Citation Nr: 21069978 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-01 923 DATE: November 22, 2021 ORDER Entitlement to service connection for a left ankle disability is dismissed. Entitlement to service connection for a right ankle disability is dismissed. Entitlement to service connection for a jaw disability is denied. Entitlement to service connection for a right foot disability is granted. FINDINGS OF FACT 1. The Veteran's claim of service connection for a left ankle disability was granted in an August 2021 rating decision. The Veteran has not submitted a statement contesting the disability evaluation or effective date assigned. 2. The Veteran's claim of service connection for a right ankle disability was granted in an August 2021 rating decision. The Veteran has not submitted a statement contesting the disability evaluation or effective date assigned. 3. The preponderance of the evidence is against finding that a jaw disability began during active service, or is otherwise related to an in-service injury or disease or aggravated by military service. 4. The Veteran's pre-existing right foot disability was aggravated by her military service. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for a left ankle disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of entitlement to service connection for a right ankle disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to service connection for a jaw disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for a right foot disability have been met. 38 U.S.C. §§ 1110, 1131, 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 October 2001 to March 2002 and from May 2008 to March 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board issued a remand in September 2019 instructing the RO to obtain VA examinations to determine the nature and etiology of the Veteran's disabilities. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained March 2021 VA examinations and April 2021 medical opinions. The Board finds the RO substantially complied with the September 2019 remand directives. 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a right ankle disability. In September 2019, the Board remanded the claims for a VA examination to determine the nature and etiology of the Veteran's left and right ankle disability. While on remand, the Veteran was awarded the grant of service connection for left and right ankle disability in an August 2021 rating decision. As this represents a full grant of the benefit sought, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Furthermore, the Veteran has not expressed disagreement with either the disability evaluation or effective date assigned. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Pursuant to applicable law and regulation, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.202. As the August 2021 rating decision granted the Veteran's claims for service connection for left and right ankle disability, these specific issues certified to the Board have become moot. There are no remaining allegations of error of fact or law for appellate consideration as to these certified issues such that the Board has no jurisdiction to review them. Therefore, the claims for entitlement to service connection for left and right ankle disability are dismissed. Service Connection Service connection may be granted for a 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection requires: (1) a service-connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. § 3.310. 3. Entitlement to service connection for a jaw disability. The Veteran contends that she experienced jaw pain related to a jaw surgery that she underwent in active service. See generally, January 2017 Informal Hearing Presentation. The Veteran provided a VA treatment print out that indicated that the Veteran had a surgical history of an overbite. The Veteran stated in the margin of a January 2015 VA printout that she had surgery in 2009 while on active duty and there was metal dislodged from original surgical site. Civilian records and service treatment records (STR) indicate the Veteran had a dental condition that required surgery. See e.g., October 2004 Medical review (reported that she was seen by an oral surgeon soon, teeth need to be pulled and jaws realigned); January 2007 Report of Medical-Examination (braces on mouth); 2009 service dental records (no complications noted in the records). In addition, a September 2012 VA treatment record indicated the Veteran had lower jaw surgery for overbite in 2009. In 2015, the Veteran sought medication attention because the began to have pain in her jaw. During a September 2015 consultation, the Veteran reported pain her jaw and the provisional diagnosis was disorder of the jaw. Pain was caused by migration of the screw on the left side of the jaw. The Board remanded the claim to obtain a VA examination to determine if the Veteran's in-service surgery aggravated her condition. A medical opinion was obtained in February 2021. The Veteran was diagnosed with arthralgia of temporomandibular joint. The Veteran reported that she had elective jaw surgery while in active duty to correct an overbite. She stated her bilateral jaw discomfort started 4-5 months after that. Pain was worse bilaterally in the angle of her mandible where 2 screws were placed during her surgery. She complained in the past of feeling a loose screw on the left side of her jaw. October 2015 radiographic analysis verified that a bone screw had migrated to the ascending anterior ramus on the left side and recommended that the screw be surgically removed. The Veteran states that the screw was never removed and there was no documentation indicating that it ever was. The examiner opined that the Veteran's jaw disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had elective jaw surgery in 2009. Although she was in active duty at the time, the procedure was performed to correct her severe overbite, which was a congenital defect. She had several teeth extracted by her private dentist and a maxillary partial denture fabricated. The Veteran stated this occurred after her orthodontist removed her braces for not following through on treatment, which more likely than not suggested neglect on Veteran's part. On December 5, 2013, her jaw condition was deemed not service related but instead due to existing congenital and developmental abnormalities. The Veteran's physical exam and the verbal history given confirmed this finding. The