Citation Nr: 21022132 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-50 427 DATE: April 14, 2021 ORDER Entitlement to service connection for bilateral foot disability is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for lumbar spine disability is denied. Entitlement to service connection for sleep disorder is denied. FINDINGS OF FACT 1. The Veteran’s bilateral foot disability did not first manifest during active service and is not otherwise related to an in-service injury or disease. 2. The Veteran’s hypertension did not first manifest during active service and is not otherwise related to an in-service injury or disease. 3. The Veteran’s lumbar spine disability did not first manifest during active service and is not otherwise related to an in-service injury or disease. 4. The Veteran’s sleep disorder did not first manifest during active service and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot disability 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 hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for sleep 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 served on active duty in the Army from October 1984 to October 1987. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office. In February 2020, the Board remanded the claim for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. 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, 1167 (Fed. Cir. 2004). Certain chronic diseases 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, 1133; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral foot disability. The Veteran seeks service connection for his bilateral foot disability. In the Board’s February 2020 remand, the Board recharacterized the Veteran’s original claim for bilateral pes planus, to include any and all foot disabilities. The Veteran’s service treatment records were silent for pes planus, but in August 1987, there was a notation that the Veteran had boot calluses and that his boot had caused an overlapping of the third digit of his right foot over the fourth digit. The Veteran underwent a VA examination in May 2016. He claimed he thought he had flat feet; however, the examiner determined the Veteran did not have a current diagnosis for pes planus. The examiner referenced an x-ray the Veteran had in March 2015, and that it found no fracture, no significant calcaneal spur, his plantar arch was maintained, achilles tendon appeared intact, subtalar joint was normal, and that no significant abnormality was noted. The Veteran was found to have a left heel callus/fissure with no open wound, he attributed this to a pedicure he had a few months prior to the VA examination, and that on his right foot, his fourth toe underrides his third toe with mild maceration to third webspace. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by service, concluding that because his service treatment records were silent for pes planus or any other chronic foot condition, and the Veteran did not currently suffer from pes planus or any other chronic foot problem. In January 2017, the Veteran complained that his right foot arch was bothering him, and it was harder to walk in his boots. The Veteran underwent another VA examination in March 2020 and was diagnosed with bilateral plantar fasciitis. It was also noted that the Veteran’s third toe on his right foot overrides the right fourth toe but caused no pain and posed no issues with the ability to walk, run, or stand. The examiner opined the Veteran’s bilateral foot disorder, specified as plantar fasciitis, was less likely than not incurred in or caused by his military service. The physician reviewed the records and determined that the Veteran’s service treatment records did not demonstrate that a bilateral plantar fasciitis condition was persistent while on active duty. He continued by saying the Veteran experienced minor self-limiting conditions during service that resolved as expected, and that it would be unlikely that complications from military service events would be expected to resurface later in life. The physician maintained that the considerable period of time after the Veteran left service without a continuity of the same complaints would have severed any causal connection to the current issue. He concluded by saying in the alternative, the medical literature suggests several instances which can predispose one to develop plantar fasciitis, such as age, certain type of exercises, obesity, and occupations that keep one on their feet, are more likely to be the result of the Veteran’s current plantar fasciitis, and not the events in service. In determining whether the Veteran is entitled to service connection for his bilateral foot disability, the Board has considered the Veteran’s assertions he has pes planus and foot problems. As such, his lay assertions that he suffered from pes planus and foot disabilities in service are not considered more persuasive than the objective medical findings which, as indicated above, do not establish a nexus for service connection. Accordingly, the Board finds that the preponderance of the evidence is against a nexus between his bilateral foot disability and his service. The Board considered the benefit of the doubt rule; however, as the preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for bilateral foot disability is not warranted and the claim must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. Entitlement to service connection for hypertension. The Veteran seeks service connection for his hypertension. The Veteran contends that his high blood pressure readings in service are related to his current diagnosis of hypertension. Hypertension is a chronic disease for which certain presumptions of service connection are available. 38 C.F.R. § 3.303(b), 3.307(a), 3.309(a). However, these presumptions are available when the chronic disease is present during service or the year following separation from service. Id. The Veteran received a diagnosis for hypertension in 2011-2012, over twenty-three years after his separation from service. While he had reports of a few elevated blood pressure readings in service, the disability was not shown to be chronic in service, did not manifest to a compensable degree within a presumptive period, and as explained below, was not noted in service with attributable continuity of symptomatology. Therefore, the service connection on a presumptive basis is not warranted. Id. The Board then turns to direct service connection. The Veteran’s service treatment records had many notations of his blood pressure readings throughout his service. In November 1983, prior to service, his blood pressure was measured at 130/70; in September 1985, he was being seen for left wrist contusion, and his pressure was 130/92; in May 1986, while being treated for urethritis, he