Citation Nr: 21069650 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 14-40 282A DATE: November 19, 2021 ORDER Entitlement to service connection for bilateral hip condition is granted. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for bilateral shin splints is remanded. Entitlement to service connection for bilateral ankle condition is remanded. FINDING OF FACT The probative evidence of record is in relative equipoise that the Veteran's bilateral hip conditions are related to her active-duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hip condition have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1978 to May 1978. In November 2017, the Veteran was provided a hearing with the undersigned Veterans Law Judge, and a transcript of the proceeding is of record. Most recently, a June 2019 Board decision denied the Veteran's claim for service connection for bilateral pes planus. In January 2021, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The Court reversed the Board's decision in part and remanded in part. First, the Court found that the Board failed to rebut the presumption of soundness, and therefore, reversed the Board's determination that the presumption of soundness was rebutted. The Court then directed the Board to enter a finding that the presumption of soundness still applies and was not rebutted. Second, the Court remanded the remaining elements of service connection for the Board to consider and readjudicate. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Entitlement to Service Connection: Bilateral Hip Condition The Veteran contends that she currently suffers from a bilateral hip condition that is related to her active-duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with degenerative arthritis of the right hip and trochanteric pain syndrome of the left hip. Further, the Veteran's records show she complained of left leg pain in April 1978. Thus, the issue turns upon whether there is evidence of a nexus between the claimed in-service event or injury and the present disability. See Sheldon v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In February 2020, the Veteran attended a VA examination. The examiner opined that the Veteran's condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that an April 1978 service treatment record documented bilateral leg and bilateral tibial tenderness. The examiner explained that the Veteran's VA treatment records and private medical records continued to document for ongoing bilateral hip and shin splints. The examiner discussed the Veteran's chiropractor history noting the Veteran has had a history of leg pain. The examiner found the evidence does not demonstrate the Veteran had the condition prior to her service or that a new and separate condition has evolved with the same medical presentation. The examiner lastly noted that given the totality of the evidence, the claimed condition is at least as likely as not related to her service. Therefore, the Board finds the February 2020 VA opinion to be of significant probative value in determining the Veteran's bilateral hip conditions are related to her active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the examiner showed knowledge of the Veteran's background and based the opinion on the Veteran's lay contentions, the physician's medical knowledge, review of her records, as well as examination of the Veteran. Additionally, the opinion rendered is consistent with the medical evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Accordingly, the Board concludes that the probative evidence of record is for the claims and the benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board sincerely regrets further delay, another remand is required to afford the Veteran every possible consideration. 1. Entitlement to Service Connection: Bilateral Pes Planus The Veteran contends that her bilateral pes planus is related to her active-duty service. In accordance with the Court's decision, the Board finds that based on the evidence of record, it is not clear and unmistakable that the Veteran's bilateral pes planus was a pre-existing condition, and therefore, the presumption of soundness remains attached. As such, the Board finds that an opinion that considers direct service connection must be obtained. The Board recognizes that a February 2011 VA opinion provided a positive nexus opinion for the claimed condition. However, the examiner noted that the Veteran's record was not reviewed in providing the opinion, as well as the examiner did not provide an actual rationale. Further, an April 2013 VA opinion was based on whether the Veteran's condition was a pre-existing condition. Therefore, the Board cannot put probative weight to either of the opinions. Thus, the Board finds that a remand is required in order to obtain a new opinion on the etiology of the claimed condition. 2. Entitlement to Service Connection: Bilateral Shin Splints and Bilateral Ankle Conditions The Veteran contends that her bilateral shin splints and bilateral ankle conditions are related to her active-duty service. The Board notes that the Veteran has often reported that her bilateral shin splints, and bilateral ankle conditions are related to her bilateral pes planus. Although VA opinions were provided in February 2020 on the claimed conditions, neither opinion addressed secondary service connection. Therefore, the Board finds the above conditions are inextricably intertwined with her claim for bilateral pes planus and therefore, must be remanded along with the bilateral pes planus claim for opinions on secondary service connection. The matters are REMANDED for the following action: 1. Obtain and associate with the electronic file any outstanding VA treatment records relevant to the Veteran's claims. 2. Then, send the file to an appropriate examiner to determine the etiology of the Veteran's bilateral pes planus, bilateral ankle conditions, and bilateral shin splints. The record and a copy of this Remand must be made available to the examiner. Following review of the entire record, to include the Veteran's competent lay statements, as well as the Veteran's documented reports regarding the onset and progression of her current symptomatology the examiner should opine as to the following: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral pes planus is related to her period of active service, to include her April 1978 in-service complaints of arch pain and the May 1978 diagnosis of severe pes planus? (b) Is it at least at least as likely as not (50 percent probability or more) that the Veteran's bilateral ankle condition and bilateral shin splints are due to her bilateral pes planus? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral ankle condition and bilateral shin splints are aggravated by her bilateral pes planus, to include any abnormal gait caused by the condition and/or medications taken for the condition? "Aggravation" is defined as any worsening beyond the natural progression of the disability. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.