Citation Nr: 21015760 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-56 708 DATE: March 18, 2021 ORDER Service connection for a right ankle disorder, claimed as right ankle injury/pain is denied. Service connection for a right-side pain disorder, claimed as right-side pain, is denied. REMANDED Service connection for a bilateral foot disorder, claimed as bilateral pes planus, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right ankle disorder began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that a right-side pain disorder began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. 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. 2. The criteria for service connection for a right-side pain disorder are not 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 had active service from May 1971 to July 1972. This matter is on appeal from a February 2014 rating decision as to the right-side pain disorder claim and February 2017 rating decision as to the ankle and foot claims. The Veteran had a hearing before the undersigned Veterans Law Judge in January 2019. The Board previously remanded this matter in January 2019, to obtain VA medical records (which have been obtained), provide a statement of the case (SOC) for the bilateral foot disorder and right ankle disorder claims (which the Veteran has since filed a substantive appeal) and obtain a VA examination for the right-side pain disorder claim. At that time, the Board also made clear that the January 2019 hearing testimony was only for the right-side pain disorder claim. In July 2020, the Board remanded the claims for additional development, specifically new VA medical opinions, which were obtained in December 2020. Service Connection 1. Entitlement to service connection for a right-side pain disorder. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board initially notes that the characterization of the Veteran’s is problematic. Her complaints have been very unclear. The matters of the right ankle and foot are separate issues of this decision. The Veteran also withdrew her claim for internal abdominal disabilities (as indicated in the January 2019 Board decision dismissal of that issue). During her January 2019 Board hearing, she reported that her right sided pain starts at the ankle and goes up and comes back down. At that time, she indicated that she has not specifically been told by a medical provider what the issue is with her right side. She also indicated that after service she sought treatment from VA (which would be over 30 years following her separation from service). During her Board hearing, the Veteran also reported that in boot camp she was given salt tablets that would make her sick and cause her right side to hurt. In her November 2016 VA Form 9, she reported she had right side and lower thoracic pain since service. Her pain has thus alternatively been characterized as including her thoracic spine, right lower quadrant of the abdomen, and the right lower extremity to the lower back at various times. Service treatment records document occasional complaint of right sided pain, such as July 1971 complaints of right sided thoracic pain. Her July 1972 separation examination did not find any abnormality, other than to the genitourinary system. Post-service records from military facilities similarly did not find any right-sided pain disorder symptoms for years following her separation from service. Although there has been treatment for various disorders of pain, such disorders have been diagnosed and generally resolved; none of the post-service military facility records diagnose a pain disorder related to service or indications of chronic pain since service. For example, an April 1985 discharge record noted diagnoses of status-post motor vehicle accident, left rib fractures, left zygoma fracture, skull fracture, sinus fracture, facial lacerations and pulmonary contusions. Past medical history was unremarkable, and review of systems was unremarkable. A June 1985 medical history did not report any right sided pain, though the examiner did note a report of usual childhood illnesses and no other major medical problems, as well as, a post-service Apri l985 closed head injury from a motor vehicle accident, which resolved well. A June 1987 records noted complaints of pain of the middle abdomen with no radiation and the Veteran was treated for a billary obstruction. Another June 1987 record documented that the Veteran reported she had been in her usual good health prior to her complaints for obstructive jaundice secondary to granular cell myoblasioma of the distal common bile duct. At that time, the provider noted that neurologically the Veteran was without focal deficit. VA treatment records show the Veteran was not diagnosed with a right-side pain disorder, but did note occasional complaints of, or treatment for, various disorders on the right side, as well as, denials of any right-side complaints. They also did not provide any etiology opinions as to the right-side complaints. For example, a January 2008 VA initial visit documented that the Veteran had a complaint of chronic back pain secondary to trauma in 1998 and received a diagnosis of stable low back pain. No complaints regarding the right side were made at that time. In an April 2008 VA medical record, the Veteran reported that sometimes she has left leg pain. A June 2010 VA medical record indicated the first complaint to VA of a pain to the right