complied with its duty to assist and failed to provide an adequate statement of reasons and bases that adequately addressed the evidence of record. The parties agreed that the March 2018 VA examination report failed to address a November 2017 private examiner's opinion that the Veteran's sleep apnea was aggravated by his PTSD. The parties noted that the March 2018 VA examination report was based on an inaccurate factual premise and a remand was warranted in order to obtain a medical opinion that discussed the private November 2017 opinion. The June 2021 Board remand directed the RO to obtain a new medical opinion regarding whether the Veteran's OSA was caused or aggravated by his service-connected PTSD. The examiner was directed to address the study referenced in the November 2017 opinion and also address the observation that the Veteran can become anxious and irritated when he feels suffocated by a CPAP mask. Thereafter, a June 2021 VA examiner opined that the Veteran's OSA was less likely than not aggravated beyond its natural progression by his PTSD because "PTSD is a mental health condition that does interfere with sleep, but it does not cause or aggravate OSA." The examiner explained that "OSA is a physical upper airway blockage and not the result of symptoms associated with PTSD." In a July 2021 addendum opinion, the same VA examiner noted that "there is no instance in which having PTSD symptoms of anxiousness or irritation or feelings of suffocation affect obstructive sleep apnea." The examiner added that the Veteran's mental health symptoms interrupted "his sleep but does not increase or decrease the upper airway obstruction." She noted that "the VBA may need to consult a mental health specialist regarding the effect of PTSD on OSA." Because the additional consultation was not obtained, a new medical opinion is necessary. In addition, in September 2021 Appellate Brief, the Veteran cited to an article indicating that PTSD increases the risk of sleep apnea. The Veteran also cited to an article indicating an association between PTSD and obesity "which would have implications for the development of obesity-related diseases in this population." The Board finds that a remand is warranted in order to obtain an addendum medical opinion that considers the articles cited to by the Veteran. The matters are REMANDED for the following action: 1. Arrange for an appropriate mental health specialist, to review the Veteran's claims file. If the examiner feels an in-person or video telehealth examination is necessary, another examination should be scheduled. The examiner should address the following: a) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's obstructive sleep apnea has been (a) caused or (b) aggravated (worsened beyond natural progression) by his service-connected PTSD? In formulating an opinion, the examiner should consider the studies referenced to in the September 2021 Appellate Brief suggesting i) that PTSD increases the risk of sleep apnea, and ii) that there is an association with PTSD and obesity, leading to obesity-related diseases. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.