Citation Nr: 21010044 Decision Date: 02/24/21 Archive Date: 02/23/21 DOCKET NO. 13-12 269 DATE: February 24, 2021 ORDER Entitlement to service connection for residuals, dislocated right shoulder is denied. Entitlement to service connection for a left hand disability is denied. Entitlement to service connection for residuals, fracture fifth finger right hand is denied. Entitlement to service connection for a left foot disorder is denied. Entitlement to service connection for a right foot disorder is denied. Entitlement to service connection for a left ankle disorder is denied. Entitlement to service connection for a right ankle disorder is denied. REMANDED Entitlement to service connection for a right knee disorder is remanded. FINDINGS OF FACT 1. The Veteran does not have a right shoulder disorder that was incurred during or as a result of a service incident or occurrence. 2. The Veteran does not have a right hand disorder that was incurred during or as a result of a service incident or occurrence. 3. The Veteran does not have a left hand disorder that was incurred during or as a result of a service incident or occurrence. 4. The Veteran does not have a left foot disorder that was incurred during or as a result of a service incident or occurrence. 5. The Veteran does not have a right foot disorder that was incurred during or as a result of a service incident or occurrence. 6. The Veteran does not have a left ankle disorder that was incurred during or as a result of a service incident or occurrence. 7. The Veteran does not have a right ankle disorder that was incurred during or as a result of a service incident or occurrence. 8. Any arthritis of an affected joint was first shown years post service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right hand disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a left hand disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a right foot disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a left foot disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a right ankle disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for a left ankle disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1970 to December 1971 and from April 1975 to August 1993. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases including arthritis will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Although the Veteran has diagnoses of arthritis, as they were not diagnosed and manifest to a compensable degree within a year of service, service connection on a presumptive basis may not be granted for any of the joints herein at issue. 1. Entitlement to service connection for residuals, dislocated right shoulder Service treatment records show that in April 1978 the Veteran injured his right shoulder; he was assessed with tendinitis of the AC joint. In a September 2009 statement, the Veteran reported that he injured his right shoulder in service in 1985 and it continued to get worse, as indicated by the October 1993 VA examination findings. He further stated that his symptoms have continued to worsen since service. When seen in 1993, he reported a history of shoulder injuries, but no current problems. X-rays of the shoulders were said to be negative. In his September 2016 statement, the Veteran reported that he injured his shoulder a second time while he was on a ship; he thought he had dislocated his shoulder. A March 2018 VA examination found no current diagnosis of right shoulder arthritis. However, a November 2018 x-ray of the right shoulder revealed moderate acromioclavicular (AC) joint arthritis and supraspinatus tendinosis. The Veteran underwent a VA examination in February 2020. The examiner diagnosed a right shoulder osteoarthritis with rotator cuff tear. The examiner opined that the Veteran did not have a right shoulder disorder which was at least as likely as not incurred in service or caused by right shoulder disability during service. In support of this opinion, the examiner noted that there is no objective evidence of a chronic right shoulder disability or condition during active duty or within close proximity of separation. The examiner noted that the Veteran was treated for acute and transitory tendonitis of the right shoulder in 1978, which resolved. There was no objective evidence of continuity of symptomatology or chronicity throughout the remainder of service. The current right shoulder disability of right rotator cuff tear and osteoarthritis were diagnosed decades post service and an intercurrent injury is unknown. The VA examiner concluded that there is no nexus between the current shoulder disability and active duty service. Upon review of the evidence, the Board finds that service connection is not warranted a right shoulder disorder. Although there is evidence of a shoulder injury in service, it was noted to be acute and transitory and the VA examiner opined that it was not related to his current diagnosis as it was not diagnosed until many years after service. The Board is cognizant of the Veteran's lay statements regarding his disabilities. The Veteran is competent to provide evidence of lay observable symptoms and the Board finds his statements not persuasive given the negative 1993 findings. Moreover, the VA examiner’s expert opinion is more probative regarding causation and etiology as it is supported by medical principles and the examiner’s specialized knowledge. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for a right shoulder disorder and the Veteran's claim is denied. 