Citation Nr: 21010245 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 191230-52706 DATE: February 24, 2021 ORDER Service connection for a bilateral foot disability is granted. Service connection for a back disability is granted. Service connection for a left ankle disorder is granted. Service connection for a right ankle disorder is granted. Service connection for a right knee disorder is granted. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether a bilateral foot disability had its onset in or is otherwise related to the Veteran’s period of active service. 2. The competent and probative evidence is at least in equipoise as to whether a back disability had its onset in or is otherwise related to the Veteran’s period of active service. 3. The competent and probative evidence is at least in equipoise as to whether a left ankle disorder had its onset in or is otherwise related to the Veteran’s period of active service. 4. The competent and probative evidence is at least in equipoise as to whether a right ankle disorder had its onset in or is otherwise related to the Veteran’s period of active service. 5. The competent and probative evidence is at least in equipoise as to whether a right knee disorder had its onset in or is otherwise related to the Veteran’s period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left ankle disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right ankle disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right knee disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1986 to May 1997. The Board of Veteran’s Appeals (Board) notes that the rating decision on appeal was issued in November 2019; thus, this appeal comes to the Board under the provision of the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs’ (VA) decision on their claim to seek review. The appellant chose Direct Review by a Veterans Law Judge. See December 2019, VA Form 10182. This Board decision is consistent with the new AMA framework. In the November 2019 AMA decision, the Agency of Original Jurisdiction (AOJ) found that new and relevant evidence was submitted to warrant readjudicating the claims for service connection for the feet, back, ankles, and right knee. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). In December 2019, the Board received two VA Forms 10182 seeking appeal for a total of seven issues, but only two of those issues were docketed. In November 2020, the Board issued a decision that addressed the two docketed issues. Accordingly, the Board issues this supplemental decision to address the remaining five issues on appeal. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of service connection for all issues on appeal, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection 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 military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for a bilateral foot disability. The Veteran contends that bilateral foot pain began during service as a result of forced marches for 25 to 50 miles while carrying up to 50 pounds on his back and has been continuous since discharge from service. He stated he uses over-the-counter medication for pain and began going to a doctor after he obtained employment with medical benefits. The Veteran indicated he dealt with the pain and avoided sick calls because his commanding officer said those who went to sick calls frequently would not get promoted quickly. See December 2019, Correspondence; January 2019, Private treatment record. The AOJ found the Veteran has a current diagnoses of bilateral pes planus, plantar fasciitis, and onychomycosis. After review of the record, the Board finds the criteria for service connection for a bilateral foot disability have been met. Service treatment records (STRs) indicate the Veteran complained of and was treated for bilateral blackened toenails, fungal infections, and painful feet. In 1987, the Veteran was treated for tenderness in his second bilateral toes after a seven-mile run. The Veteran’s toes were black in color, painful, and swollen. In 1989, the Veteran complained of a burning sensation on the bottom of his feet during marches, increased tenderness when walking, and a fungal infection on all 10 toes. In 1990, the Veteran was treated for a fungal infection on all 10 toes and had the first and second toenails on his right foot surgically removed. See STRs dated June 1987, June 1989, and June 1990. The Veteran was provided two VA examinations for his feet. In April 2017, the Veteran stated bilateral foot pain began in 1986 due in-service runs, marches, and being in shoes (military issued boots) for extended periods of time. The examiner rendered a negative etiology based, in part, on a lack of medical records showing bilateral foot pain until recently. In September 2019, a second VA examiner found it was less likely than not that the Veteran’s current bilateral foot disability was related to service because there were no signs of continuing bilateral foot pain during or after separation from service. The Board accords little probative weight to the April 2017 and September 2019 VA examiners’ negative nexus opinions as they disregarded the Veteran’s statements of continuity because there was an absence of medical documentation in the record corroborating the Veteran’s statements. See VA examinations dated April 2017 and September 2019; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history or if it is based solely on the absence of documentation in the record) (emphasis added); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (finding the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). In February 2019, Dr. Hugh L. Richardson, the Veteran’s private treating podiatrist since November 2018, conducted a physical examination, and noted worsening of bilateral foot pain since discharge from service that is not alleviated by inserts, shoes, oils, or ointments. The Veteran reported onset of bilateral foot pain, swelling, blackened toenails, and flat feet during forced 25 to 50-mile marches over various terrains while carrying over 50 pounds on his back for 10 years during service. Dr. Richardson found that based on his 20 years of experience as a treating podiatrist it is highly likely to exacerbate painful plantar fasciitis bilaterally due to pes planus and in-service marching, and bilateral onychomycosis is related to duration of enclosed boots. The Board accords moderate probative weight to Dr. Richardson’s opinion, even though he did not review the claims file or STRs, because he has been actively treating the Veteran since November 2018, conducted a physical examination, and considered the Veteran’s medical history, lay statements, private treatment records, and reports of in-service bilateral foot pain. See January 2019, Private treatment records; see also Nieves-Rodriguez, 22 Vet. App. at 304. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s current bilateral foot disability had its onset during or is otherwise related to active service. The Board finds the Veteran’s lay statements concerning the onset and continuity of bilateral foot pain, swelling, blackened toenails, and flat feet since discharge from service to be competent and credible, and therefore, accords high probative weight to same. Jandreau, 492 F.3d at 1377; see December 2019, Correspondence; January 2019, Private treatment record. Resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a bilateral foot disability is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57-58. 2. Service connection for a back disability. The Veteran contends that back pain has been continuous since discharge from service. He stated he uses over-the-counter medication for pain and began going to a doctor after he obtained employment with medical benefits. The Veteran indicated he dealt with the pain and avoided sick calls because his commanding officer said those who went to sick calls frequently would not get promoted quickly. The Veteran further stated that he pulled and strained muscles in his back numerous times while lifting heavy equipment for yearly inspections but continued to avoid sick calls per his commander’s orders. See December 2019, Correspondence; May 2019, VA Form 21-4138. The AOJ found the Veteran has a current back disability; service treatment records document treatment for the low back; and a qualifying event, injury, or disease had its onset during service. After review of the record, the Board finds the criteria for service connection for a back disability have been met. The Veteran was provided two VA examinations for his back. In March 2017, the Veteran stated low back pain began in 1986 due to carrying a 45 to 50-pound radio on his back for 10 years and his symptoms have worsened over time. The examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability (including during flare-ups and with repeated use over time) because estimating the degree of range of motion would be speculative. The examiner also rendered a negative etiology based, in part, on a lack of medical records showing low back pain complaints until 15 years after discharge from service. In September 2019, a second VA examiner found pain, weakness, fatigability, or incoordination significantly limited functional ability (including during flare-ups and with repeated use over time). The examiner found it was less likely than not that the Veteran’s current back disability was related to service because there were no signs of chronic and/or continuation of back pain during or after separation from service. The Board accords little probative weight to the March 2017 and September 2019 VA examiners’ negative nexus opinions as they disregarded the Veteran’s statements of continuity because there was an absence of medical documentation in the record corroborating the Veteran’s statements. See VA examinations dated March 2017 and September 2019; Nieves-Rodriguez, 22 Vet. App. at 304; Dalton, 21 Vet. App. at 39-40; Buchanan, 451 F.3d at 1336-37. In February 2019, Dr. Larry Shuler, the Veteran’s private treating physician since November 2018, conducted a physical examination, and noted current low back symptoms. The Veteran reported onset of back pain was three to four years into military service and believed the 25 to 50-mile marches while carrying a backpack weighing up to 75 pounds contributed to the development of back pain. Dr. Shuler noted the Veteran’s current back disability is often caused by overuse and opined that it is highly likely the current back disability resulted from training and activities during service. The Board accords moderate probative weight to Dr. Shuler’s opinion, even though he did not review the claims file or STRs, because he has been actively treating the Veteran since November 2018, conducted a physical examination, and considered the Veteran’s medical history, lay statements, private treatment records, and reports of in-service back injuries. See February 2019, Private treatment records; see also Nieves-Rodriguez, 22 Vet. App. at 304. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s current back disability had its onset during or is otherwise related to active service. The Board finds the Veteran’s lay statements concerning the onset and continuity of low back pain since discharge from service to be competent and credible, and therefore, accords high probative weight to same. Jandreau, 492 F.3d at 1377; see December 2019, Correspondence. Resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a back disability is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57-58. 3. Service connection for a left ankle disorder. 4. Service connection for a right ankle disorder. The Veteran contends that bilateral ankle pain has been continuous since discharge from service. He stated he uses over-the-counter medication for pain and began going to a doctor after he obtained employment with medical benefits. The Veteran indicated he dealt with the pain and avoided sick calls because his commanding officer said those who went to sick calls frequently would not get promoted quickly. See December 2019, Correspondence. The AOJ found the Veteran has a current right and left ankle disability; service treatment records document treatment for the ankles; and a qualifying event, injury, or disease had its onset during service. After review of the record, the Board finds the criteria for service connection for left and right ankle disorders have been met. The Veteran was provided two VA examinations for his ankles. In March 2017, the Veteran stated bilateral ankle pain began in 1991 due to 25-mile mandatory marches while carrying a 45 pounds on his back and his symptoms have worsened over time. The examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability (including during flare-ups and with repeated use over time) because estimating the degree of range of motion would be speculative. The examiner also rendered a negative etiology based, in part, on a lack of medical records showing bilateral ankle pain complaints after discharge from service. In September 2019, a second VA examiner found pain, weakness, fatigability, or incoordination significantly limited functional ability (including during flare-ups and with repeated use over time). The examiner found it was less likely than not that the Veteran’s current left and right ankle disorders were related to service because there were no signs of continuing bilateral ankle pain during or after separation from service. The Board accords little probative weight to the March 2017 and September 2019 VA examiners’ negative nexus opinions as they disregarded the Veteran’s statements of continuity because there was an absence of medical documentation in the record corroborating the Veteran’s statements. See VA examinations dated March 2017 and September 2019; Nieves-Rodriguez, 22 Vet. App. at 304; Dalton, 21 Vet. App. at 39-40; Buchanan, 451 F.3d at 1336-37. In February 2019, Dr. Shuler conducted a physical examination and noted current bilateral ankle pain and stiffness. The Veteran reported he sprained his right ankle during a march in his first or second year of service and on multiple other occasions during service while playing basketball. Dr. Shuler noted the November 2018 x-ray showed hypertrophic changes to the left ankle and repeated strain of ligaments can lead to hypertrophic changes from scar tissue formation. The changes can cause pain, stiffening of the joints, and limited range of motion in the affected joint. Dr. Shuler opined that it is highly likely the current painful ankles are the result of injuries that occurred during military service. The Board accords moderate probative weight to Dr. Shuler’s opinion, even though he did not review the claims file or STRs, because he has been actively treating the Veteran since November 2018, conducted a physical examination, and considered the Veteran’s medical history, lay statements, private treatment records, and reports of in-service back injuries. See February 2019, Private treatment records; see also Nieves-Rodriguez, 22 Vet. App. at 304. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s current left and right ankle disorders had their onset during or is otherwise related to active service. The Board finds the Veteran’s lay statements concerning the onset and continuity of bilateral ankle pain since discharge from service to be competent and credible, and therefore, accords high probative weight to same. Jandreau, 492 F.3d at 1377; see December 2019, Correspondence. Resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for left and right ankle disorders is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57-58. 5. Service connection for a right knee disorder. The Veteran contends right knee pain began when his military occupation as a field wireman required him to carry 100 to 200 pound reels of cable, a 50 to 75 pound radio on his back, and lift other communication equipment in excess of 150 pounds while trekking across varying terrain on operations that last from three weeks to three months every year for over 10 years. The Veteran also indicated right knee pain was present during the mandatory forced marches of 25 miles while carrying heavy artillery. The Veteran further stated that he sprained or twisted his knee several times during service but continued to avoid sick calls per his commander’s orders. See December 2019, Correspondence; May 2019, VA Form 21-4138. The AOJ found the Veteran has a current right knee disability; service treatment records document treatment for the right knee; and a qualifying event, injury, or disease had its onset during service. After review of the record, the Board finds the criteria for service connection for a right knee disorder have been met. The Veteran was provided two VA examinations for his knees. In March 2017 and September 2019, two separate VA examiners rendered a negative etiology for the right knee based, in part, on a lack of medical records showing continuity of right knee pain after discharge from service until recently. The Board accords little probative weight to the March 2017 and September 2019 VA examiners’ negative nexus opinions as they disregarded the Veteran’s statements of continuity because there was an absence of medical documentation in the record corroborating the Veteran’s statements. See VA examinations dated March 2017 and September 2019; Nieves-Rodriguez, 22 Vet. App. at 304; Dalton, 21 Vet. App. at 39-40; Buchanan, 451 F.3d at 1336-37. In February 2019, Dr. Shuler conducted a physical examination and found chronic right knee pain. Dr. Shuler noted the Veteran’s report that right knee pain began during service after multiple knee-related basketball injuries, standing with knees locked at attention for 35 to 45 minutes, and forced 25 to 30-mile marches while carrying up to 75 pounds of weight. Dr. Shuler found that current right knee diagnoses of osteoarthritis and chondrocalcinosis are changes commonly seen with wear-and-tear injuries and opined it is highly likely that knee pain is the result of injuries incurred during military service. The Board accords moderate probative weight to Dr. Shuler’s opinion even though he did not review the claims file or STRs, because he has been actively treating the Veteran since November 2018, considered the Veteran’s medical history and lay statements, and was familiar with the Veteran’s in-service right knee injuries. See February 2019, Private treatment record; February 2019, DBQ; see also Nieves-Rodriguez, 22 Vet. App. at 304. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s right knee disorder had its onset during or is otherwise related to active service. The Board finds the Veteran’s lay statements concerning the onset and continuity of right knee pain since discharge from service to be competent and credible, and therefore, accords high probative weight to same. Jandreau, 492 F.3d at 1377; see December 2019, Correspondence. Resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a right knee disorder is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57-58. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.