Citation Nr: 21071358 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-15 399A DATE: November 30, 2021 ORDER Entitlement to service connection for right knee arthritis is denied. Entitlement to service connection for bilateral plantar fasciitis and bilateral calcaneal heel spurs is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease is remanded. Entitlement to service connection for a right wrist condition is remanded. Entitlement to service connection for a lumbar spine condition is remanded. Entitlement to service connection for a bilateral toenail condition, claimed as bilateral ingrown toenails, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a connection between the Veteran's currently diagnosed right-knee arthritis and any injury, disease, or event during the Veteran's service periods. 2. The evidence is insufficient to establish that the Veteran has a current disability of plantar fasciitis. 3. The evidence is insufficient to establish that the Veteran's current bilateral heel spurs were directly caused by any period of service before his May 2012 to October 2012 deployment. 4. The evidence clearly and unmistakably establishes that the Veteran's current bilateral heel spurs existed prior to his May 2012 to October 2012 deployment and that the heel spurs were not aggravated during service in May 2012 to October 2012. CONCLUSIONS OF LAW 1. The criteria for service connection for right-knee arthritis have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). 2. The criteria for service connection for bilateral plantar fasciitis and bilateral heel spurs have not been met. 38 U.S.C. §§ 1110, 1111, 1131; 38 C.F.R. §§ 3.303, 3.304(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably, including active duty periods from March 1977 to February 1988, January 1993 to February 1993, March 2006 to July 2006, and May 2012 to October 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at an October 2019 hearing. The Veteran seeks service connection for conditions of his right knee and bilateral feet, which will be adjudicated now. The remainder of the service-connection claims will be discussed in the Remand section below. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires 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 event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be presumed if a chronic disease manifests itself and is identified as such in active-duty service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013; see also Smith v. Shinseki, 24. Vet. App. 40, 47, 47 n.4 (2010). Arthritis is among the chronic diseases listed in 38 C.F.R. § 3.309(a). For a condition that may have preexisted service, if the condition is not noted at the time of entrance, then the Veteran is presumed sound unless there is clear and unmistakable evidence that (1) the disability existed prior to service and (2) the preexisting disability was not aggravated during service. If these two elements are shown, the presumption of soundness does not apply and service connection cannot be granted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 1. Right Knee The Veteran seeks service connection for a right knee condition. He explains that during service in the summer of 2012, while training for a half-marathon his knee began hurting to the point he could not run anymore. Alternatively, the Veteran remembers playing tennis while on active duty in 1982, injuring his leg, and being put in a cast for three or four weeks and placed on light duty. After review of the evidence of record, the Board finds that the weight of the evidence is against a connection to service. First, the evidence establishes that the Veteran currently has degenerative arthritis of the right knee. X-ray imaging at an April 2015 VA examination found "minimal/early degenerative changes," and an x-ray in connection with the February 2021 VA examination provided on remand found "minimal patellofemoral degenerative changes." Though the April 2015 examiner ultimately concluded that because the arthritis "is very slight and is within the variation of normal [and] certainly consistent with age 57" the Veteran "has no disability," the Board finds that for purposes of establishing service connection the evidence is sufficient to establish that the Veteran does have a disability of arthritis in the right knee. The Board further finds, however, that the preponderance of the evidence is against a connection between the Veteran's current disability and his service. The April 2015 VA examiner, as stated, attributed the Veteran's condition to age rather than to an in-service injury, disease, or event. Moreover, at the February 2021 examination the Veteran related to the examiner the details of both the 1982 and 2012 incidents involving his leg and knee, and after the examiner's review of the Veteran's history she found it less likely than not that the Veteran's current arthritis was incurred during any period of service, within one year after any separation, or otherwise related to his service to include. The Veteran's injury while training for a marathon in 2012 is acknowledged. October 2012 private treatment records reflect that, based on x-rays at that time showing no abnormality as well as the Veteran's reported history of the injury, the private provider offered an assessment of patella tendonitis. During the course of the Veteran's current claim for service connection, however, treatment records do not support that the Veteran has a current diagnosis of patella tendonitis, and without evidence of a current disability, service connection for patella tendonitis is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, the February 2021 VA examiner noted the prior diagnosis of patella tendonitis in 2012 and specifically opined that this prior condition "is unrelated" to the Veteran's currently diagnosed arthritis. Accordingly, as the weight of the evidence does not support a nexus, either presumed or directly found, between the Veteran's current right-knee arthritis and any of the Veteran's service periods, service connection for right-knee arthritis must be denied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). 