Citation Nr: 21077143 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 20-09 183 DATE: December 28, 2021 ORDER Entitlement to service connection for insomnia is granted. Entitlement to service connection for right foot disabilities is denied. Entitlement to service connection for left foot disabilities is denied. Entitlement to service connection for chest disability is granted. REMANDED Entitlement to service connection for coronary artery disease (CAD) is remanded. Entitlement to service connection for whooping cough is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's insomnia had its onset during service. 2. The Veteran's current right foot disabilities did not have their onset during service, are not related to his in-service right foot disability, and are not otherwise related to service. 3. The Veteran's current left foot disabilities did not have their onset during service, are not related to his in-service left foot disability, and are not otherwise related to service. 4. The evidence is at least evenly balanced as to whether the Veteran's chest pain had its onset in service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for insomnia have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 U.S.C. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for right foot disabilities have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. 3. The criteria for entitlement to service connection for left foot disabilities have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for chest pain have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 U.S.C. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1955 to June 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2017 and December 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) which, respectively and inter alia, denied service connection for whooping cough; bilateral foot pain, coronary arteriosclerosis, chest pain, and insomnia. In April 2018 and December 2019, the Veteran filed his notices of disagreement, was issued statements of the case in January 2020, and in March 2020 perfected his appeals to the Board. In October 2020, the Board remanded the Veteran's claims for addendum opinions and new VA examinations to determine the etiology of his whooping cough, bilateral foot pain, heart disability, chest pain, and insomnia. In August 2021, the RO continued its denial of service connection for insomnia, chest pain, right foot pain, left foot pain, a heart condition, and whooping cough, notifying the Veteran in a supplemental statement of the case. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Insomnia The Veteran's January 1975 medical examination report upon retirement is normal, but it is noted on the examination report that he has had trouble sleeping since 1965. The Veteran reported on his January 1975 medical history report upon retirement that he has frequent trouble sleeping. May 2017 private treatment records indicate that the Veteran reported no sleep disturbances. April 2018 private treatment records indicate that the Veteran has a diagnosis of obstructive sleep apnea. In a September 2018 VA examination report, the examining psychologist noted that if the Veteran is diagnosed with a mental health sleep disorder, the time frame of having no treatment for such a disorder for over 40 years is such that such a sleeping disorder diagnosis could not be clinically due to, or caused by his military service. An August 2021 disability benefits questionnaire (DBQ) reflects that the examining psychologist opined that the Veteran's insomnia was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, stating that while he currently meets the criteria for unspecified insomnia disorder, his service treatment records show no findings for, or treatment for insomnia. The psychologist noted that the Veteran's medical examination report upon retirement indicates that the Veteran had trouble sleeping since 1965, with medical treatment sought, no complications and no sequalae, and that March 2016 treatment notes reflect insomnia with sleep apnea, but these were not linked to an in-service event. Veteran also indicated during his examination that he has had sleep difficulty "since childhood". The psychologist reported agreement with September 2018 mental health examiner's opinion. The DBQ indicated that the Veteran has diagnoses of obstructive sleep apnea hypopnea which causes chronic sleep disturbance. The evidence is at least evenly balanced as to whether the Veteran's insomnia is related to service. The August 2021 psychologist noted that the Veteran meets the criteria for unspecified insomnia disorder, and the Veteran's January 1975 medical examination report upon retirement indicates that the Veteran competently and credibly reported trouble sleeping since 1965. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n. 4 (Fed. Cir. 2007). Thus, both the current disability and the in-service incurrence elements for service connection have been satisfied. Additionally, the Veteran attested to a continuity of insomnia symptomatology since "childhood". While the Veteran has reported experiencing insomnia "since childhood" in an August 2021 DBQ, it is unreasonable to expect the Veteran to be able to accurately pinpoint the timeframe in which he first suffered from insomnia decades after he first experienced it. Additionally, the Veteran's May 1955 medical examination report upon enlistment is normal with no indication that he suffers from a sleep disability. Therefore, regarding any sleep disabilities, he is presumed sound upon enlistment. While the September 2018 and August 2021 psychologist's opined that the Veteran's insomnia was less likely than not (less than a 50 percent probability) related to service, they based their opinions on a lack of treatment for insomnia since service which is an impermissible basis upon which to find that the Veteran's insomnia was not related to service. