Citation Nr: 21008389 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 16-20 345 DATE: February 16, 2021 ORDER Entitlement to service connection for bilateral pes planus is granted. The claim for entitlement to service connection for allergic rhinitis is dismissed as moot. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for bilateral feet disabilities (other than pes planus), to include arthritis, is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral pes planus preexisted service, and the evidence is at least in equipoise as to whether the Veteran’s disability was aggravated by active service. 2. While the issue of an allergic rhinitis disability was on remand to the Agency of Original Jurisdiction (AOJ), entitlement to service connection for allergic rhinitis was granted by the Regional Office (RO) in a December 2019 rating decision. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. 2. The issue of entitlement to service connection for an allergic rhinitis disability has been rendered moot, leaving no question of fact or law to be decided by the Board. 38 U.S.C. §§ 7104 (a), 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1989 to September 1999. This matter is on appeal from a March 2014 rating decision. The Veteran testified at a Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge in December 2018. The Board remanded the claim in May 2019. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may 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). Service connection may also be granted by virtue of aggravation by active service. An appellant is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111 (2012); 38 C.F.R. § 3.304 (b). A preexisting 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 progression of the disease. 38 U.S.C. §§ 1153; 38 C.F.R. § 3.306 (a). In explaining the meaning of an increase in disability, the United States Court of Appeals for Veterans Claims (Court) has held that “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral pes planus is granted. The Veteran has been diagnosed as having bilateral pes planus that causes him functional loss and impairment. See December 2019 VA Foot Conditions Disability Benefits Questionnaire (DBQ). On the service entrance examination in September 1997, the examiner noted that the Veteran had asymptomatic pes planus. As such, the presumption of soundness does not attach in this case. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b)(1). This is so because on his entrance examination, the Veteran was noted to have pes planus. Therefore, pes planus was a pre-existing condition. As the presumption of soundness does not apply, the evidence must establish that aggravation of the Veteran’s pes planus occurred during service. As stated above, 38 U.S.C. § 1153 contains a presumption of aggravation when it is shown that a pre-existing disorder underwent an increase in disability during service. Here, the record demonstrates that the Veteran’s pre-existing pes planus underwent an increase in severity during service. On the entrance examination in September 1997, his pes planus was described as asymptomatic. In contrast, the Veteran was treated for bilateral feet pain associated with pes planus during service multiple times. See, e.g., November 1995 service treatment record (showing treatment for bilateral feet pain caused by standing). Indeed, the Veteran reported at the November 1995 examination that the bilateral feet pain began 7 months ago in service. See id. In light of the foregoing, the Board finds that the presumption of aggravation has been raised. There is competent and credible evidence of a worsening of the Veteran’s bilateral pes planus during service. His pes planus was asymptomatic on entrance examination in September 1997. However, it became symptomatic in during service. The Board acknowledges that the record contains an opinion from the December 2019 VA examiner, who concluded that it is less likely as not that the Veteran’s bilateral pes planus were aggravated beyond their natural progression by military service. See December 2019 VA medical opinion. However, the examination is not probative because the examiner is not using the correct standard of review. Once there was an increase in disability, as is the case here, the burden shifts to the Secretary, and there must be clear and unmistakable evidence that the condition increased due to the natural progress of the disease not the less likely as not. See Horn v. Shinseki, 25 Vet. Ap. 231, 234 (2012). As the examiner’s opinion lacks probative value, the Board finds that there is no clear and unmistakable evidence of record showing that the increase in disability was due to the natural progress of the disease. Thus, service connection for bilateral pes planus based upon in-service aggravation is warranted, where the evidence also shows that the Veteran’s current pes planus is related to his pes planus in service. 2. The claim for entitlement to service connection for allergic rhinitis is dismissed as moot. While the claim for service connection for allergic rhinitis was on remand to the AOJ, service connection for allergic rhinitis was granted by the RO in a December 2019 rating decision. As a result of the AOJ’s action, there no longer remains a case or controversy with respect to the Veteran’s claim for service connection for allergic rhinitis. Therefore, the Board lacks jurisdiction over this issue because it has been granted and rendered moot on appeal. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. As such, dismissal of this claim is warranted. REASONS FOR REMAND 3. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. In May 2019, the Board remanded the claim for an examination and a medical opinion, which were obtained in December 2019. The December 2019 VA examiner opined that the Veteran’s GERD is less likely than not incurred in or caused by service. See December 2019 VA medical opinion. The examiner’s stated rationale is that there are no service treatment records showing a diagnosis or treatment for GERD or any related-GERD condition “even though the Veteran stated that he went to sick call and was given medication similar to Tums.” Upon remand, a new opinion must be obtained for the GERD service connection claim. The stated rationale shows that the examiner based his conclusion largely, and improperly, on the Veteran’s records being silent for any treatment for medication for the claimed condition. The Veteran is competent to attest to his GERD-related symptomatology because they come through his senses. Therefore, his statements should have been considered by the opining examiner, despite there not being contemporaneous medical records to support his statement. See also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a veteran’s report of in-service injury and instead relied on the absence of evidence in a veteran’s service medical records to provide a negative opinion); Buchanan v. Nicholson, 451 F.3d at 1337 (holding that it was Board error to find that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim). Moreover, here, like in the May 2019 Board remand, the Board found that the occurrence of such events in-service has been established by virtue of the combat presumption. Thus, the new opining examiner must assume the occurrence of such events in-service has been established by virtue of the combat presumption, when providing the new nexus opinion. 4. Entitlement to service connection for sleep apnea is remanded. Similarly, in May 2019, the Board also remanded the sleep apnea service connection claim for an examination and a medical opinion, which were obtained in December 2019. The December 2019 VA examiner opined that the Veteran’s sleep apnea is less likely than not incurred in or caused by service. See December 2019 VA medical opinion. The examiner’s stated rationale is: [T]here are no [snoring] episodes documented or complaints while he was in service. [S]noring tends to be multifactorial in nature, including genetic factors, environmental factors, drug abuse, lifestyle, body habits, sinus infections, sinus pressure, upper respiratory conditions and/or diet. Thus, there is no direct causality of snoring causing or leading to obstructive sleep apnea. Although snoring is one of the many symptoms of sleep apnea, []it is not a contributing factor or cause of sleep apnea or definitively associated to sleep apnea. December 2019 VA medical opinion. Upon remand, a new opinion must be obtained for the sleep apnea service connection claim. As an initial matter, the stated rationale shows that the examiner based his conclusion largely, and improperly, on the Veteran’s records being silent for any snoring or sleep apnea-related symptoms. As outlined in the May 2019 Board remand, the Veteran had asserted that starting in service, people began waking him up for snoring and gagging in his sleep, and as stated above, the Veteran is competent to attest to what comes through his senses, which includes his being woken up by others starting in service. Therefore, his statements should have been considered by the opining examiner, despite there not being contemporaneous medical records that reflect he was snoring or gagging in sleep in service. See also Dalton, 21 Vet. App. at 23; Buchanan, 451 F.3d at 1337; Harris, 203 F.3d at 1350-51. In any event, here, in the May 2019 Board remand, the Board found that the occurrence of such events in-service has been established by virtue of the combat presumption. Thus, the opining examiner must assume the occurrence of such events in-service has been established by virtue of the combat presumption, when providing the new nexus opinion. Secondly, the examiner provided a negative etiology opinion after finding “no direct causality of snoring causing or leading to obstructive sleep apnea” or snoring being a “contributing factor or cause of” or “definitively associated to” sleep apnea. However, in providing this opinion, the examiner used the wrong standard of review because not likely a “cause,” “contributing factor” or “definitively associated to” exceeds the required “at least as likely as not” evidentiary standard. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The physician must provide an opinion using the correct evidentiary standard unless, for some reason, this is not possible. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Therefore, the opinion is not adequate. Finally, the December 2019 VA examiner also provided a secondary etiology opinion, in which he concluded that it is less likely than not that the Veteran’s sleep apnea is secondary to his service-connected posttraumatic stress disorder (PTSD). However, in June 2019, the United States Court of Appeals for Veterans Claims (the Court) issued a decision in Ward v. Wilkie, which affects the Veteran’s claim. 31 Vet. App. 233 (2019). In Ward, the Court held that secondary service connection is warranted for “any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence.” Id. at 239. Upon review of the opinion, the Board finds that the December 2019 etiology opinion does not comport with the holding in Ward. Based on the foregoing, the claim must be remanded for a new opinion addressing the foregoing concerns. 