2. Entitlement to service connection for a residuals, fracture fifth finger right hand 3. Entitlement to service connection for a left hand disability Service treatment records show the Veteran had a right hand fracture in service in December 1975. In August 1977, the Veteran complained of right hand pain. The Veteran was provisionally diagnosed with osteoarthritis in June 1990, possible rheumatoid arthritis in June 1991, provisional rheumatoid arthritis of hands and wrists in September 1991 via x-ray finding, and right thumb degenerative joint disease in September 1992. He was seen for hand complaints in 1993. No pertinent findings were made and X-rays were interpreted as negative. No residuals of a hand fracture were found A January 2018 treatment record showed the Veteran had carpal tunnel syndrome, bilaterally and a release approximately 23 years prior. A March 2018 VA examination reflects a current diagnosis of osteoarthritis or degenerative joint disease of hands. An April 2018 medical opinion stated that the Veteran’s osteoarthritis of hands was less likely as not had its onset in service. The rationale was the absence of objective evidence of osteoarthritis until 2009. At the February 2020 VA examination, the examiner noted arthritis of the left hand, but not the right hand. The VA examiner opined that the Veteran's hand disorder was not incurred in service or caused by any hand disability during service. In support of this opinion, the examiner provided the following rationale: There is no objective evidence of degenerative changes or arthritis of the right or left hand during AD or within close proximity of separation. The arthritis was identified years after AD service. There is no nexus between the arthritis of the left hand and AD service. The Veteran's primary complaints regarding hands today revolve around a separate issue of carpal tunnel syndrome which is a peripheral nerve condition the Veteran is already SC for. It is not a hand condition and thus not addressed on this DBQ. The Veteran's degenerative change left hand is not etiologically related to any in-service event or condition. It did not begin during AD and did not manifest within one year of AD service. Upon review of the evidence, the Board finds that service connection is not warranted for right or left hand disorders. Although there is evidence of arthritis of the left hand, the VA examiner specifically noted no etiology to service and that his arthritis was not diagnosed until many years after service. The examiner also noted that his symptoms were consistent with his service-connected carpal tunnel syndrome. The Board is cognizant of the Veteran's lay statements regarding his disabilities. The Veteran is competent to provide evidence of lay observable symptoms and the Board finds his statements less persuasive, given the 1993 findings. Moreover, the VA examiner’s expert opinion is more probative regarding causation and etiology as it is supported by medical principles and the examiner’s specialized knowledge. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for right and left hand disorders and the Veteran's claims are denied. 4. Entitlement to service connection for a right foot disorder 5. Entitlement to service connection for a left foot disorder 6. Entitlement to service connection for a right ankle disorder 7. Entitlement to service connection for a left ankle disorder A review of the Veteran’s service treatment records indicates that he was assessed with possible arthritis of the left foot (June 1979), metatarsalgia of the right foot with possible old healed fracture at the base of the fourth metatarsal (February 1980), “?DJD” of foot and ankle (December 1990). An October 1993 x-ray was negative for fracture, dislocation, and no definite calcaneal spur was seen. A February 2007 x-ray showed hallux valgus of the right first MTP joint. In August 2008, there were mild degenerative changes within the tarsometatarsal junction without evidence of acute injury. In July 2009, the x-ray shower mild right hallus valgus and mild to moderate osteoarthritis. The Veteran was afforded a VA examination in July 2013. The examiner diagnosed Morton’s neuroma and opined that it was a result of service. It has been service connected. Post-service treatment records show an October 2013 progress note by Dr. R., a private podiatrist shows that the Veteran was assessed with “primarily localized osteoarthritis of ankle and foot,” plantar fasciitis, and contracture of joint of ankle and foot. See also September 2013 Military Sealift Command Medical Summary Form (providing diagnosis of osteoarthritis of bilateral feet and plantar fasciitis of the right foot, based on an x-ray finding). A March 2018 VA examiner opined that neither the current plantar fasciitis nor osteoarthritis was related to Morton’s neuroma and that neither plantar fasciitis no osteoarthritis was related to his service. The rationale for the negative nexus with service was that the Veteran’s symptoms were suggestive of diabetic neuropathy. In the September 2019 remand, the Board found that this rationale was inadequate since the medical evidence indicated that the Veteran’s bilateral foot impairment existed before the diagnosis of diabetes mellitus. At the February 2020 VA examination, the examiner diagnosed “#1. right foot neuroma, resolved; #2. hallux valgus bilateral great toe MTP joints, not due to #1 #3. right mid-foot osteoarthritis, not due to #1; #4. small osteophytes on right calcaneus, not due to #1; #5. plantar fasciitis right foot per record.” The examiner opined that the left great toe hallux valgus is less likely as not incurred in or caused by active duty service. The examiner provided the following rationale: The active duty medical record provides subjective evidence in 1979 for complaint of left foot pain, to the last four digit bases of the tarsals. There was a differential diagnosis for possible arthritis and lab work was ordered, including RA, uric acid, cbc and sedrate. The record provides objective evidence (lab values) that ruled out an inflammatory condition. Imaging to the left foot at that time is not found in the record review. After 1979, the objective evidence in the veteran's active duty medical record fails to support a complaint, diagnosis or treatment for a left foot condition. Medical exams dispersed throughout the active duty medical record record 'normal' for the feet. When the veteran was treated for a right foot neuroma, these records are silent with regard to a left foot complaint or diagnosis. The first record noting complaint of left foot pain after active duty is in 2013, 20 years after separation from active duty service. Thus, the medical record fails to provide objective evidence for a chronic left foot condition after 1979 through 2013, a total period of about 24 years. Per the VA Form 2507 addendum request regarding the left foot condition etiologically related to service