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, both the September 2018 and August 2021 psychologist's opinions are inadequate and afforded no probative value. As the medical opinions of record regarding the etiology of the Veteran's insomnia have been deemed inadequate, the Board could remand for an additional medical opinion. In these circumstances, however, a remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). To the extent that the grant of service connection in this case is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Buchanan, 451 F.3d at 1335. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's insomnia had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for insomnia is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Right and Left Foot Disabilities October 1956 service treatment records reflect that the Veteran was treated for athlete's foot. A December 1968 periodic medical examination report indicates the Veteran was treated for bilateral athlete's foot. March 1972 service treatment records reflect that the Veteran was treated for a lesion on the dorsum of his left foot. The Veteran noted foot trouble in his January 1975 medical history report, but his January 1975 medical examination report upon discharge is normal. In a July 2018 DBQ, the examining nurse practitioner (NP) opined that the Veteran's right foot pain was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, stating that right foot pain during service was acute only. She also reported that there is no evidence of chronicity of care and that symptoms are subjective only, thus a nexus has not been established. In a July 2021 DBQ, the examining nurse practitioner (NP) noted diagnoses of flat foot, plantar fasciitis, and hallux valgus. The NP reported an onset date of 2018, and the Veteran stated that his pain started while he was in the hospital at Kennesaw. The Veteran stated that he has sharp pain in his heal and big toe bilaterally. The NP opined that the Veteran's foot disabilities were less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, stating that the Veteran's left foot pain during service was acute only, there is no evidence of chronicity of care, and the symptoms are subjective only. For the following reasons, service connection for a right and left foot disability is not warranted. The Veteran's July 2021 DBQ reflects a current disability, as the Veteran has diagnoses of flat foot, plantar fasciitis, and hallux valgus, and his service treatment records indicate an in-service disease as he was treated for athlete's foot. Therefore, the first 2 criteria for service connection have been satisfied, and the dispositive issue is whether there is a nexus between the two. To this end, the July 2021 NP opined that the Veteran's current disabilities were less likely than not related to his in-service athlete's foot, noting that the Veteran reported that the pain started in 2018, more than 40 years after service, and that his foot pain in service was acute only. The NP provided a thorough rational to support her opinion and based it on an accurate characterization of the evidence of record, thus her opinion is afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary opinion in the evidence of record. Additionally, the Veteran's service treatment records establish that his athlete's foot was treated during service, and his medical examination report upon discharge is normal, indicating that his foot issues had resolved. The Board acknowledges the Veteran's attorney's contention that the July 2021 opinion failed to adequately address the etiology of the Veteran's foot pain. However, the Board finds the July 2021 opinion persuasive in that the NP addressed the fact that the Veteran reported an onset of pain multiple decades after service, with no indication that he has suffered from or been treated for pain since service, including pain and discomfort due to his in-service athlete's foot. The Veteran's medical treatment records contain references to treatment for other matters, such as a CAD, and hypertension, and it is reasonable to conclude that if the Veteran were treated for foot disabilities including athlete's foot since service and prior to 2018, such would have been documented in his treatment records. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). As for the Veteran's attorney's contention that the NP failed to consider whether the Veteran's foot pain was related to his diabetes, the issue of entitlement to service connection for foot disability due to diabetes was not raised by the Veteran or reasonably raised by the evidence of record, thus the NP was not obligated to address it. Additionally, the Board notes that the Veteran is not currently service connected for diabetes, therefore, had his foot pain been caused or aggravated by diabetes, service connection on a secondary basis would not be warranted. 38 C.F.R. § 3.310. The Board also acknowledges the Veteran's contention that his bilateral foot disabilities are due to service. While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to testify as to complex medical questions such as the nature and etiology of a respiratory illness. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran's contentions in this regard are therefore not competent. For the foregoing reasons, entitlement to service connection for a right and left foot disabilities is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Chest The Veteran's May 1955 medical examination report upon enlistment is normal as to his chest, and his May 1955 medical history report also does not reflect any chest pain issues. An undated medical history report indicates that the Veteran suffered from pain or pressure in his chest. A December 1968 periodic examination report indicates that the Veteran reported chest pain on several occasions with the doctor advising the Veteran that he was well. February 1972 service treatment records reflect that the Veteran was treated for chest pain. The Veteran's January 1975 medical examination report upon retirement indicates that the