lower quadrant of the abdomen, which was later found to be negative for appendicitis. In a June 2010 VA medical record, she reported complaints of head and neck pain, low back pain, and left leg pain. She reported low back pain since her 1999 injury and 1984 motor vehicle accident; she claimed intermittent pain in the neck, right leg, and back. An August 2010 VA physical therapy consult noted the Veteran’s complaint of chronic low back pain, with an onset in 1999. The pain was accompanied by a feeling like the left foot was swollen and right lower quadrant pain, which had both since resolved. The provider found chronic low back pain with intermittent radiating pain of the right lower extremity, but that left ankle pain and right groin pain had resolved; there was right quad tightness. She received a diagnosis of lumbar disc disease and muscle strain. A January 2011 VA medical record noted a finding of chronic low back pain with intermittent, radiating right lower extremity pain. An April 2011 VA podiatry consult noted a complaint of pain radiating from the low back through her knee and lower leg to her feet. A February 2013 VA medical record documented only a complaint of bilateral hand pain and right arm pain. The provider found her to have myalgias, possible myopathy vs connective tissue disorder and ordered a rheumatic consult. The provider noted that her hand pain was likely osteoarthritis. An August 2015 record noted right leg sciatica that the Veteran reported as having been diagnosed in 1998. Although the Veteran is competent to report having experienced symptoms of right-side pain since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of right-side pain disorder. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, multiple locations of the body, and orthopedic or neurological complaints. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board notes that the Veteran herself has indicated that her treating medical providers were unable to provide a diagnosis. The Board further finds that her reports of chronic pain since service are not credible. As noted above, the Veteran’s reports as to the symptoms she has had since service have varied from thoracic, to abdominal, to pain down to her ankles. More contemporaneous evidence, such as VA medical records noted above, further indicate inconsistent reports as to where her pain occurred, as well as, the chronicity of her complaints. Similarly, her reports as to the cause of the pain has varied, such as her report during her hearing that it was from working as a mail carrier, her alternate claim that it developed due to taking salt pills, and her reporting to the VA examiner below that it was from basic training and carrying sea bags. The Board previously obtained an October 2019 VA examination, but found in was insufficient, as it did not consider the post-service medical records (associated with the claims file in January 2014) before the start of the 2007 VA medical records. To the extent that a new VA medical opinion was necessary to consider evidence, that VA examination was inadequate. However, the Board notes that the VA muscle examination found no diagnosis and found no clinical evidence for right side pain on that examination. The examiner found that the objective evidence failed to support a chronic/current right-side pain disorder or functional impairment. There is no indication or argument of record that such a finding was not valid. Rather, it appears consistent with the findings of her own medical providers. At that time, the examiner noted that the Veteran reported that she had sustained right side pain in boot camp while performing PT and carrying heavy sea bags. She was seen in clinic and provided Tylenol for pain. She further reported that she continued to have right side pain since separation from active duty and pointed to the right lower quadrant of the abdomen. Her primary care provider could not find an abnormality. A new VA medical opinion was obtained in December 2020. That VA medical opinion provider opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He noted in-service complaint of right-sided pain diagnosed thorax pain with orders to return as needed; however, there was no further complaint, diagnosis or treatment of right-side pain in service or within one year of separation. Separation exam showed a normal abdomen and normal physical evaluation except for intrauterine pregnancy. The VA medical opinion provider further noted a November 1985 mild thoracic 3/4 compression fracture to spine- this is from a post-service motor vehicle accident and an April 1986 mid-back pain status-post motor vehicle accident. He also noted abdominal pain in June 1987 and a July 1987 cholecystectomy with ongoing complications such as: common bile duct obstruction and stent, granular cell myoblastoma, or pancreatitis. The examiner additionally noted a January 2008 VA medical record noting a history of gall bladder removal in 1989, with no abdominal or right-side complaints. There was also a June 2010 right lower quadrant abdominal pain complaint. Such complaints were over 15 years after separation from service therefore intercurrent injury/disease could not be ruled out as its etiology. There was no medical evidence to support the Veteran having gallbladder problems/cholecystectomy in service or due to service. Also, right side pain in service was acute and resolved. The Veteran had several issues that caused right-side pain post-service to include motor vehicle accident, thoracic spine compression fractures 1985 (13 year after separation), and multiple abdominal issues and diagnoses as above to include cholecystectomy in 1987 (15 years after separation). The VA examiner opined that a nexus had not been established. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The December 2020 VA examiner’s opinion is considered probative, as it is uncontroverted by any competent evidence of record, apart the Veteran’s own implied assertions. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board looks at factors such as the health care provider’s knowledge and skill in analyzing the medical data). Again, the Veteran’s assertions are not competent as to any current diagnosis of her right-sided pain and she is not competent to provide a nexus. Further, absent such countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran’s favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions). As the preponderance of the most probative evidence of record is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). Service connection for a right-side pain disorder is denied. 2. Entitlement to service connection for a right ankle disorder. In her October 2017 notice of disagreement, the Veteran reported that during service she was a postal clerk, which required constant walking with heavy mail bags and packages. In a January 2019 lay statement, she indicated that while working as a postal clerk, there were days that she had foot and ankle pain or if she ran more than two miles. She has claimed to have had chronic pain since service that has worsened with age. Again, 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. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that although the Veteran has a current diagnosis of right ankle disorder and evidence shows that the Veteran had in-service ankle complaint, the preponderance of the evidence weighs against finding that the Veteran’s right ankle disorder began during service or is otherwise related to an in-service injury, event, or disease. Regarding the right ankle claim, June 1971 service treatment records documents complaints of, and treatment for, right foot and ankle swelling. The July 1972 separation examination did not find any abnormalities of the feet or lower extremities. Post-service military treatment records for over 20 years, as the spouse of an active service member, do not document any further complaints of, or treatment for, her right ankle. For example, a June 1987 treatment record noted that the Veteran claimed she was in her usual good health until 2 weeks prior to treatment for obstructive jaundice secondary to granular cell myoblasioma of the distal bile duct. More recent VA medical records, from over 30 years following separation from service, document occasional complaints of, or treatment for, the right ankle, but do not provide any medical opinions as to etiology. For example, a January 2009 record showed that the Veteran complained of right ankle pain. A March 2011 X-ray showed unremarkable ankles. A February 2012 record noted she complained of ankle pain for years. An August 2015 VA medical record noted complaint of pain on the outside of the right ankle for a few months and the provider found joint hypermobility and peroneal tendonitis. Even though the Veteran is competent to report having experienced symptoms of ankle pain or swelling chronic since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the current disability. The issue is medically complex, as it requires knowledge of long-term diagnostics, as well as, consideration of intercurrent injuries such as post-service motor vehicle accidents, as well as, multiple and varied diagnoses over the years. Moreover, the Board does not find her reports of chronic pain to be credible. Given the gap in report of any such complaints for decades after her in-service treatment, to include the months after her in-service treatment prior to her separation, the Board finds the more contemporaneous medical evidence to be more probative as to whether the Veteran had a chronic pain of the ankle during those decades. Indeed, in a January 2011 VA medical record, the Veteran reported that her bilateral foot pain with some ankle involvement has occurred for only 2 years, which is consistent with her first report of ankle pain of record from January 2009. The Board further notes that at that time the Veteran indicated that her foot/ankle pain was only intermittent, not chronic as currently claimed. The December 2016 VA examination noted a diagnosis of right ankle strain. At that time, she reported that she injured her ankle during boot camp in 1971. The examiner noted a June 1971 report of right ankle pain that was treated conservatively, did not result in any further diagnosis, and was not further mentioned. The December 2016 VA examiner found that the Veteran’s right ankle disorder was less likely than not incurred during service. He explained that service treatment records indicated pain in June 1971, with no specific diagnosis and pain that appeared to resolve following conservative treatment. Although the Veteran had multiple subsequent medical visits, there were no further complaints. The July 1972 separation examination made no mention of the presence of any pathology or symptoms of the right ankle. Also, the right ankle was not mentioned again until August 2015 when pain and swelling