Board acknowledges the Veteran's contentions that her current jaw disability is related to surgery she had in service. A layperson is competent to report observable symptomatology which comes to her via her senses. See Barr v. Nicholson, 21 Vet. App. 303, 308 (U.S. 2007). However, some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. Layno v. Brown, 6 Vet. App. 465, 470 (U.S. 1994). A lay person is not considered competent to medically attribute a jaw disability, such as arthralgia of temporomandibular joint, to surgery performed for an overbite as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the objective medical evidence of record answered this question. The evidence showed the Veteran underwent an elective surgery to correct a congenital defect. There were no complications of the surgery. She started seeking treatment for a jaw condition in 2015 which was approximately three years after discharge from service and six years after the 2009 surgery. The medical opinion of record did not support a finding that the Veteran's military service caused or aggravated the Veteran's jaw disability. The Veteran has not submitted any medical opinions to contradict this finding. Accordingly, the criteria for entitlement to service connection for jaw disability have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for jaw disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to service connection for a right foot disability. The Veteran contends that her right foot disability was caused by her military service. Alternatively, she contends her right foot disability is secondary to her ankle disabilities. The Board noted her automated problem list while on active duty indicated joint instability of the ankle and foot. See September 2019 Board remand. The Veteran was granted service connection of her left and right ankle disabilities in an August 2021 rating decision. The February 2001 service entrance examination includes a notation that the Veteran had abnormal feet upon entering service. As a defect is noted on entry, the presumption of soundness does not apply in this case. 38 U.S.C. § 1111. A December 2012 post-service treatment record indicated the Veteran complained of right foot pain after recent right foot trauma. See also October 2012 VA treatment record (fracture and multiple sprains to right foot). The Veteran underwent a VA examination in March 2021. She was diagnosed with pes planus, plantar fasciitis, hammer toe, and pes cavus. She reported that she was issued boots that were too small in basic training. She initially experienced foot pain, ankle sprain, and arches failing. Her past treatment included prescriptive shoes, braces, inserts, a cane, and surgeries on the ankles. She reported that she currently experienced symptoms of pain, swelling in both feet. In March 2021, the examiner provided an initial medical opinion in support of the Veteran's claim, but also indicated on the examination that she opined the Veteran's claimed condition was less likely than not (less than 5 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained the enlistment examination indicated that the Veteran had been diagnosed with pes planus on enlistment, and notation concerning her playing Volleyball without difficulty and no boot issues. Additional retention exams and Health assessments do not contain reference to the veteran's feet at all until a Periodic Health Assessment in 2010 that mentions repeated ankle sprains, wrong size boots and shin splints. It was during this time, that the Veteran was having significant issues with her feet and ankles, multiple temporary profiles were issued and the Veteran was on Deployment to Germany. Currently, the Veteran has significant issues with her bilateral feet and ankles as evidenced by the Medical record. Based upon this evidence in the medical record, it is the opinion of this reviewer that the claimed condition, bilateral foot disability that is at least as likely as not 50 percent or greater probability incurred in or caused by the treatment during service and the condition pes planus was aggravated beyond its natural progression by the Veteran's military service. An additional medical opinion was offered specifically for the right foot condition in April 2021 (signed May 20, 2021). The examiner opined that the Veteran's right foot condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service injury, event, or illness. The Veteran was in service from October 17, 2001 to March 12, 2002 and May 24, 2008 to March 5, 2010. The Veteran enlisted with mild asymptomatic pes planus of the right foot. Podiatry notes from an examination in August 2008 states the Veteran had a painful lesion on left foot but no fallen arch or pes planus. According to service treatment records, July 2008 examination noted flat feet and pronation problems. The claimant stated her arches fell in AIT training and she wears inserts for running shoes but not boots. Provider notes from November 2010 examination wrote that the arch collapsed due to wrong size boots. An August 2016 Orthopedic Surgery note minor aches and soreness. A September 2019 physical therapy note stated the Veteran presented with significant bilateral pes planus. Examination during and after service showed the claimant's right foot pes planus became worse over service and started off mild but now significant. Therefore, it is my clinical opinion that the Veteran's right foot pes planus is at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression, or subject to a superimposed injury that resulted in additional disability due to the veteran's service. This opinion is formed based on this in person examination as well as review of the claimant's VA e-folder, including but not limited to the documents listed above. The Board finds that entitlement to service connection for right foot disability is warranted. STR showed the Veteran had an abnormal foot condition upon entrance into service. Records also indicated the Veteran experienced multiple injuries after service and issues with her arch inservice. In addition, the medical opinions of record indicate the Veteran's right foot disability was aggravated by her in-service injury. Evidence of record shows the Veteran has a current disability, a pre-existing condition, and aggravation of the injury while in service. Therefore, the entitlement to service connection for right foot disability is granted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.