Veteran had pain in his chest during all exercise since 1965, and that the pain subsides after the exercise is completed. The Veteran noted pain or pressure in his chest on his January 1975 medical history report. In a July 2018 DBQ, the examining NP opined that the Veteran's chest pain was less likely than not (less than a 50 percent probability) incurred in, or caused by an in-service injury, event, or illness, stating that during service the condition was acute only. The NP reported that there was no evidence of chronicity of care, thus a nexus has not been established. The Veteran reported an onset of chest pain during service, stating that he had general tightness in his chest each time he exercised, and that his symptoms continue. In a July 2021 DBQ, the NP opined that the Veteran's chest pain, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. She stated that the Veteran had clear and unmistakable evidence of pre-existing chest pain, and that there is evidence that the Veteran continued to suffer from the pain during service. However, she opined that the progression is not beyond normal progression for this disorder, and that there is no evidence of permanent aggravation beyond normal progression identified. The NP added that temporary aggravation is plausible, but there is no evidence of permanent aggravation of the pre-existing chest pain, and that a thorough review of medical literature fails to support that the pre-existing condition was permanently aggravated by service. The Veteran reported that he suffers from chest pain which he stated had its onset in service, and his service treatment records and undated medical history report reflect complaints of pain and pressure in his chest. The Veteran is competent to report symptoms that he has observed, and which are within the realm of his personal knowledge with regard to his current disability. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). There is no evidence of record that the Veteran lacks credibility, thus his statements are afforded significant probative value. The dispositive issue is whether there is a relationship between the in-service chest pain and his current chest pain. While the July 2018 and July 2021 DBQs reflect the opinions that the Veteran's chest pain was less likely than not (less than a 50 percent probability) related to service, the July 2018 NP based her opinion on a lack of treatment records since service which is an impermissible basis upon which to find that the Veteran's chest pain is not related to service. The July 2021 NP found that the Veteran's chest pain clearly and unmistakably pre-existed service, and was clearly and unmistakably not aggravated by service. However, a Veteran is presumed to have been sound upon entry into active duty service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran's May 1955 medical examination report upon enlistment does not note chest pain, he is thus presumed to have been sound as to chest issues when he entered service. 38 C.F.R. § 3.304(b) (the term "noted," in 38 U.S.C. § 1111, refers to "[o]nly such conditions as are recorded in examination reports"). While the July 2021 NP found that the Veteran's chest pain was clearly and unmistakably not aggravated by service, the evidence that it pre-existed service, undated medical history report, cannot be said to be clear and unmistakable. Therefore, the presumption of soundness has not been rebutted and the Veteran is presumed to have been sound upon entry into active duty service. As the July 2021 NP based her opinion on the inaccurate factual premise that the Veteran's chest pain pre-existed service, her opinion is inadequate and afforded no probative weight. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). As the medical opinions of record regarding the etiology of the Veteran's chest pain have been deemed inadequate, the Board could remand for an additional medical opinion. In these circumstances, however, a remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c). With regard to whether the current disability requirement has been met, the Federal Circuit held that pain alone can constitute disability if it causes impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). In this case, the evidence shows that the Veteran has chest pain that caused impairment in earning capacity as it impairs his ability to perform physical activities. Therefore, the Veteran's chest pain meets the requirements for a current disability. The evidence is thus at least evenly balanced as to whether the Veteran's chest pain had its onset during service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for chest disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. CAD The Veteran's service treatment records do not reflect treatment for, or complaints of a heart disability, and his January 1975 medical examination report upon discharge is normal as to heart issues. April 2018 private treatment records indicate that the Veteran has a diagnosis of CAD. In a July 2021 DBQ, the NP opined that the Veteran's CAD was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, stating that his CAD was acute only during service. She also reported that there is no evidence of chronicity of care, and that symptoms are subjective only. The NP additionally opined that the claimed heart condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. She explained that temporary aggravation is plausible, but there is no evidence of permanent aggravation of the pre-existing heart condition. The July 2021 DBQ indicates that the Veteran has a diagnosis of CAD, and coronary artery bypass graft from 2021, with the Veteran reporting onset in 2006 when he had open heart surgery. The Veteran's attorney contended in his October 2021 letter that the Veteran should be afforded a new examination as the July 2021 examiner failed to provide an adequate rationale as to how she reached her conclusion that there was no evidence of permanent aggravation, and also based her conclusion on