for “the past few months” is noted. No diagnosis was made at that time, and concern for possible DVT was made in December 2015. This was apparently ruled out with no further mention or treatment of the right ankle. The Board previously found this December 2016 VA examination was inadequate, as it incorrectly indicated that the Veteran had no right ankle complaints after service until August 2015. VA medical records, however, do document earlier complaints, such as in an April 2011 VA podiatry consult. A new VA medical opinion was obtained in December 2020. The VA medical opinion also noted the June 1971 finding of a swollen right ankle and no further complaint, diagnosis or treatment of ankle pain in service or within one year of separation. The separation exam showed normal ankles. The December 2020 VA medical opinion noted various post-service treatment for the right ankle pain, including a March 2009 report of right ankle pain from radicular symptoms, a June 2010 complaint regarding numbness/burning pain down the legs, an April 2011 podiatry complaint of right ankle/foot pain, diagnosed bilateral pes planus and joint hypermobility. The VA medical opinion noted a 30-year gap since separation and the examiner found that an intercurrent injury/disease could not be ruled out as etiology. Multiple medical notes showed the Veteran’s ankle pain is due to radiculopathy from back injury during civilian work late-1990s and subsequent surgery. The examiner found that there was no medical evidence to support the Veteran having any chronic right ankle complaint or diagnosis in service or due to service. The VA medical opinion provider found that a nexus had not been established. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. In a January 2019 statement, private medical opinion provider M.W. indicated that the Veteran had moderate tenosynovitis caused by or a result of improper diagnosis and treatment: overuse of inflamed tendon less than 4 weeks splinting. Presumably, this medical opinion was regarding the right ankle claim, though the provider did not identify what tendon or claimed disorder for the opinion. The Board finds that the December 2020 VA medical opinion was more probative as it gave a more in-depth discussion of the service treatment records and the Veteran’s medical history, to include the over 30 year gap in complaints of, or treatment for, the disorder from service to the present. Indeed, the Board notes that the more recent diagnosis of tendonitis was only made in the last few years, though the Veteran had received treatment for the right ankle, to including from podiatrists, for years prior to such a diagnosis. For example, an April 2011 podiatry consult did not find tendonitis, which was found by an August 2015 podiatrist consult during a three-year checkup. The private medical opinion is also inconsistent with more contemporaneous evidence, such as a January 2011 VA X-ray had indicated unremarkable ankles or the multiple VA podiatrist evaluations for years that did not find tenosynovitis despite physical evaluation of the Veteran. Additionally, as noted above, the Board does not find the Veteran’s reports as to chronicity to be credible. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. The probative value of medical evidence is based on the provider’s knowledge and skill in analyzing the data, and the medical conclusion reached; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Consequently, the Board gives more probative weight to the December 2020 VA examiner. As the preponderance of the most probative evidence is against the claim, the benefit of the doubt rule does not apply. Service connection for a right ankle disorder is denied. REASONS FOR REMAND 3. Entitlement to service connection for bilateral foot disorder, claimed as pes planus, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of service connection for a bilateral foot disorder. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board cannot make a fully-informed decision on the issue because although a new VA medical opinion was obtained in December 2020, it only addressed the diagnosis of pes planus. As noted in the prior remand, the Veteran has multiple diagnoses, including pes planus, hammertoes, peroneal tendinitis, sciatic pain, and right foot drop, per an August 2019 VA podiatry note. As such, another addendum medical opinion is necessary. The matters are REMANDED for the following action: 1. A new VA medical opinion should be obtained to determine the nature and etiology of the currently claimed bilateral foot disorder(s). A VA examination should be obtained if deemed necessary by the VA medical opinion provider. The VA medical opinion provider should identify EACH diagnosed foot disorder. The VA medical opinion provider should determine the nature and etiology of EACH diagnosed foot disorder. The examiner must opine whether it is at least as likely as not that any foot disorder(s) is related to an in-service injury, event, or disease, including in-service reports of foot pain in June 1971. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran’s medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. The claims file should be reviewed, to include service treatment records, post-service federal medical records (associated with the claims file in January 2014), VA medical records, and lay statements (such as from January 2019). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.