Citation Nr: 21023495 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-62 440 DATE: April 20, 2021 ORDER Service connection for right foot plantar fasciitis and pes planus is granted. Service connection for left foot heel spurs, plantar fasciitis, and pes planus is granted. Service connection for functional impairment due to chest pain is denied. Service connection for a headache disability is granted. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a sleep disorder, including obstructive sleep apnea is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s current right foot disability, to include plantar fasciitis and pes planus, is related to active duty. 2. The evidence is at least in equipoise as to whether the Veteran’s current left foot disability, to include heel spurs, plantar fasciitis, and pes planus, is related to active duty. 3. The Veteran has not had functional impairment due to chest pain at any time during or proximate to the appeal period. 4. The evidence is at least in equipoise as to whether the Veteran’s current headaches began during service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right foot plantar fasciitis and pes planus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left foot heel spurs, plantar fasciitis, and pes planus 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 functional impairment due to chest pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a headache disability 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 had active service from October 1979 to July 1984. These matters come before the Board of Veterans’ Appeals (Board) from a rating decision issued in October 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the issue(s) currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial(s) and returned the case to the Board. See August 2020 supplemental statement of the case. 1. Service connection for right foot plantar fasciitis and pes planus is granted. 2. Service connection for left foot heel spurs, plantar fasciitis, and pes planus is granted. The Veteran contends that his current disabilities of the feet are related to service. Service treatment records (STRs) note that the Veteran was seen for a nail in his right foot. On his June 1984 separation examination, the Veteran endorsed a history of foot trouble, and explained that he experienced pain in ball of left foot while running sometimes. Post-service, an August 2008 VA treatment record noted pain in the right heel. During a podiatry consultation in September 2008, the examiner observed low arches of both feet and diagnosed right plantar fasciitis and bilateral pes planus. Treatment records in 2012 note worsening pain in both feet. At a November 2012 VA foot examination in connection with the Veteran’s original claim for a left foot disability, the examiner diagnosed heel spurs of the left foot. The Veteran reported that symptoms of cramping in the foot began during physical training at Fort Bragg in 1983. The Veteran reported that his symptoms have gotten worse. X-ray of the left foot showed moderate heel spurs. The examiner stated that the pain in ball of left foot was unrelated to a heel spur, the time of origin of which is unknown. Therefore, the examiner opined that it would be pure speculation to relate this to his military service. A July 2013 VA primary care note indicated that the Veteran had chronic heel pains and was using splints for fasciitis. At an August 2019 VA foot conditions examination, the examiner diagnosed bilateral pes planus and plantar fasciitis. With respect to the left foot, the examiner opined that it was at least as likely as not incurred in or caused by service. The examiner noted that the Veteran did not have feet pain, heel spur/plantar fasciitis or pes planus prior to active duty. At separation, he had heel pain in 1984 and x-ray in 2008 showed heel spurs. He was subsequently diagnosed with pes planus and plantar fasciitis in 2012. While in service, he participated in several ruck marches on hard concrete and symptoms presented themselves in 1984. Pes planus most likely developed from the hard exercises and running, but not diagnosed in 1984. Chronicity is evident. The Veteran had an overall poor health-seeking behavior and did not seem to have followed up. The history supported that the diagnosed conditions were at least a likely as not incurred in, or caused by, service. With regard to the right foot, the examiner opined that it was less likely than not incurred in or caused by service. The examiner noted that the Veteran did not have feet pain, pes planus, or plantar fasciitis prior to service and that, while he had a nail impair his foot during service, he did not have any pain at exit. He was later diagnosed with plantar fasciitis and pes planus in 2012. Flat feet may have developed from the hard exercises and running while in the military but was not diagnosed at the exit examination in 1984. However, since he had no symptoms documented at that examination or soon after, the right foot disability was less likely than not incurred in or caused by service. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the claimed right and left foot disabilities are related to service. With respect to the left foot, the Board acknowledges the November 2012 opinion, but notes that it is inadequate as it failed to consider additional left foot diagnoses. To the contrary, the August 2019 opinion addressed all left foot diagnoses during and since service and provided a well-reasoned opinion. As the August 2019 opinion is the only probative opinion of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left foot disability is related to service. As to the right foot, the Board acknowledges that the August 2019 examiner ultimately provided a negative opinion. However, the examiner also conceded that the Veteran’s flat foot “may have developed from the hard exercises and running while in the military.” Given that the examiner noted that the Veteran’s left flat foot was related to the hard exercises and running while in the military, it is logical to assume that the Veteran’s right flat foot would have the same etiology. Moreover, the examiner failed to adequately summarize the medical evidence of record because he failed to acknowledge that Veteran initially sought treatment for the right heel after active duty in 2008. Consequently, the opinion is afforded lesser probative value, and more weight is assigned to the medical records and the Veteran’s lay statements pertaining to the right foot. The Board finds that the evidence is at least in equipoise as to the Veteran’s right foot disability. In sum, as the evidence is at least in equipoise as to whether the Veteran’s current right and left foot disabilities are related to service, the Board must resolve reasonable doubt in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection for the right and left foot disabilities is therefore granted. 