had elevated blood pressure measured at 144/90; at another examination during May 1986, his blood pressure was 122/70; in March 1987, he was seen for tonsilitis, and his blood pressure was measured at 116/80; in April 1987, he was being seen for an upper respiratory infection and his blood pressure was measured at 130/98; and in May 1987, he was being seen for his right wrist injury and his blood pressure was 128/82. On the Veteran’s separation examination in August 1987, Veteran indicated he had high blood pressure; however, the examiner indicated his blood pressure issue was inactive. In September 1987, he underwent a cardiac stress test. His blood pressure was taken over a course of increased physical activity. His baseline blood pressure was taken and measured at 126/84, and over the course of the test it slowly increased, and while at stage IV of activity, the final stage he was tested at, his blood pressure measured at 164/80. The Veteran underwent a VA examination for his hypertension in March 2020. The examiner confirmed the Veteran had a diagnosis of hypertension, and that he was diagnosed, according to his medical history, between 2011-2012. The examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by the elevated blood pressures during service. He continued by saying that the service treatment records confirm that the Veteran’s blood pressures were in the normal range when in non-stressed physical conditions, but that when the Veteran was subjected to illness or when engaged in an arduous and physically demanding activity like the stress test, he presented with elevated blood pressures. The examiner said that blood pressures taken during these illnesses and physically demanding times are not considered indicative of true hypertension since the natural response during illness or injury is for the blood pressure to be elevated. Additionally, the examiner said that the elevated values during service were not sustained, and therefore, the Veteran cannot be stated as having hypertension in service. Thus, there is no nexus between his current diagnosis of hypertension and his in-service elevated blood pressure readings. Accordingly, the Board finds the preponderance of the evidence is against a nexus between the Veteran’s current disability and his elevated blood pressure readings in service. Specifically, the VA examiner’s opinion is more probative because it is based on a complete review of the claims file, and it provides an explanation that contains clear conclusions and supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board considered the benefit of the doubt rule; however, as the preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for hypertension is not warranted and the claim must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. Entitlement to service connection for lumbar spine disability. The Veteran seeks service connection for his lumbar spine disability. The Veteran has a current diagnosis for degenerative arthritis and degenerative joint disease of the lumbar spine. Arthritis is a chronic disease for which certain presumptions of service connection are available. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). However, these presumptions are available when the chronic disease is present during service or the year following separation from service. Id. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records first contain a diagnosis of degenerative arthritis in May 2016, which is almost thirty years after his separation in 1987 and clearly, outside of the applicable presumptive period. Id. The Board then turns to direct service connection. The Veteran’s service treatment records show a complaint of back pain during service. In October 1986, the Veteran was seen for low back pain due to playing basketball. He had full range of motion, including side-to-side and twisting maneuver, and it was noted he had a suspected “jammed back.” He was given an x-ray for his back, and it showed a normal lumbosacral spine with no evidence of traumatic, inflammatory, neoplastic, or significant arthritic change. In a November 1986 follow-up appointment, the Veteran said his lower back pain had completely resolved. His August 1987 separation examination was silent for any complaints or diagnoses of back pain or conditions. The Veteran went to the emergency department in July 2011 for lower back pain. He said he had been suffering pain for three days, he denied any injury or trauma, and said the pain was getting worse with movement and sitting. He returned to the emergency department four days later, still complaining of severe pain in his lower mid to right back. In a February 2012 emergency department note, the Veteran reported that he had back pain and had been suffering from it for about a year, and that it was slowly getting worse, but he was not taking anything for the pain. He said he felt he walked crooked and that he had worse pain with standing and sitting motions. Again, in December 2012, the Veteran complained of lower back pain. He told the doctor the onset of his pain was the past evening and denied any trauma. He said his back just went out and he was unable to move. He had x-rays done the same month, and the report showed mild degenerative joint disease was present and more severe in the lower lumbar spine. In January 2013, the Veteran was treated for lower back pain. He told the doctor that he has a history of lower back pain, but that it usually went away. The Veteran underwent a VA examination in May 2016, where he was diagnosed with degenerative arthritis and degenerative joint disease of the lumbar spine. It was noted the Veteran had an MRI in June 2013, where the impression was progression of L4-5 spondylosis, showing mild to moderate narrowing of the spinal canal with mild narrowing of the neural foramina. The examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by service. He continued by saying the Veteran’s service treatment records were silent for chronic or recurrent back problems and that his separation examination and x-ray were normal. The examiner concluded by saying that the Veteran’s current lumbar spine condition was not causally related to the minor low back strains in service, but rather, in accordance with the medical records, his current lower back condition had its onset in 2011. It is noted, the Board found this examination to be inadequate as it failed to get a complete history from the Veteran concerning his lower back pain. In February 2019, an opinion from the Veteran’s chiropractor, Dr. M.T., was associated with the record. She opined that the Veteran’s lower back condition is more likely than not causally related to his service. She said that he suffered from lower back pain in service and that the onset of his current condition has persisted