conditions (see above): Although the Veteran was treated for Morton's neuroma to the right foot in active duty, the review of current medical literature fails to support etiologic causation of the left great toe hallux valgus due to the Morton’s neuroma of the right foot. Regarding the right foot neuroma, the examiner opined that there is objective evidence for diagnosis and treatment for right foot neuroma in active duty service. However, the right foot Morton's neuroma is considered resolved, as evidenced by the 2017 (private) podiatry note indicating resolution via ultrasound. Regarding the hallux valgus, osteoarthritis, and calcaneal osteophytes, the examiner opined they are less likely than not due to service or the resolved right foot Morton’s neuroma. In support of this position, the examiner provided the following rationale: Currently, the veteran has DJD of the right mid-foot and calcaneal osteophytes along with right great toe hallux valgus. Objective evidence for these conditions is not found in the active duty medical record. As noted in the record, the veteran c/o right mid foot pain in active duty and neuroma was diagnosed. The examinations at that time documented no evidence for degenerative findings nor hallux valgus of the great toe. Imaging in active duty (1985, 1993) reported normal findings. The Vet was also examined by rheumatology in active duty and this examiner did not find abnormalities of the feet. About a year after separation from active duty, a 1994 rating decision denied a right foot condition noting a VA exam which was negative for a chronic right foot disability including x-rays which were negative for a bony abnormality of the foot. After separation from active duty - a right foot complaint is not found in the record until 2005 - 12 years after separation from active duty. The Veteran was diagnosed with plantar fasciitis of the right foot. Degenerative changes were not noted until five years later, in 2009. Per the VA Form 2507 addendum request regarding the left foot condition etiologically related to service conditions (see above): Current peer reviewed orthopedic literature fails to support an etiological relationship between the (now resolved) Morton's neuroma of the right foot and hallux valgus of the right great toe, right foot degenerative changes and/or plantar fasciitis. These abnormalities are less likely (less than 50% probability) due to the resolved Morton's neuroma. The veteran's medical record provides objective evidence for significant physically demanding work duties as a merchant marine and in the warehouse for about 20 years after separation from active duty. According to current literature, these types of activities along with other lifestyle/leisure/hereditary factors increase risk for the current abnormalities, including hallux valgus, DJD of the foot, calcaneal enthesophytes and plantar fasciitis.” Regarding the left ankle, the Veteran's left ankle was noted to be normal with no disability. Regarding the right ankle, the examiner opined that the right ankle disorder was less likely as not incurred in or caused by active duty service, as a right ankle condition was not shown in service. The examiner noted that the first notation of a right ankle condition is in 2017, 24 years after separation from active duty. Additionally, the VA examiner provided the opinion that the right ankle strain is not etiologically related to your service-connected right foot Morton’s neuroma. Based on the medical record and current medical literature, the examiner concluded that was likely that lifestyle factors contributed to the current ankle condition, including work, sports/fitness activities and many years working as a merchant marine and in warehouses after active duty. Upon review of the evidence, the Board finds that service connection is not warranted for bilateral foot or ankle disorders. Although there is evidence of a right foot injury and Morton’s neuroma in service, that condition is already service connected. The VA examiner specifically noted that injury and opined, based on a complete review of the evidence and medical literature, that the Veteran's currently diagnosed foot and right ankle disorders are not etiologically related to service. The Board is cognizant of the Veteran's lay statements regarding his disabilities. The Veteran is competent to provide evidence of lay observable symptoms and the Board finds his less persuasive given the medical evidence and the VA examiner’s expert opinion is more probative regarding causation and etiology as it is supported by medical principles and the examiner’s specialized knowledge. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for right and left foot disorders and right and left ankle disorders and the Veteran's claims are denied. REASONS FOR REMAND Entitlement to service connection for a right knee disorder is remanded. In an August 2020 Order granting the parties’ Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (CAVC) vacated the Board’s September 2019 denial of service connection for a right knee disorder. The Court noted that in finding that the Veteran did not have a current disability, the Board did not address the Veteran's lay statements regarding how his symptoms impair his ability to work. Therefore, remand is necessary to obtain an addendum VA opinion regarding the Veteran's claim of service connection for a right knee disorder. The matters are REMANDED for the following action: 1. Obtain and associate any relevant, outstanding treatment records with the claims file. 2. Obtain an addendum opinion from an appropriate VA examiner regarding the Veteran's right knee. The examiner must review the claims file, including the August 2020 Order. The examiner must provide all relevant diagnoses of the right knee and if not disorder is noted, the examiner must comment on whether the Veteran has functional impairment, including impairment that affects employment, and the cause of that impairment. The examiner must then provide an opinion as to whether any diagnosed disorder or functional impairment is etiologically related to service. A complete rationale must be provided in support of all opinions. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.