Citation Nr: 21009257 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-27 313 DATE: February 22, 2021 ORDER Entitlement to service connection for status post-surgical excision of ganglion cyst in the right wrist with residual pain (hereinafter referred to as a “right wrist disability”) is denied. Entitlement to service connection for bilateral pes planus, hallux valgus of the right foot, and arthritis in the bilateral first metatarsophalangeal joint (hereinafter referred to as a “bilateral foot disability”) is denied. FINDINGS OF FACT 1. The appellant has a well-healed surgical scar from removal of a ganglion cyst on the right wrist and there is no recurrence of a ganglion cyst or residual disability; the current symptoms of pain and weakness in the right hand are not shown to be related to the prior cyst or its removal. 2. The preponderance of the evidence is against finding that the currently diagnosed bilateral foot disability is related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right wrist disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria to establish service connection for a bilateral foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant served in the Army Reserves with a verified period of active duty training (ACDUTRA) from August 1988 to December 1988. She separated from the Reserves in January 1996. This appeal stems from an April 2011 rating decision that denied both issues on appeal. In December 2018, the Appellant testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In April 2019, the Board remanded the case to provide the appellant with new VA examinations and obtain new medical opinions. The case has since returned to the Board for further appellate review. Service Connection – Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The term “active military, naval, or air service” for service-connection purposes includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24). Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless “veteran” status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Id. Even for veterans who have achieved “veteran” status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA (or INACDUTRA) in which the veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. Moreover, if the claimant has not achieved “veteran” status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or INACDUTRA), no matter if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Id. Additionally, while the appellant is currently diagnosed with arthritis of both feet, and although arthritis is considered a “chronic disease” under 38 C.F.R. § 3.309(a), the presumptive provisions of “chronic” in-service symptoms and “continuous” post service symptoms do not apply to periods of ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991), 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for any periods of ACDUTRA and/or INACDUTRA is not appropriate. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. An appellant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Right Wrist The appellant seeks service connection for residuals of a ganglion cyst. She states that she developed a ganglion cyst on the right wrist during service and went on sick call for such. She believes that the cyst developed as a result of physical training, i.e. pushups. She added that the cyst was subsequently removed but she testified that the medical records related to the removal are unavailable. She currently reports having difficulty with the right-hand grasping. Turning to the evidence, service treatment records dated in November 1994 noted prior removal of a ganglion cyst; clinical evaluation of the right upper extremity was normal. The appellant denied any problems and noted “I feel that I am healthy.” She reported that she had had a ganglion cyst on the right wrist removed when she was 19. An April 1999 pre-employment report of medical history showed that the appellant noted that she had a cyst removed from right wrist in 1990; however, she did not report having any symptoms associated with the cyst removal and indicated that she was in good health. According to January 2008 private treatment records, it was noted that the appellant medical history included a cyst removal. The appellant denied any previous accidents or injuries. It was not until 2010 that the appellant filed a claim for a “right wrist condition.” She did not elaborate further as to what the claimed disability was. In March 2011, the appellant underwent a VA wrist examination, at which time she reported that she had a ganglion cyst removed two months after leaving active service and that she had recurrent pain and weakness of the right wrist since then. She indicated that she received no treatment for the condition. On physical examination, range of motion of the right wrist was normal with no objective evidence of pain. X-rays of the wrist were normal with no evidence of any bony abnormality. The examiner rendered a diagnosis of status post-surgical excision of ganglion cyst with residual pain. The condition had no impact on the appellant’s ability to complete her daily usual activities. The examiner opined that the condition was less likely than not related to service as there was no evidence of the condition in the available service treatment records. According to October 2011 private treatment records, the appellant complained of multiple joint pain, to include back, shoulders, elbows, and wrists. No abnormal findings were noted on examination. In August 2012 correspondence, the appellant indicated that she continued to have residual pain and weakness from the right wrist procedure. In October 2015 correspondence, the appellant indicated that she had a surgical removal of a right wrist cyst in 1989. During the December 2018 Board hearing, the appellant indicated that she had a diagnosis of fibromyalgia. She noted that she had wrist pain and that she had a cyst removed in 1989. She had no records of the procedure. In November 2019, the appellant underwent an additional VA wrist examination. The appellant stated that she developed the ganglion cyst and had it removed both in 1989, but she was unsure of the exact dates. She noted that the symptoms had mostly resolved but on occasion, she drops items from her right hand and feels weakness in the right hand. After service, she worked as a corrections officer, childcare provider, and a secretary. During the physical examination, range of motion of the right wrist was normal. There was no objective evidence of pain and no pain with weight bearing. There was also no evidence of localized tenderness, pain on palpation, or crepitus. Muscle strength testing was normal. X-rays of the wrist were normal. The residual scar was not painful or unstable; it measured 2.5 centimeters long and 0.25 centimeters wide. After review of the record and examination of the appellant, the November 2019 VA examiner opined that the appellant’s claimed condition was less likely than not related to service. The examiner ultimately concluded that the appellant had no recurrence of a ganglion cyst and no residual disability from its removal. The examiner reviewed the medical and lay evidence of record and emphasized that the appellant’s superficial right wrist dorsal horizontal scar was well-healed, stable, nontender, with no evidence of erythema, elevation, depression, adherence to underlying tissue, or keloid. There was no functional limitation due to the scar. The examiner emphasized that there was no objective evidence of residual/sequela other than the well-healed incision. The examiner acknowledged the appellant’s report of temporary weakness in the right hand but determined that those symptoms are inconsistent with her ganglion cyst removal or her diagnosis of fibromyalgia. On review, the Board finds that the criteria