since his active duty military service. Again, the Board found this examination and opinion to be inadequate as it failed to provide detail of symptomatology for the period after service and prior to 2011. Pursuant to the Board remand, the Veteran underwent another VA examination in March 2020. The Veteran claimed he had back pain during service. He said he had serious pain lasting for several weeks in 1985, after he carried an M60 mount for a considerable distance. He also told the examiner that when he was stationed at Frankfort, Germany in July 1986, that he went to the doctor for back pain, and conservative measures were taken. He noted he had mention of back pain in his exit service physical. The examiner reviewed the entire claims file and noted that there are no records seen in which the Veteran was treated for a continuation of his problems that arose from his military service or shortly thereafter. He then opined that the Veteran’s current lumbar spine condition, specified as lumbar spine degenerative disc disease and degenerative joint disease with a paracentral disc protrusion, was less likely than not incurred in or caused by his military service. The physician continued by saying the Veteran’s service treatment records and separation history do not demonstrate that a back condition was persistent while on active duty. He opined that the type of injury the Veteran sustained while on active service was a mild one, and according to the medical literature, that kind of injury would not be responsible for resulting in the later degenerative changes that he has had. The examiner also said that the considerable period of time after the Veteran left the military without a continuity of the same complaints would have severed any causal connection to the current issue. He concluded that if the Veteran’s current disability stemmed from his in-service injury there should be advanced degenerative findings seen on the associated imaging studies; however, the recent evaluations starting in 2011 do not demonstrate that. Rather, the recent results seen actually represent the gradual progression associated with aging. In reviewing the record, the Board finds that the preponderance of the evidence is against a nexus between the Veteran’s current lower back disability and his in-service lower back complaints. The March 2020 VA medical opinion clearly reflects consideration of the Veteran’s lay statements concerning his history of back pain, the relevant service treatment records, and provided a reasoned opinion concluding that his lumbar spine condition was not incurred in or caused by the claimed in-service event. The Board considered the benefit of the doubt rule; however, as the preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for lumbar spine disability is not warranted and the claim must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. Entitlement to service connection for sleep disorder. The Veterans seeks service connection for his sleep disorder. The Veteran contends his complaints of snoring, trouble sleeping, gagging, and cessation of breathing in service caused his current sleep disorder. The Veteran’s service treatment records show no diagnosis or treatment for a sleep disorder during service. His separation exam was silent for complaints, treatment, or diagnosis of a sleep disorder. Prior to the Veteran’s diagnosis of upper airway resistance syndrome, the Veteran had a few mentions of sleep disturbances after service. In May 2013, the Veteran told the doctor during a surgery consult that he is sometimes woken up with abdomen pain and regurgitation symptoms. In a July 2014 depression screening, the Veteran indicated that he had trouble staying asleep or sleeping too much on several days, then in an October 2014 psychology consult, he denied having sleep problems. In a November 2014 pain consult, the Veteran reported getting 8 hours of sleep a night and had a two-hour nap daily. In November 2014, a sleep study was ordered for the Veteran, but he cancelled the December 2014 appointment and was a no-show for his February 2015 sleep evaluation appointment. The Veteran finally had a VA sleep consult in September 2016. At this consult, the Veteran admitted to snoring, choking, and witnessed apnea. He informed the clinician that approximately a year prior, his physician informed him he may have sleep apnea based on results from a treadmill test, but the Veteran never followed through and had a polysomnogram done. The examiner noted the Veteran suffered from risk factors for sleep apnea including snoring, choking/gasping, witnessed apnea, naps during the day, and obesity. When asked when his apnea symptoms began, he told the examiner 10 years ago or longer, indicating over twenty years after service. In October 2016, the Veteran underwent a polysomnogram. The results indicated that the Veteran had mild sleep apnea. His apnea/hypopnea index was normal at 3, and his total respiratory disturbances index was 16, representing that he had was termed upper airway resistance syndrome. His snoring was overall mild, had significantly fragmented sleep with multiple awakenings, with an overall sleep efficiency of 90 percent. The examiner found that the usual treatment for this condition was positive airway pressure therapy. In March 2020, the Veteran underwent a VA examination for his sleep disorder. The examiner opined that his sleep disorder was less likely than not incurred in or caused by his military service. The examiner acknowledged no sleep disorder test was performed during service. The physician determined that the presence of sleep apnea related symptoms such as trouble sleeping, fatigue, daytime sleepiness, accompanied by gagging and cessation of breathing is only of a suggestive nature, but not a diagnosis. He continued by saying that without a confirmatory test for sleep apnea, he cannot state that the Veteran’s suggestive symptoms were due to sleep apnea or upper airway resistance syndrome. The Board finds that the preponderance of the evidence is against finding for the claim of service connection for sleep disorder. The Veteran’s service treatment records show no treatments or diagnoses of any sleep disorder; then after service, the Veteran’s records were silent for nearly 25 years for any complaints, treatments, or diagnoses of sleep disorders. He indicated in October 2014 that he did not suffer any sleep problems, and when asked in September 2016 how long he had suffered symptoms, the Veteran said it was ten years or longer, indicating the onset was well after service. The Board considered the benefit of the doubt rule; however, as the preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for sleep disorder is not warranted and the claim must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.