the notion that the Veteran's CAD pre-existed service. As previously noted, the Veteran's May 1955 medical examination report upon enlistment is normal as to any heart disability, thus he is presumed sound as there is no evidence his CAD pre-existed service and was not aggravated by service. Therefore, the Board agrees with the contentions of the Veteran's attorney that a new VA examination is warranted to determine the etiology of his CAD, as the July 2021 NP based her findings on the inaccurate factual premise that the Veteran's CAD pre-existed service, and is thus inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Whooping Cough The Veteran's May 1955 medical history report indicates that the Veteran suffered from whooping cough, but his May 1955 medical examination report upon entry into service is normal regarding his lungs. March 1973 service treatment records indicate that the Veteran was treated for croupy cough. March 1973 service treatment records also indicate that the Veteran was treated for coughing up blood, with the physician noting that the symptoms appear to be viral bronchitis. February 1974 service treatment records reflect treatment for a nonproductive cough. The Veteran's January 1975 medical examination report upon retirement indicates that the Veteran suffered from pertussis in childhood. May 2017 private treatment records indicate that the Veteran reported no cough, wheezing, or coughing up blood. April 2018 private treatment records indicate that the Veteran has a diagnosis of chronic hypercapnic respiratory failure and restrictive lung disease. In a July 2021 DBQ, the NP opined that the Veteran's whooping cough, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. She stated that the Veteran had clear and unmistakable evidence of the pre-existing pertussis, and that there is no evidence he continued to suffer from it during service. The NP noted that the progression is not beyond normal progression for this disorder, and that there is no evidence of permanent aggravation beyond normal progression identified. A separate July 2021 DBQ indicates that the Veteran has a diagnosis of asthma. The Veteran reported onset in 1995, stating that he had a bad cold or the flu which did not heal well. He stated that he continues to have postnasal drainage. In an October 2021 letter, the Veteran's attorney stated that a new examination was warranted as the July 2021 NP failed to provide a thorough rationale to support her opinion that the Veteran's whooping cough was not aggravated by service. The attorney also questioned the competence of the examiners who provided the DBQs, stating that they have proven that they are unable to provide an adequate examination. The Board finds that a remand is necessary to adequately adjudicate the Veteran's claim for service connection for whooping cough, considering the contentions of the Veteran's attorney. As previously noted, the Veteran's May 1955 medical examination report upon enlistment is normal as to his lungs, and while the Veteran's January 1975 medical examination report reflects that he suffered from pertussis as a child, there is no clear and unmistakable evidence that the Veteran's whooping cough was not aggravated by service as the July 2021 NP failed to provide any rationale to support her finding. Therefore, the Veteran is presumed sound upon entry into service. The NP also opined that there was no evidence that the Veteran continued to suffer from whooping cough during service without acknowledging the service treatment records reflecting treatment for coughing. As the July 2021 NP provided her opinion based on an inaccurate factual premise, her opinion is inadequate, and a new examination is warranted. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, but the requirement that the veteran raise the issue of the competency of the medical examiner is best referred to simply as a "requirement" and not a "presumption of competency." Francway v. Wilkie, 940 F.3d 1304, 1307, n. 1 (Fed. Cir. 2019) (en banc). As the Veteran through his attorney has specifically raised the issue of the competence of the VA examiner, he is entitled to information regarding the qualifications of the examiner. The matters are thus REMANDED for the following actions: 1. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's CAD. If an examination is deemed necessary, one should be conducted, to include via telehealth if feasible. The clinician should presume the Veteran was in sound condition at service entry and opine as to whether the Veteran's CAD is at least as likely as not (at least a 50 percent probability) related to an in-service injury, event, or illness, to include the Veteran's reports of chest pain and pressure during service. The clinician should provide a complete rationale for any opinion set forth and is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. 2. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's whooping cough. If an examination is deemed necessary, one should be conducted, to include via telehealth if feasible. The clinician should presume the Veteran was sound at entry into service and opine as to whether the Veteran's whooping cough is at least as likely as not (at least a 50 percent probability) related to an in-service injury, event, or illness, to include the Veteran's reports of coughing up blood and croupy cough during service. Should the clinician determine that the Veteran's whooping cough clearly and unmistakably pre-existed service, the clinician must opine as to whether the Veteran's whooping cough was clearly and unmistakably not aggravated by service. The clinician should provide a complete rationale for any opinion set forth and is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. 3. Information regarding the qualifications of the clinician, as well as the July 2021 VA NP, should be provided consistent with Francway v. Wilkie, 940 F.3d 1304, 1307, n. 1 (Fed. Cir. 2019) (en banc). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.