Citation Nr: 21068883 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 19-37 221 DATE: November 15, 2021 ORDER Entitlement to service connection for vertigo to include benign paroxysmal positional vertigo, is denied. Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for bilateral bone spurs, claimed as secondary to bilateral pes planus is denied. FINDINGS OF FACT 1. The Veteran's BPPV is not caused by, or aggravated by his service-connected bilateral hearing loss and/or his service-connected tinnitus. 2. The Veteran's bilateral pes planus pre-existed his military service, and was not aggravated beyond the natural progression of the disease by his service. 3. The Veteran's bilateral bone spurs are not caused by, due to, or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for vertigo to include benign paroxysmal positional vertigo (BPPV), are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection bilateral pes planus are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for bilateral bone spurs, to include as secondary to service-connected disability, are not met. 38 U.S.C. § 5107 ; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from May 1961 to September 1964. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) April 2017 rating decision of the Agency of Original Jurisdiction (AOJ). In March 2021, in pertinent part, the Board remanded the above claims for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with those specific remand directives. Moreover, on remand, the AOJ granted service connection for gastroesophageal reflux disease and hiatal hernia as well as hiatal hernia repair incision scar. See August 2021 rating decision. Thus, as this is a full grant of the claim sought, those issues are no longer before the Board for adjudication. SERVICE CONNECTION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, 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 ; 38 C.F.R. § 3.306 (a). The Veteran bears the burden of showing that the preexisting condition worsened in service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Until the Veteran shows an increase in disability occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Id; see also Horn v. Shinseki, 25 Vet. App. 231 (2011). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for vertigo, diagnosed as benign paroxysmal positional vertigo The Veteran claims that his BPPV is caused by, or otherwise aggravated by, his service-connected bilateral hearing loss and tinnitus. See October 2020 Correspondence. The Veteran has a current diagnosis of benign paroxysmal positional vertigo, and his bilateral hearing loss and tinnitus have been determined to be service-connected. Therefore, the first two Wallin elements necessary to establish service connection on a secondary basis have been met. What is left for the Board to determine is whether there is a connection, or nexus, between his BPPV and his service-connected hearing difficulties. In March 2017 the Veteran was seen for a VA examination to determine the etiology of his BPPV. According to the examiner, it "is less likely than not due to or the result of" the Veteran's service-connected hearing disabilities (to include tinnitus). The examiner based the opinion on the fact that "there is no objective data in the medical literature that provides evidence of a causal relationship between BPPV and hearing loss or tinnitus." Furthermore, as the Veteran's BPPV developed "approximately 44 years" after his separation from military service, the examiner concluded that neither the Veteran's active-duty service or his service-connected hearing disabilities were the cause of his BPPV. The Board notes, as the Veteran's representative correctly points out in her October 2020 correspondence, that the March 2017 examiner failed to address whether the Veteran's hearing disabilities aggravated his BPPV. While this means the March 2017 examiner's opinion is incomplete and, thus, inadequate to be relied upon for adjudication, the Board finds no reason to question the examiner's competency or credibility regarding the opinions provided regarding the lack of a causal relationship between the Veteran's BPPV and his hearing disabilities. Per the Board's March 2021 remand, in May 2021 the Veteran was seen for another VA examination to determine the etiology of his BPPV. The examiner explained that, based on "established medical knowledge and practice" there is "no association either as to cause or aggravation" between the Veteran's BPPV and his sensorineural hearing loss and/or his tinnitus. The examiner conceded that there are some ear disabilities that have vertigo as a symptom and may be related to hearing loss and/or tinnitus, but the Veteran does not have any of those types of conditions. In conclusion, the examiner explained that there "is no evidence of aggravation of the Veteran's vertigo," and that "it is not caused ... by or due to the Veteran's tinnitus and hearing loss, nor can it be aggravated by those conditions." The Board finds that the competent and credible medical evidence on file shows that the Veteran's BPPV is not caused by, or aggravated by, either his service-connected tinnitus or his service-connected bilateral hearing loss. Thus, the third Wallin element necessary to establish service connection has not been met. The Veteran's claim is denied. For the above-stated reasons, the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 2. Entitlement to service connection for bilateral pes planus The Veteran claims that his bilateral pes planus, also known as flat feet, were aggravated beyond the natural progression of the disease in service. The Veteran's service treatment records (STRs) show that the condition clearly and unmistakably pre-existed prior to his active-duty service. His May 1961 enlistment physical noted that the Veteran had flatfeet ("PP3"), and also indicated that the condition was asymptomatic and not considered disqualifying. The Board notes that at his August 1964 separation examination, the Veteran denied experiencing any "foot trouble." In May 2017 the Veteran was seen for a VA examination to determine whether bilateral pes planus was aggravated beyond the natural progression of the disease by his active-duty service. The examiner noted that the Veteran's condition "has stayed the same" since his time in the military. Overall, the examiner found that "there is no supporting evidence" that the Veteran's pre-existing pes planus "worsened as a result of" his military service. This opinion was based on an in-person examination (and interview) of the Veteran and a review of the Veteran's claims file. The Veteran has alleged that his condition has worsened due to his military service. However, such a finding is a complex medical determination that can only be made by a qualified medical practitioner. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In an April 2019 hearing before a Decision Review Officer (DRO), the Veteran claimed that Dr. W., a non-VA physician treating the Veteran, found that the Veteran's service aggravated his pes planus. In an October 2020 letter, the Veteran's representative noted that the eventual development of bone spurs "reflects the worsening" of his pes planus. The Board notes that the Veteran's private treatment records, including but not limited to Dr. W.'s treatment records, are not associated with the claims file. In March 2021, the Board remanded the Veteran's claim for additional development. Part of the requested development was that the Veteran either provide Dr. W.'s treatment records, or submit the necessary release authorization to allow VA to obtain the records on his behalf. Following the Board remand, in March 2021 the AOJ sent a letter to both the Veteran and his representative requesting the necessary release authorizations as well as any relevant private medical records the Veteran has in his possession. The Board finds that the combination of the remand directives, received by the Veteran and his representative, and the following letter from the AOJ requesting the necessary information to develop the claim, fulfills VA's duty to assist. The Board reminds the Veteran that the duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the instant case, the Board has requested from the Veteran either medical records relating to his post-service ankle surgery, or that he submit the necessary medical release authorizations so the AOJ can attempt to obtain them on his behalf. The Board finds that the Veteran has failed to meet his duty to assist. The Board finds that the competent, credible, and probative evidence on record establishes that the Veteran's bilateral pes planus, which clearly and unmistakably predated his military service, was not aggravated beyond the natural progression of the disease. Therefore, the Veteran's claim must be denied. For the above-stated reasons, the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 3. Entitlement to service connection for bilateral bone spurs, claimed as secondary to bilateral pes planus The Veteran alleges that his bilateral bone spurs are caused by, due to, or aggravated by his bilateral pes planus. His post-service medical treatment records show a diagnosis of, and treatment for, bilateral bone spurs. As such, the first Wallin element necessary to establish service connection on a secondary basis has been fulfilled. However, as discussed above, the Veteran's bilateral pes planus has been determined to not be service connected. Furthermore, the Veteran has no other foot or leg disabilities that are the result of his military service. Therefore, the second Wallin element necessary to establish service connection on a secondary basis has not been met. Based on the above, Veteran's claim must be denied. For the above-stated reasons, the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.