2. Bilateral Foot Conditions The Veteran seeks service connection for bilateral plantar fasciitis and bilateral heel spurs, which he asserts are due to service due to having had various problems with his feet throughout his military career. After review of all the evidence, the Board finds that service connection is not warranted for either condition. a. Plantar Fasciitis Regarding plantar fasciitis, the evidence is not sufficient to establish that the Veteran has a current diagnosis of plantar fasciitis. At an April 2015 examination, based on physical examination and imaging at that time the Veteran was found not to have a diagnosis of plantar fasciitis. Following the Board's prior October 2020 remand, a new VA examination for the feet was provided in February 2021, and after examination the clinician found that the Veteran did not have symptoms that would indicate the presence of plantar fasciitis. The Board notes a private treatment record from Dr. L.B. in April 2012, a month before the Veteran's deployment from May to October 2012, which recorded the Veteran reporting heel pain with "2 weeks gradual onset," diagnosed as achilles enthesopathy and plantar fasciitis. Notwithstanding this record of a diagnosis of plantar fasciitis close in time to a period of service, in order to establish entitlement to service connection there must be evidence of a current disability at the time of the Veteran's claim or during the course of the appeal period. Without evidence of a current disability, service connection for plantar fasciitis must be denied. Brammer, 3 Vet. App. at 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."). b. Heel Spurs Regarding heel spurs, at the February 2021 VA examination, imaging and physical examination confirmed the Veteran is currently diagnosed with bilateral calcaneal heel spurs. Thus, the question is whether the condition is connected to the Veteran's service. See 38 C.F.R. § 3.303(a). On this element of a nexus to service there are two separate inquiries, because the April 2012 diagnosis from Dr. L.B. of bilateral achilles enthesopathy raised the issue of whether the Veteran's heel spurs preexisted his May-to-October 2012 active-duty period of service. Regarding the 2012 service period, the February 2021 examiner was asked whether the Veteran's condition clearly and unmistakably preexisted the service period and found that it did. The examiner further found, however, that the Veteran's heel spurs clearly and unmistakably were not aggravated during his 2012 period of service, based on the absence of any evidence to support such an aggravation. On the Board's review of the evidence, to include the February 2021 examiner's opinion, the Board agrees that the evidence clearly and unmistakably supports that the Veteran's heel spurs preexisted but were not aggravated during his service from May to October 2012. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Regarding the Veteran's service periods before his 2012 service period, the February 2021 examiner reviewed the Veteran's medical history, including his report of visiting a podiatrist in 2006, and reviewed his treatment records. Ultimately, the examiner opined that there was an absence of evidence to support that the Veteran's heel spurs were incurred in service or otherwise related to a period of service. Based on this opinion, and review of the remainder of evidence, the Board finds that there is insufficient evidence to support that the Veteran's current heel spurs are directly connected to his service periods before 2012. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. For both periods of service, the Veteran has argued that service connection is warranted because he experienced many problems with his feet during his military career, and he stated at the October 2019 Board hearing that he believes the service treatment records should show that he sought treatment for foot pain or heel pain. The Board acknowledges that the service treatment records do contain many reports of the Veteran seeking treatment for foot problems; however, a review of those records shows that the foot problems were for conditions different than the current heel spurs for which the Veteran seeks service connection. For example, on an August 1983 report of medical history, the Veteran answered "Yes" to whether he had ever had trouble with his feet, but it was explained that foot trouble referred to an ingrown toenail removal and Athlete's foot. A September 1983 treatment note found "dishydrosis" of both feet. The Veteran reported at the Board hearing that he sought treatment for his feet in 2006, and while there is a May 2006 service treatment record corroborating this visit, the note wrote that the issue was a rash on both feet that was diagnosed as Athlete's foot. Thus, while the service treatment records do show the Veteran experienced various problems with his feet during service, because the problems for which the Veteran sought treatment do not relate to the current heel spurs for which the Veteran seeks service connection, the service treatment records are of less probative value for establishing that the current heel spurs are related to service. Because the evidence is insufficient to establish that the Veteran's heel spurs are connected to any period of service, service connection for heel spurs must be denied. 