5. Entitlement to service connection for bilateral feet disabilities (other than pes planus), to include arthritis, is remanded. In a December 2019 VA medical opinion, the examiner opined that it is less likely than not that the Veteran’s feet condition to include arthritis is related to service “as there are no medical records showing diagnosis or treatment” for any feet condition while he was in service.” Upon remand, a new opinion must be obtained for the service connection claim. As an initial matter, the stated rationale shows that the examiner based his conclusion largely, and improperly, on the Veteran’s records being silent for any feet pain. As outlined in the May 2019 Board remand, the Veteran had asserted that he began to experience feet problems in service after bootcamp, and the Veteran is competent to attest to what comes through his senses. Therefore, his statements should have been considered by the opining examiner, despite there not being contemporaneous medical records that reflect he was snoring or gagging in sleep in service. See also Dalton, 21 Vet. App. at 23; Buchanan, 451 F.3d at 1337; Harris, 203 F.3d at 1350-51. In any event, here, in the May 2019 Board remand, the Board found that the occurrence of such events in-service has been established by virtue of the combat presumption. Thus, the opining examiner must assume the occurrence of such events in-service has been established by virtue of the combat presumption, when providing the new nexus opinion. The matters are REMANDED for the following action: 1. Obtain a new etiology opinion from a new VA examiner to determine the etiology of the Veteran’s GERD. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any GERD had its onset during, or is otherwise related to, his active duty service. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner(s) is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The Veteran contends that in the 1990’s, when he was in service, he began getting a burning sensation in his chest depending on what he was eating. He went to sick call for Tums and Rolaids throughout service, and he has continued to experience this after leaving service, to the present day. He asserts that the symptoms that he had in service are the same as the symptoms he has now, although the symptoms are worse now. See December 2018 Board Hearing Transcript, p.3. THE EXAMINER IS ADVISED THAT THE OCCURRENCE OF SUCH EVENTS IN-SERVICE HAS BEEN ESTABLISHED BY VIRTUE OF THE COMBAT PRESUMPTION, BUT AN OPINION IS NECESSARY AS TO THE NEXUS BETWEEN THE IN-SERVICE EVENT AND THE CURRENT DISABILITY. 2. Obtain a new etiology opinion from a new examiner to assess the nature and etiology of the Veteran’s sleep apnea. Regardless of who offers the opinion, if the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. If the examiner requires an examination, in light of the COVID-19 epidemic, all flexibility and understanding in affording the Veteran any warranted examination should be given to the Veteran. After reviewing the claims folder and examining the Veteran, for the Veteran’s sleep apnea, the examiner is specifically instructed to provide the following information: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s sleep apnea BEGAN IN or is related to his time in the service, yes or no? (b) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s sleep apnea was: (i) CAUSED BY HIS SERVICE-CONNECTED PTSD, (ii) any other service-connected disability, or (iii) medicine taken for his other service-connected disabilities, yes or no? (c) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s sleep apnea underwent any incremental increase in disability, regardless of its permanence, due to: (i) the service-connected PTSD, (ii) any other service-connected disability, (iii) medicine taken for his other service-connected disability, yes or no? The Veteran contends that also in the 1990’s, when he was in service, he began snoring, in such a way that his shipmates would wake him up and tell him that he was gagging in his sleep, and that this snoring has persisted to the present day. See December 2018 Board Hearing Transcript, p. 14. The Veteran’s sister submitted a January 2014 statement, in which she stated that only after he came back from service did the Veteran begin exhibiting a heavy snoring like he did not have enough air coming in or out. The Veteran’s sister also indicated that while snoring in this way, the Veteran also jumps in his sleep and wakes up in a cold sweat due to his stressful military experiences. THE EXAMINER IS ADVISED THAT THE OCCURRENCE OF SUCH EVENTS IN-SERVICE HAS BEEN ESTABLISHED BY VIRTUE OF THE COMBAT PRESUMPTION, BUT AN OPINION IS NECESSARY AS TO THE NEXUS BETWEEN THE IN-SERVICE EVENT AND THE CURRENT DISABILITY. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 3. Obtain a new etiology opinion from a new examiner to assess the nature and etiology of the Veteran’s bilateral feet disability (except bilateral pes planus), to include arthritis. Regardless of who offers the opinion, if the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. If the examiner requires an examination, in light of the COVID-19 epidemic, all flexibility and understanding in affording the Veteran any warranted examination should be given to the Veteran. After reviewing the claims folder and examining the Veteran, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any foot disability (except bilateral pes planus), to include arthritis, had its onset during, or is otherwise related to, his active duty service. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is specifically instructed to explicitly consider the Veteran’s lay statements that his feet did not hurt prior to service but began to noticeably hurt when he was in service. See also December2018 Board Hearing Transcript, p. 18. THE EXAMINER IS ADVISED THAT THE OCCURRENCE OF SUCH EVENTS IN-SERVICE HAS BEEN ESTABLISHED BY VIRTUE OF THE COMBAT PRESUMPTION, BUT AN OPINION IS NECESSARY AS TO THE NEXUS BETWEEN THE IN-SERVICE EVENT AND THE CURRENT DISABILITY. 4. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST “CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO.” SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 5. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report fora VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATECORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.