Citation Nr: 21066493 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-09 157 DATE: November 1, 2021 ORDER Entitlement to service connection for chronic right shoulder pain is denied. Entitlement to service connection for depression is denied. Entitlement to service connection for chronic alcoholism, to include as secondary to depression, is denied. Entitlement to service connection for bilateral feet condition is denied. FINDINGS OF FACT 1. At no time during the appeal period was the Veteran diagnosed with a chronic right shoulder pain disability; there is also no evidence that this alleged condition results in any functional impairment. 2. At no time during the appeal period was the Veteran diagnosed with depression; there is also no evidence that the alleged depression condition results in functional impairment. 3. The Veteran has a current diagnosis of alcohol dependency; however, he is not service-connected for any acquired psychiatric condition, to include any depression-related acquired psychiatric disorder. 4. The most competent and credible evidence of record illustrates that there is no persuasive evidence that the Veteran's pre-existing bilateral pes planus was aggravated during military service. 2. No other feet related condition (bilateral plantar fasciitis) began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic right shoulder pain have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for depression have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for chronic alcoholism, to include as secondary to depression, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for entitlement to service connection for bilateral feet condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) from January 2015 and February 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a May 2019 videoconference hearing, a transcript of which is associated with the claims file. Having reviewed the record, the Board finds there has been substantial compliance with the Board's September 2019 Remand instructions. An adequate VA examination, as well as the requested VA treatment records and service personnel records, were obtained. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. In an August 2021 appellate brief, the Veteran's VSO raised the inadequacy of a VA feet examinationspecifically, the VSO stated that the examiner's opinion "did not adequately identify any conditions that cause his symptoms for condition on appeal and did not adequately address whether the condition on appeal is related to his active service." The Board disagrees. Initially, the Board points out that the February 2021 VA medical nexus opinion was requested for the Veteran's pre-existing pes planus condition; and thus, a medical etiology relating pes planus to his military service (ie. direct service connection) is not pertinent/not required. Moreover, the Board is cognizant that the Veteran was diagnosed with bilateral plantar fasciitis (in addition to bilateral pes planus) pursuant to the February 2021 VA examination. Although the examiner did not provide any medical nexus opinion regarding bilateral plantar fasciitis, to the extent that there is no evidence of any foot complaints/treatment/diagnosis (other than the pre-existing pes planus condition noted in the entrance examination) in his service treatment records, it was not necessary for the examiner to have provided a direct service connection medical nexus opinion for bilateral plantar fasciitis. Thus, the Board finds that this medical nexus opinion was adequate and finds a remand for medical addendum opinion not necessary. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim on appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present 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 or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Secondary service-connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for chronic right shoulder pain The Veteran seeks service connection for chronic right shoulder pain, which he contends began during basic training as a result of a defective or damaged ruck sack that pressed into his shoulder. As a threshold matter, the Board points out that the existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1110; See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the evidence of record does not show that the Veteran has been diagnosed with chronic right shoulder condition any time during the appeal period. His service treatment records are silent as to any complaint, treatment, or diagnosis relating to any right shoulder condition. In fact, during the August 2003 separation examination, he explicitly denied having or ever having had any shoulder pain, to include numbness and tingling. Review of his treatment records appears to document only a single complaint of right shoulder pain, during which time he reported occasional pain with no other symptoms, with no current pain. No diagnosis was provided during that time, and there was neither objective nor subjective evidence of his shoulder condition resulting in any functional impairment. See December 2015 VA treatment record. Historically, symptoms such as pain or increased sensitivity, without a diagnosed or identifiable underlying malady, were not sufficient to establish a current disability for VA compensation purposes. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (Sanchez-Benitez I). However, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit rejected such a theory, holding that pain can constitute a current disability under 38 U.S.C. § 1110, so long as it results in functional impairment. "Functional impairment" is defined as "the ability of the body or a constituent part of it to function under the ordinary conditions of daily life including employment." Id. at 1363 (quoting 38 C.F.R. § 4.10). Applying Saunders, the Board finds that the element of the current disability has not been met. As noted above, in this case, there is neither objective nor subjective evidence of his alleged right shoulder condition resulting in any functional impairment. At most, he only complained of occasional shoulder pain with no other symptoms, for which no assessment was provided and a finding of "no reduced range of motion" was noted. See December 2015 VA treatment record. The Board acknowledges the Veteran is competent to report any symptoms, but he is not competent to provide a diagnosis, as such requires complex medical knowledge and training that are generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Board does not afford any probative weight to his statement that he has a current right shoulder disability. In light of above, the Board concludes that the preponderance of the evidence is against this claim. See Gilbert, 1 Vet. App. 49, 54 (1990). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 2. Entitlement to service connection for depression The Veteran seeks service connection for depression. He originally claimed his depression was due to his alcoholism (specifically, that he has two felony convictions for driving while intoxicated and is now unable to obtain employment, see March 2014 VA Form 21-4138; see November 2015 Notice of Disagreement, asserting his depression "could be because of my uncontrolled drinking"). However, at the May 2019 Board hearing, he asserted for the first time that his depression was caused by the death of one of his in-service roommates, R.J., whom the Veteran contends was killed in Afghanistan in 2002. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1110; See Brammer, 3 Vet. App. 223, 225 (1992). Here, the evidence of record does not show that the Veteran has been diagnosed with any sort of depression-related acquired psychiatric disorder. In this case, the Veteran's service treatment records do not show any complaints, diagnosis, or treatment for any acquired psychiatric condition. His August 2003 separation examination shows the Veteran's affirmative denial of "depression or excessive worry," "been evaluated or treated for a mental condition," and "have you suffered from any injury or illness while on active duty for which you did not seek medical care." The Veteran's VA treatment records show that he has consistently denied having any symptoms of depression. See VA treatment records dated January 2012 VA mental health note (denied symptoms of depression); February 2014 VA primary care note (denied any depression or mood problems). His depression screen tests conducted throughout the appeal period consistently also show negative depression screen with a score of 0 (see December 2015, January 2020, and January 2021 VA treatment records). Moreover, the Board requested additional development on the alleged death of the Marine the Veteran contends is the source of his depression. However, to date, the Veteran has not submitted sufficient corroborating evidence to support any of his alleged in-service event relating to his "depression" condition. In response to the Veteran's reported in-service event, a March 2020 VA memorandum was issuedin which RO determined that the information provided by the Veteran was insufficient for the U.S. Army and Joint Services Records Research Center (JSRRC) to verify the alleged event. The RO also noted in the March 2020 VA memorandum that it had asked the Veteran for additional detail, to which no response was provided, and that search of the National Grave Locator was negative for R. J. in the USMC with a DOD of 2002-2003. While there is a record from the National Cemetery Administration, concerning death of two serviceman with initials R. J., neither of them corresponds with the timeframe the Veteran had provided regarding the death he alleges (a World War II veteran who died in 2000 and an Army veteran who died in 2007). The Board is cognizant that a symptom may be considered a disability even without an underlying diagnosis if it is severe enough to cause occupational impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, in this case, the Board finds that the Veteran does not have a current disability of depression even applying Saunders, 886 F.3d 1356 (Fed. Cir. 2018). There is simply no objective evidence showing any evidence of any depression related psychiatric condition, and while the Veteran alleged "depression," he himself has never alleged this condition causes any occupational impairment. Thus, the Board finds that the preponderance of the evidence is against the finding of the current disability pertaining to the alleged depression condition. In light of above, the Board concludes that the preponderance of the evidence is against this claim. See Gilbert, 1 Vet. App. 49, 54 (1990). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 3. Entitlement to service connection for chronic alcoholism, to include as secondary to depression The Veteran seeks service connection for chronic alcoholism. It is not in question that the Veteran has a current disability as he has been diagnosed with chronic alcoholism during the appeal period. As a threshold matter, the Veteran is precluded as a matter of law from service connection on a direct basis for his chronic alcoholism, because the progressive and frequent use of drugs or alcohol to the point of addiction is considered willful misconduct. See, generally, 38U.S.C. §105; 38C.F.R. §§3.1(m), 3.301(c)(3)(d). However, an alcohol or drug abuse disability arising as a direct result of a psychiatric condition may be service connected. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In this case, to the extent that the Veteran is not service-connected for any acquired psychiatric disorder, service connection for his alcohol abuse disability cannot be established on a basis of secondary service connection (ie. service connection for chronic alcoholism secondary to or caused by his depression-related acquired psychiatric disorder). Thus, the Board finds that his claim is denied. In light of above, the Board concludes that the preponderance of the evidence is against this claim. See Gilbert, 1 Vet. App. 49, 54 (1990). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 4. Entitlement to service connection for bilateral feet condition The Veteran seeks service connection for bilateral pes planus, which was noted on his November 1998 pre-induction medical examination as mild and asymptomatic. He contends his active service worsened his condition as a result of having to wear boots that were too narrow. He also testified to symptoms of numbness/tingling and having to remove shoes and rub the bottom of his feet after being on his feet for more than 2 hours. He also alleged that he just used insoles and soaked his feet with Epsom salts until 2012, when he first sought treatment post-service. Generally, a veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except for 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, 1137; 38 C.F.R. § 3.304 (b). Here, the Veteran's enlistment examination showed he had asymptomatic pes planus. He is not entitled to the presumption of soundness, then, for this particular condition. Where a veteran is otherwise not presumed sound on entrance, 38 U.S.C. § 1153 applies, meaning that for service connection to be warranted, it must be shown that a pre-existing injury or disease was aggravated by a veteran's active military, naval, or air service. Aggravation will be found where there is an increase in disability during such service (presumption of aggravation), unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and after service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare-ups is not evidence of an increase in disability). In this case, there is no persuasive evidence the Veteran's pre-existing bilateral pes planus increased in severity during service. The Veteran argues now that his feet condition worsened from service where he had to wear boots that were too narrow, but those allegations are made within the context of his claim for benefits, and are not as persuasive as the contemporaneous records. Notably, his service treatment records show no reports of foot pain or treatment for any foot-related concerns. He also denied during his August 2003 separation examination any feet issues. Therefore, the service records themselves do not show increase in severity. There is only one medical nexus opinion of record regarding his alleged feet condition: February 2021 Disability Benefits Questionnaire (DBQ) examination. The Veteran was diagnosed with bilateral pes planus with bilateral plantar fasciitis. After stating that mild pes planus was noted on entry, the examiner concluded that the Veteran's claimed pes planus, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. In doing so, the examiner explained that the Veteran's service treatment records do not provide any evidence of foot pain or foot symptoms during his service period, and added that his treatment records were silent for any foot pain until 2020, implicitly suggesting there was no evidence showing increase in severity in service. The Board assigns the most probative value to this opinion, as this was provided after reviewing all pertinent records, substantiated by concrete factual findings. With regards to the other diagnosis provided for his bilateral feet condition during the appeal period plantar fasciitis, which concerns inflammation of the tissue that connects the heel the Board points out that this condition was not shown during service. The Board reiterates that the Veteran's service treatment records are silent as to any complaints, treatments, or diagnosis related to feet, other than pes planus noted on the pre-induction examination. He also denied any feet issues during the August 2003 separation examination. There is also no persuasive evidence of post-service foot-related complaints for several years. In fact, it appears there is only a single complaint of "pain in the forefeet for years" from January 2020, during which time he was noted to have only "foot pain" and "tenderness to palpation along the ball of his foot bilaterally with no foot deformity, no erythema or swelling." Subsequent VA treatment records document "extremities: no cramping in feet" (August 2020 VA treatment records) and "no tingling or numbness over feet" (February 2021 VA treatment records). As there were no foot-related complaints (other than the one-time report made during January 2020 for forefeet pain) or history provided, there is no persuasive evidence of foot symptoms during or after service that could link any diagnosed foot condition other than pes planus, such as plantar fasciitis, to his military service. The Board also considered the Veteran's contention that his feet condition is related to service. He is competent to report in-service events and symptoms, as well as current symptoms such as pain. However, neither he nor his VSO is competent to provide a medical etiology opinion, as such requires a complex medical knowledge and training. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While competent, his statements are not credible for the reasons discussed above. As such, the preponderance of the evidence is against service connection for bilateral feet condition. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran's claim must be denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.