38 U.S.C. §§ 1110, 1111, 1131; 38 C.F.R. §§ 3.303, 3.304(b). REASONS FOR REMAND Unfortunately, Board finds remand is required for the Veteran's claims for service connection for GERD, a right wrist condition, a lumbar spine condition, and a bilateral toenail condition. Though the VA examinations and opinions directed by the Board's prior October 2020 decision were provided in February 2021, the Board finds that they are inadequate or did not sufficiently address the questions asked. 3. GERD Regarding service connection for an esophageal condition to include GERD, the Board finds that the February 2021 opinion did not adequately address the questions directed to the examiner in the Board's prior remand. First, the examiner was asked to state whether the Veteran has a current diagnosis of GERD; the examiner's report checked the box for a diagnosis of GERD and offered 2015 as the date of diagnosis but noted in her opinion that a "Barium swallow on 4/29/2015 . . . did not demonstrate any signs of significant reflux; however, reported symptoms were treated with medications to treat GERD including Nexium and Prilosec." A prior April 2015 VA examiner interpreted the April 2015 barium-swallow results as an indication that the Veteran did not have a diagnosis of GERD at that time. Thus, the February 2021 opinion has not clearly addressed whether the Veteran has had a diagnosis of GERD now or since his appeal began in January 2014. Second, the examiner was asked to opine whether, if the Veteran did have a confirmed diagnosed of GERD at any time during the appeal period, the condition was at least as likely as not related to his service, with specific consideration given to the Veteran's testimony that following his first deployment in 1993 a doctor prescribed PPIs and diagnosed him with GERD. Though the February 2021 examiner's opinion did acknowledge the Veteran's testimony, it ultimately found a connection less likely than not because "[t]he VA medical records are not supportive of any injury resulting in the claimed diagnoses. . . . [T]he VA medical records are not supportive of any symptoms or treatments while in the military. Records from the period of 1977 to 2012 do not demonstrate that the Veteran had GERD or was given resulting medication." This opinion impermissibly excluded from consideration the Veteran's competent testimony that following his 1993 deployment he had esophageal symptoms, sought treatment, and was prescribed PPIs and offered a diagnosis of GERD. Dalton v. Nicholson, 21 Vet. App. 23, 39, 40 (2007). Moreover, the opinion failed to consider, as directed by the Board's prior decision, a September 2003 impression from a Dr. B.S. that the Veteran had GERD. Dyment v. West, 13 Vet. App. 141, 14647 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Given these deficiencies, remand is required in order to provide the Veteran with a new examination. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 4. Right Wrist Regarding service connection for a right wrist condition, at the February 2021 examination the examiner noted that during service in 1989 the Veteran fell and jammed his right wrist while playing softball, went to the emergency room, and was put in a splint for approximately five weeks; moreover, the Board's prior remand directed the examiner to consider and discuss service treatment records from 1989 showing the Veteran was treated for a right wrist sprain. In the February 2021 examiner's ultimate opinion, however, she simply stated that "[t]he Veteran reported right wrist pain after playing softball. The VA medical records are not supportive of any injury resulting in the claimed diagnoses." This opinion failed to provide adequate reasoning in light of the acknowledged magnitude of the Veteran's injury (that is, requiring a splint for approximately five weeks) and, by finding the "records are not supportive of any injury," failed to discuss the service treatment record diagnosing the Veteran with a right wrist sprain. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board also notes the February 2021's examiner remark that the Veteran did not have a current right wrist condition at the time of the examination, based upon January 2021 x-rays finding the right wrist normal. The February 2021 examiner's report, however, noted a diagnosis of degenerative arthritis in 2015, and of record is an April 2015 x-ray with an impression of mild degenerative changes. Thus, even if the Veteran's condition has since improved or resolved during the duration of his appeal, service connection is still available for the diagnosed disability earlier in the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement for a current disability is satisfied where the evidence shows the Veteran had a disability at any time during the pendency of his claim). 5. Lumbar Spine Regarding service connection for a lumbar spine condition, the Board's prior October 2020 decision directed for an etiology opinion that specifically considered a treatment note the same day as the Veteran's alleged August 1991 injury, a 1992 periodic examination that recorded intermittent back pain in 1991, and a July 1995 report of medical history on which the Veteran answered "Yes" to whether he at that time or ever before had recurrent back pain. Though a new examination and opinion were provided in February 2021, the examiner did not discuss any of this evidence. Therefore, remand is required to ensure substantial compliance with the Board's prior decision. See Dyment v. West, 13 Vet. App. 141, 14647 (1999). Additionally, the February 2021 examination report listed a diagnosis of degenerative arthritis since 2015. In the examiner's opinion, however, she added that based on examination and imaging the Veteran had "probable neural foraminal stenosis." The Board notes that the August 1991 treatment record from the day of the Veteran's injury (which the examiner did not discuss) provided a diagnosis of "acute LSSS." Given the examiner's statement that the Veteran currently has "probable neural foraminal stenosis" and the August 1991 treatment note diagnosing the Veteran with what may have been lumbosacral stenosis, the Board will direct for the addendum opinion to discuss this potential connection. See Nieves-Rodriguez, 22 Vet. App. at 302; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, with respect to the lumbar spine condition, the Board notes that as directed by the prior remand, records of the dates of the Veteran's Reserve service were developed by the RO and uploaded into the claims file. None of these records, however, were more specific than the Veteran's combined annual active or inactive duty for training in 1991, and therefore the Board will direct for attempts to verify whether the Veteran was at training on August 10, 1991, the date of his back injury. 