3. Service connection for functional impairment due to chest pain is denied. In July 2016, the Veteran filed a claim for cramps in chest. However, treatment records and a VA examination report during and proximate to the appeal period do not note any complaints of chest pain. Indeed, the most recent incident of chest pain was noted in May 2009. At that time, the examiner noted that the chest pain was “atypical,” and a stress test was negative. At the August 2019 VA examination, the Veteran reported to the examiner that his chest cramps were associated with physical therapy and had resolved in 2006. The examiner further noted that the Veteran “was very hesitant to rehash the experience and repeated it’s been so long and has resolved.” As the evidence fails to show that the Veteran has experienced functional impairment due to chest pain during or proximate to the claim filed in July 2016, service connection must be denied due to the absence of a current disability. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 4. Service connection for a headache disability is granted. The Veteran asserts that his headache disability began while in service. STRs note that, in July 1980, the Veteran complained of a headache for three days. He described throbbing off and on just above the left temple. He denied any former history. In July 1983, a screening note of acute medical care noted that the Veteran was seen for a follow up regarding headache of three weeks’ duration. At his June 1984 separation examination, the Veteran endorsed frequent or severe headaches. At an August 2019 VA headaches examination, the Veteran reported that he began to experience headaches in 1979. The condition had stayed the same since onset. He treated with rest and Tylenol. The examiner opined that the Veteran’s headache disability was less likely than not incurred or caused by service. The examiner reasoned that “Headache was documented in 1984. STR doesn’t support a chronicity from the one time of mention to present. Veteran does have headaches but doesn’t take medications, [and] is not getting care for it.” Based on the foregoing, the Board finds that the evidence for and against service connection for a headache disability is at least in equipoise. The August 2019 VA examiner failed to consider the evidence of record, which shows that the Veteran experienced headaches during active duty, and not just at separation. Moreover, the examiner appears to have ignored the Veteran’s competent lay assertions that he experienced recurrent headaches since service. Indeed, the Veteran is competent to report the onset and continuation of headaches. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, it is reasonable that that the Veteran did not seek formal treatment for headaches as he was self-medicating with over the counter medication. Therefore, the Board must resolve any reasonable doubt in favor of the Veteran and grant service connection for a headache disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disorder is remanded. The Board remanded this appeal in August 2018 to afford the Veteran a VA back examination and opinion as to whether the Veteran’s claimed lumbar spine condition is related to his active duty complaint of recurrent back pain. The Board advised the examiner to consider all lay statements of record. The August 2019 VA examiner opined that the Veteran’s diagnosed lumbosacral strain is not related to active duty, reasoning that there is no medical evidence of chronicity after service until three decades later. However, the Board notes that the Veteran is competent to report continuous back pain since service. Consequently, the Board finds that a remand for an addendum VA opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for a sleep disorder, including obstructive sleep apnea, is remanded. The Board remanded this appeal in August 2018 to afford the Veteran a VA examination and opinion regarding whether the Veteran’s claimed sleep disorder is related to active duty. The August 2019 VA examiner opined that the Veteran’s sleeping complaints were a symptom of his major depressive disorder. However, the VA examiner failed to opine as to whether the Veteran’s diagnosed obstructive sleep apnea is related to active duty. Consequently, the Board finds that a remand for an addendum VA opinion is required. Barr, 21 Vet. App. at 311; Stegall, 11 Vet. App. at 271. 3. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is remanded. The Board remanded this appeal in August 2018 to afford the Veteran a VA mental health examination and etiological opinion. The August 2019 VA examiner diagnosed major depressive disorder but failed to render an etiological opinion. Consequently, the Board finds that a remand for an addendum VA opinion is required. Barr, 21 Vet. App. at 311; Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran may have received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Obtain an addendum opinion from the VA examiner who prepared the August 2019 VA spine examination report (or a suitable substitute if that VA examiner is unavailable). The examiner should consider all evidence, including this REMAND, lay statements, and medical records. If the examiner finds that another examination of the Veteran is required, one should be undertaken. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s lumbar spine disability had its onset in service, or is otherwise related to the Veteran’s service, to include the recurrent back pain reported at his separation examination. A complete medical rationale for all opinions expressed must be provided. 4. Obtain an addendum opinion from the August 2019 VA examiner (or another suitably qualified clinician, if unavailable) regarding the Veteran’s obstructive sleep apnea. The examiner should consider all evidence, including this REMAND, lay statements, and medical records. If the examiner finds that another examination of the Veteran is required, one should be undertaken. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s obstructive sleep apnea had its onset in service, or is otherwise related to the Veteran’s service. A complete medical rationale for all opinions expressed must be provided. 5. Obtain an addendum opinion from the August 2019 VA examiner (or another suitably qualified psychiatrist or psychologist, if unavailable) regarding the Veteran’s major depressive disorder. The examiner should consider all evidence, including this REMAND, lay statements, and medical records. If the examiner finds that another examination of the Veteran is required, one should be undertaken. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s major depressive disorder had its onset in service, or is otherwise related to the Veteran’s service. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.