to establish service connection are not met. The appellant’s surgical scar on the right wrist stemming from ganglion cyst removal is shown to be well-healed; it is without abnormality and does not cause pain or any functional impairment. The appellant does not have a recurrence of a ganglion cyst. Even if there was evidence of a ganglion cyst or its removal in the service treatment records, there is no evidence of a current disability, as specifically determined by the 2019 VA examiner. The examiner acknowledged the appellant’s complaint of right hand pain and weakness but determined that those symptoms are not related to a ganglion cyst, its removal, or the non service-connected fibromyalgia. In other words, regardless of whether there is competent evidence of a ganglion cyst during ACDUTRA, the appellant’s service connection claim still fails because there is no competent evidence of a current right wrist ganglion cyst disability and thus, the threshold element of the claim has not been met. Although the appellant is competent to report observable right wrist/hand symptoms, she is not competent to diagnose a medical disability because she is not shown to possess the necessary medical knowledge and expertise to do so. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007). On the contrary, the Board assigns a high probative value to the VA examination reports and in particular, the November 2019 VA opinion that determined the appellant does not have a current disability related to a ganglion cyst. There is no competent evidence showing a current ganglion cyst disability. For these reasons, the Board finds that a preponderance of the evidence is against the claim and it must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Feet The appellant has current diagnoses of bilateral foot pain, plantar fasciitis, hallux valgus, and arthritis. She asserts that her currently diagnosed bilateral foot disabilities are related to the pain she experienced during the 1988 period of ACDUTRA. The appellant’s service treatment records do not document any foot complaints, treatment or diagnoses. According to November 1994 Report of Medical History, she denied having any foot trouble. An April 1999 pre-employment report of medical history showed that the appellant denied having foot trouble. According to January 2008 private treatment records, the appellant denied having foot pain. Thereafter, in March 2010, orthopedic treatment records documented complaints of multiple musculoskeletal disabilities; however, the appellant did not mention foot problems. Specifically, the medical professional noted that evaluation of the feet and ankles revealed no gross tenderness of the bony anatomy of the ankles or feet, no erythema or swelling, no tenderness of the peroneal tendons, tibialis posterior or achilles tendon. Normal sensation, reflexes, and muscle tone. There were no gross bunionette or bunions. In March 2011, the appellant underwent a VA foot examination, at which time the examiner rendered diagnoses of bilateral mild pes planus, bilateral degenerative arthritis, and right foot hallux valgus. The appellant reported experiencing intermittent pain in both feet since active duty. She indicated that the onset of pain was after marching with boots. The examiner opined that the diagnosed foot disabilities were less likely than not related to service as there was no documentation of such treatment in service. In an October 2011 statement, the appellant indicated that her bilateral pes planus was aggravated during active duty in September 1988. She added that she went to sick call and complained of pain in her feet from wearing combat boots. According to March 2012 private treatment records, the appellant complained of pain in joints with stiffness and swelling in feet when walking. Neither the appellant nor the medical professional mentioned the appellant’s military service. In August 2012 correspondence, the appellant described the treatment she received for her feet in February 2012. In October 2015 correspondence, the appellant indicated that she was treated for foot pain in 1988 and later diagnosed with arthritis in the large toes in 2011. During the December 2018 Board hearing, the appellant indicated that the only incident in service was bilateral foot pain in 1988, which required limited duties at the time. In November 2019, the appellant underwent an additional VA foot examination, at which time the examiner continued diagnoses of right hallux valgus, bilateral plantar fasciitis, bilateral degenerative arthritis, and bilateral bunion. The appellant reported that she developed pain throughout the soles of both feet while she was in basic training in 1988. She added that her boots were changed to a different size and that she was provided with inserts. She continued to use inserts during additional periods of INACDUTRA. She also reported wearing boots from 2001 to 2010 while working as a corrections officer. She noted that she had recurrent pain throughout the years and in 2009 developed pain in the right great toe due to a bunion that developed there and at that time, she sought treatment for her feet. After examining the appellant, the examiner noted that the appellant’s symptoms were mainly due to the bilateral bunions. There was no current objective evidence of plantar fasciitis, only subjective evidence, and the degenerative changes were very minimal. After review of the record and examination of the appellant, the VA examiner opined that it was less likely than not that the currently diagnosed bilateral foot disabilities are related to ACDUTRA. The examiner noted that there was no objective evidence of foot treatment in 1988 and that subsequent medical and lay evidence in 1994 and 1999 showed that the appellant denied having foot trouble. The examiner cited to the above-mentioned evidence that specifically showed normal feet in 2010 and noted that it was not until later that the appellant began complaining of foot trouble and receiving treatment. The examiner concluded that the currently diagnosed condition developed long after discharge from active duty. On review, the Board finds that the evidence is against finding that the currently diagnosed bilateral foot disabilities had their onset during service or are otherwise related to it. Although there is evidence of current bilateral foot diagnoses, there is no evidence of foot problems in the service treatment records or for years thereafter. The Board recognizes the appellant’s report of having pain in her feet during the 1988 period of ACDUTRA and she is competent to report such. Even considering the claimed pain in service, the Board also observes that she specifically denied having any sort of foot trouble thereafter, such as in medical entries dated in 1994, 1999, and 2010. The appellant is not competent to diagnose a disability of the foot or opine as to the etiology of such, because she does not show to possess the necessary medical knowledge and expertise to do so. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007). The Board assigns high probative value to the 2019 VA opinion that the appellant’s current bilateral foot disabilities are less likely as not related to the pain she states she had in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The examiner reviewed the appellant’s claims file, considered both the medical and lay evidence, and examined the appellant. There is no medical opinion in support of this claim. In sum, the Board concludes that the weight of the competent and credible evidence demonstrates no nexus between the appellant’s diagnosed bilateral foot disabilities and her 1988 period of ACDUTRA. For these reasons, the Board finds that a preponderance of the evidence is against the claim and it must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.