Citation Nr: 21013691 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-37 579 DATE: March 10, 2021 ORDER Service connection for a back disability is granted. Service connection for bilateral pes planus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his back disability is related to service. 2. The Veteran currently has a diagnosis of bilateral pes planus, and the evidence of record is in relative equipoise regarding whether such diagnosis is causally related to his military service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1990 to April 1998. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2014 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The February 2014 rating decision denied service connection for a back injury and the March 2015 denied service connection for bilateral pes planus. The Veteran testified before the Board at an August 2019 hearing before a Veterans Law Judge (VLJ) who is no longer a member of the Board; a transcript of such hearing is of record. Because the Veteran is entitled to an opportunity for a hearing before all Board members who will ultimately decide his appeal, a January 2021 letter was sent to the Veteran notifying him of the option to request an additional Board hearing with a Veterans Law Judge who would decide his appeal, and that failure to respond within 30 days would waive the option of the additional hearing. As of this date, there has been no response from the Veteran. Accordingly, his request for a hearing is considered withdrawn. 38 C.F.R.§ 20.704(d). This matter was remanded by the Board in November 2019 for further development. The Board finds that the RO substantially complied with the Board's remand directives, the Board may proceed with adjudicating the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Additionally, arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309 (a) (2016); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, including arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a back disability The Veteran seeks service connection for a back disability, which he contends was first incurred during active duty service. The Veteran claims that while serving on active duty and while he was riding a bike as a photographer he jumped over a bump, landing hard, felt an immediate "pop" in his back. See VA examination February 2015. After a careful review of the evidence of record both lay and medical, the Board finds as the Veteran had a back injury in service that resulted in back pain and a VA examination in August 2020 shows that the Veteran had current diagnosis of degenerative arthritis of the spine, DDD, DJD, and left lower extremity radiculopathy, the Board finds that service connection for a low back disorder is warranted based upon the continuity of symptomatology. As to direct service connection, the evidence of record shows that in August 2020 the Veteran was shown to have a current diagnosis of degenerative arthritis of the spine, DDD, DJD, left lower extremity radiculopathy. Accordingly, the Veteran meets the first required element for a direct service connection claim. As to an in-service disease or injury, service treatment records indicate that the Veteran reported a back injury occurred in October 1996. See April 1998 Report of Medical Assessment. Accordingly, the Veteran meets the second required element for a direct service connection claim. The question for the Board is whether the Veteran's current back disability is etiologically related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a February 2015 and August 2020 VA examination opinions. The Board notes the February 2015 VA examiner diagnosed the Veteran with lumbar strain. However, the examiner did not provide an opinion as to whether the disability was related to his military service. Subsequently, in an October 2019 opinion, a private clinician opined that the Veteran’s reported back symptoms began in service and are more likely due to the physical strain and activity the body was subjected to during work-related duties. However, the private clinician did not clearly identify the Veteran’s current diagnosis or provide stated rationale for the etiology opinion. The Veteran also provided an October 2019 letter from Dr. S.S.A., who opined that the Veteran’s back injury/trauma that occurred during his military career has caused a continuation of the back pain, which has increased pain with conditions that have became worse. She indicated that Veteran is now experiencing bilateral foot pain and numbness with tingling coming from injuries sustained while he was in active service. In August 2020, the private physician restated her nexus opinion. The Board remanded the issue for further development in November 2019. The Veteran was afforded another VA examination in August 2020. The examiner opined that the Veteran's back disability was less likely than not due to the Veteran's active duty service. The rationale provided was lack of evidence of complaints during service and at separation exam in 1998 and that the Veteran had no complaints of back pain until 2017, 19 years after his separation from the military. The examiner added that the Veteran's current back pain is due to degenerative disc disease and degenerative arthritis, which is most commonly due to aging. However, the Board notes that the Veteran told the examiner he continued to have back pain since service that has gotten worse over the years. This was not addressed in the examiner's opinion. The Veteran stated, throughout the period on appeal, that he has had ongoing back issues since he injured his back in service. He stated he had sought treatment from private providers for his back pain since service, but he has not been able to retrieve his medical records from chiropractors that have retired or are no longer in business. See August 2019 Board Hearing testimony. The Board finds that lower back pain symptoms were chronic in service and continuous since service separation. Service treatment records show that the Veteran had chronic back pain symptoms in service as he reported having a back injury in service. In lay statements the Veteran has consistently asserted that his back symptoms had been continuous since service separation. He stated he was treated by several private physicians and chiropractors for back pain since service and that he has self-medicated with OTC medicine and body stretches. The Board finds that this reported history is credible and probative. VA treatment records show that the Veteran has continued to receive treatment for a chronic back disorder. The Board finds that the Veteran has described having continuous back pain symptoms since service separation with a history of treatment since service. Significantly, a July 2017 private treatment record for back pain noted a past medical history of back pain since the 1990’s while he was serving in the Marines Corps. The Board finds that the Veteran has consistently reported his back injury and symptoms since then and finds that lay evidence provided by the Veteran is credible. While an August 2020 VA examiner opined that the Veteran's back disorder was less likely as not related to service, the examiner's rationale was based largely on the reasoning that the record was silent for documented complaints or treatment for a chronic disabling condition for approximately 19 years. The examiner specifically cited to the lack of treatment and complaints of pain between service and 2017; however, the examiner did not adequately consider continuity of symptoms as evidenced by the Veteran's report of continuing back pain, supported by records citing a history of back pain, or lay testimony and statements indicating that he had continuing back pain symptoms with treatment provided by his private physician since service. The Board finds, therefore, that the VA opinion is not based on a fully accurate factual background and is not adequate. The Board finds that the Veteran has credibly described continuity of back pain symptoms and treatment post-service. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that that he experienced chronic symptoms of back pain in service and continuous symptoms after service separation; therefore, the criteria for the presumptive provision of 38 C.F.R. § 3.303 (b) have been met. As the Board finds that the weight of the evidence demonstrates that the currently diagnosed back disorder is related to service by a finding of continuity of symptomatology, the criteria for a grant of presumptive service connection are met under 38 C.F.R. § 3.303 (b). Therefore, a medical nexus opinion regarding the theory of direct service connection under 38 C.F.R. § 3.303 (d) is not necessary. For these reasons and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back disorder is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral pes planus The Veteran claims that he currently has pes planus that is related to service. Specifically, related to treatment he sought during bootcamp. The Veteran claims he entered service without any foot condition and was diagnosed with fallen and torn arches, now flat foot, in April or May 1990. See March 2016 NOD. For the reasons set forth below and resolving all reasonable doubt in favor of the Veteran, the Board hereby agrees and awards service connection for the Veteran’s bilateral pes planus As an initial matter, the evidence of record shows that in August 2020 the Veteran was shown to have a current diagnosis of bilateral pes planus. The Board finds the diagnosis to be competent and credible as it was issued by a licensed physician’s assistant who possesses the necessary education, training, and expertise to issue the diagnosis. See 38 C.F.R. § 3.159(a)(1). Accordingly, the Board finds that the first element of the Veteran’s bilateral pes planus claim, a current diagnosis, has been established. As to an in-service disease or injury, service treatment records indicate that the Veteran reported that he had fallen arches in 1990. See April 1998 Report of Medical Assessment. The Veteran further testified at his August 2019 Board hearing that towards the middle or end of bootcamp, he could barely walk when he was sent to the clinic and was told by a technician that his arches had torn and fallen and that he will get treatment as soon as he gets to his permanent station. He was given light duties for a week or two. He added that at this permanent station, he was never treated and instead, he self-treated by buying different kinds of over the counter insoles and self-medicated with ibuprofen and other OTC medications. After service, he continued self-treatment with OTC medication until he went to private physicians who prescribed him prosthetics and inserts, he wears regularly. The Board finds that the Veteran is competent to describe the observable symptoms of his bilateral foot disability, to include pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition, the Board finds the lay evidence submitted by the Veteran to be credible, as it is consistent with the facts and circumstances of his service as well as with the other evidence of record. See Caluza, 7 Vet. App. at 511; 38 U.S.C. § 1154(a). Accordingly, the Board finds the evidence to be in relative equipoise on this issue, and therefore, affording the Veteran the benefit of the doubt, the Board finds that the second element of the Veteran’s bilateral foot disability claims, an in-service incident, has been established. In connection with his claim, the Veteran was afforded VA examinations in February 2015, April 2017 and most recently in August 2020. The February 2015 VA examiner opined that the Veteran’s pes planus was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran had a pre-existing medical condition that was documented in his separation physical examination as having been noted in 1990. The April 2017 VA examiner also provided a negative opinion. The April 2017 VA examiner reasoned that the Veteran’s entrance examination was illegible and that the remainder of the STRs were silent for foot disability. The examiner also opined that the Veteran served for 8 years but did not seek medical attention until 2017. At his August 2019 Board hearing, the Veteran testified that he had problems throughout service that continued after service, but that he did not always seek treatment and would instead rely on self-treatment. Additionally, the April 2017 VA examiner simply rendered a negative etiology opinion without clearly explaining the basis/es for apparently reaching a different conclusion than the February 2015 examiner on the question of whether the Veteran’s pes planus pre-existed service. In the August 2020 VA examination report, the examiner noted diagnoses of pes planus and hallux valgus and that the Veteran was in boot camp when he was diagnosed with pes planus. The examiner opined that Veteran’s foot condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided is that there is no record that veteran was ever diagnosed with pes planus during service, that X-rays of both feet dated February 2015 did not note any findings of pes planus, indicating that this condition occurred after 2015. The examiner noted that pes planus did not pre-exist service. (Continued on the next page)   In support of his claim, the Veteran submitted an October 2019 opinion statement from Dr. S.S.A., who indicated that Veteran is experiencing bilateral foot pain and numbness with tingling coming from injuries sustained while he was in active service. In reviewing the record, the Board acknowledges the medical opinion evidence contrary to the claim, however, finds them entitled to minimal probative weight. The February 2015 negative nexus opinion was based on incorrect facts that the Veteran’s bilateral pes planus pre-existed service, the April 2017 and August 2018 was based in lack of evidence of treatment for many years, not taking into account on the Veteran’s lay consistent statements throughout the period on appeal. After considering the totality of the record, the Board finds the evidence to be in relative equipoise as to whether the Veteran’s pes planus is related to his military service. As such, the benefit of the doubt is afforded the Veteran, and service connection for bilateral pes planus is therefore warranted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.