6. Bilateral Toenails The Board's prior decision directed for an examination to consider whether the Veteran has any residuals of his in-service bilateral toenail conditions and surgical procedures. Though an examination was provided for the Veteran's feet in February 2021, the clinician stated that any toenail condition was outside the scope of that examination and therefore declined to render any diagnosis for the toenails. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board will remand for an examination. Id. The matters are REMANDED for the following action: 1. Undertake appropriate attempts to obtain personnel records verifying, or to otherwise verify, the Veteran's ACDUTRA or INACDUTRA service on August 10, 1991. 2. Schedule the Veteran for an examination regarding the nature and etiology of any esophageal condition, to include GERD. The examiner must answer all of the following: (a) Assess the Veteran for and, if warranted, diagnose the Veteran with any esophageal condition since January 2014, to include GERD. Regarding GERD, discuss a September 2003 impression (uploaded into the virtual record 5/16/2014) from Dr. B.S. of GERD at that time. (b) For any diagnosed condition since January 2014, is it at least as likely as not that the condition was incurred in or is otherwise related to the Veteran's service, to include his deployment in 1993? Consider and discuss the Veteran's testimony that he first began experiencing symptoms around 1993 after deployment in Saudi Arabia; that several months later he began having bloating, gas, heartburn, and reflux; and, that between 1993 and 2006 a doctor put him on different PPIs. (c) If no diagnosis may be made for the Veteran's symptoms since January 2014, is it at least as likely as not that the Veteran has an undiagnosable esophageal condition and/or has an esophageal chronic multisymptom illness without medical explanation? (An opinion must be provided even if the symptoms of the Veteran's condition are currently well controlled.) 3. Obtain an addendum opinion regarding the etiology of the Veteran's right wrist condition, to include diagnosed arthritis in approximately April 2015. The clinician must opine whether it is at least as likely as not that the diagnosed arthritic condition was incurred within 1 year of any period of active-duty service period or is otherwise related to the Veteran's service. In rendering his or her opinion, the examiner must specifically consider and discuss (i) service treatment records from 1989 documenting that the Veteran had a right wrist sprain; (ii) the Veteran's statements that following the 1989 injury in which he fell and jammed his wrist playing softball, he went to the emergency room and was put in a splint for approximately five weeks; and, (iii) the Veteran's testimony that he has had problems on and off since then including pain in his hand and fingers. 4. Obtain an addendum opinion regarding the Veteran's lumbar spine. If possible, obtain the opinion from the author of the February 2021 examination report and opinion. It is left to the clinician's discretion whether a new examination is needed. (a) The clinician must opine whether the Veteran at least as likely as not has a diagnosis of stenosis in the lumbar spine either currently or at any time since January 2014. Consider and discuss the February 2021 examiner's remark that the Veteran has "probable foraminal stenosis." (b) For any condition the Veteran has been diagnosed with currently or since January 2014, to include already-diagnosed degenerative arthritis, the clinician must opine whether the condition at least as likely as not is related to the Veteran's August 1991 injury when lifting 25-pound equipment. The examiner must consider and discuss (i) an August 10, 1991 treatment note on the day of the injury assessing the Veteran with "acute LSSS"; (ii) an April 1992 periodic examination that recorded intermittent back pain in 1991; and, (iii) a July 1995 report of medical history on which the Veteran answered "Yes" to whether he at that time or ion the past had recurrent back pain. 5. Schedule the Veteran for an examination regarding the nature and etiology of any condition of the toenails of both feet. The examiner must answer all of the following questions: (a) Does the Veteran currently have a diagnosable condition of any toenail or any toenail symptomatology that creates functional impairment? (b) If the Veteran does have a current condition of a toenail, is the condition at least as likely as not related to the in-service ingrown toenails, and/or in-service toenail infections, and/or in-service toenail surgeries? (c) If the Veteran does have a current condition of the left great toenail, is the condition at least as likely as not related to the surgery to remove the left toenail? If so, was the left toenail removal surgery at least as likely as not related the Veteran's in-service ingrown left toenails, and/or in-service left toenail infections, and/or in-service left toenail surgery? K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.