Citation Nr: 21039809 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-41 386 DATE: July 1, 2021 ORDER Service connection for pes planus of the right foot is granted. Service connection for pes planus of the left foot is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to nasal fracture with deviated septum, is remanded. Entitlement to service connection for hemorrhoids is remanded. Entitlement to service connection for ingrown toenail, left great toe, is remanded. FINDINGS OF FACT 1. Pes planus of the right foot developed in service. 2. Pes planus of the left foot developed in service. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus of the right foot have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for pes planus of the left foot have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1992 to March 1996. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at the Board of Veterans' Appeals (Board) hearing in March 2019. A transcript is of record. The Board remanded the appealed claims in July 2019, and they now return to the Board for further review. The Board had also then remanded an appealed claim for service connection for a right ankle condition, but that claim for service connection was granted in full by a November 2020 VA Decision Review Operations Center decision, and hence for that claim there remains no case in controversy for appellate consideration. Service Connection Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Service connection for pes planus of the right foot 2. Service connection for pes planus of the left foot The Veteran contends, in effect, that he has bilateral foot conditions which had their onset in service. During his March 2019 hearing, the Veteran testified that he had multiple visits to sick call during service regarding pain in his feet and ankles. He stated that on a 30-kilometer rucksack march he twisted his ankle when a track vehicle on the road forced them to the side. He explained that he was put into a boot, he also had shin splints, and he underwent a bone scan. He stated that his leg was put in a cast the last six months he was in service. The Veteran's service treatment records reveal that in July 1993 the Veteran was treated for swollen instep and no range of motion of the right foot. The service treatment records reveal a multi-year history of bilateral shin splints as well as left tibia stress fracture, bilateral pes planus, and swollen insteps. Two bone scans were performed, four months apart. It was noted in July 1995 that a bone scan revealed stress fractures of tarsal bones of both feet and that the left leg had been casted, which exacerbated right leg pain. The Veteran was placed on profile multiple times in service including for his symptomatic feet, ankle, and legs. The Board notes that difficulties with the Veteran's right ankle and shin splints in service, while not directly applicable to the claims for service connection for conditions of the feet, are nonetheless relevant as they reflect significant physical stress-related injuries and physical activities in service placing such stresses on the lower extremities including the feet. In a February 2018 report, private physician G.M., whose office treated the Veteran from April 2017 to February 2018, provided a detailed review of service and post-service treatment records for the Veteran's claimed conditions of the feet and ankles. The physician concluded that the Veteran did not have foot and ankle conditions upon service entry, as shown by enlistment examination in June 1992, but that the Veteran was treated for conditions of the feet and ankles in service, and that he had received treatment for conditions of his feet and ankles from January 1995 to the present. On this basis the physician opined that the Veteran's current conditions of the feet and ankles were more likely than not caused by trauma sustained in service. A VA examiner in July 2020 addressed claimed bilateral foot conditions. The examiner provided opinions that bilateral foot conditions were not related to service based on inadequate documentation of disability from service. However, the examiner based these opinions on absence of evidence of chronic disability in service or ongoing treatment after service, without adequately considering the Veteran's self-reported history and with only limited review of service treatment records. The examiner appears to have failed to find pertinent service treatment records, and also did not consider the Veteran's reports of ongoing and progressive disability from service or proximate to service. The Board finds this negative medical opinion to be invalid based on failure to consider pertinent evidence from service and failure to consider the Veteran's self-reported history. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002) (noting that the Veteran is competent to report the symptoms that he experienced and his history of treatment); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that medical opinion must be supported by adequate analysis of relevant evidence). A VA examination opinion was obtained in January 2021 based on review of the record. The examiner reviewed the service records including a July 1993 record of treatment for symptomatic foot with a swollen instep, an October 1992 finding of metatarsalgia, references in 1995 to bilateral tarsal bone stress reactions, and an October 1995 provisional diagnosis of pes planus. The examiner noted that the current disability benefits questionnaire (DBQ) found bilateral pes planus though with limited symptomatic findings. While there was no service separation examination, at the DBQ the Veteran had reported onset of pain in 1998 and ongoing symptoms. The examiner found that it was at least as likely as not that the Veteran's bilateral foot conditions had their onset in service despite the absence of treatment records over the years following service, including based on service records reflecting pes planus and medical knowledge that "pes planus does not self-correct." The Board finds the January 2021 examiner's opinion is competent, credible, and supported by evidence of record including service and post-service records of bilateral pes planus and symptomatic feet, as well as the Veteran's self-reported history. This opinion is also supported by the conclusions of private physician G.M. The Board finds the evidence favors service connection for bilateral pes planus. 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to nasal fracture with deviated septum, is remanded. 2. Entitlement to service connection for hemorrhoids is remanded. 3. Entitlement to service connection for ingrown toenail, left great toe, is remanded. The Veteran was afforded VA examinations in July 2020 addressing claimed disabilities including obstructive sleep apnea, hemorrhoids, and an ingrown left great toe. These were all addressed by the same examiner who regrettably failed to find and review service treatment records pertinent to the claims and failed to give cognizance to the Veteran's self-reported history of symptomatic disability on an ongoing basis from service. The July 2020 examiner instead relied for her opinions on the absence of evidence to support onset in service or a link to service resulting from her failure to review pertinent service records and the absence of records of treatment in years following service. However, the Veteran is competent to report the symptoms that he experienced and his history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). The July 2020 examiner failed to give adequate consideration to the Veteran's self-reported history when addressing etiology of these claimed disabilities. The examiner also failed to review pertinent service records, apparently failing to find records of treatment from 1994-1995 as contained in the claims file. Absent consideration of relevant evidence, the examination cannot be valid. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (medical opinion must be supported by adequate analysis of relevant evidence). A medical opinion is inadequate if it relies on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Hence, the opinions this examiner provided against onset in service or a causal link to service are not probative due to their reliance on inaccurate factual bases. The July 2020 examiner provided addendums in February 2021. Responsive to the Veteran's reports of suffering from recurrent ingrown toenails since service, the examiner replied that there was "no evidence to suggest this." This rationale fails to recognize that the Veteran's own statements of his observations and experience constitute competent evidence. Charles, 14 Vet. App. at 374-75. Hence, the basis of the examiner's negative addendum opinion is erroneous, and that addendum opinion against a link to service for a left great toe ingrown toenail must be rejected as invalid. Stefl, 21 Vet. App. at 124. The examiner's February 2021 addendum addressing claimed hemorrhoids again reiterates the examiner's position that she could not find records of treatment from 1994 to 1995. Thus, her opinion is again not probative as based on inaccurate facts. Reonal, 5 Vet. App. at 461. Regarding sleep apnea, the examiner in her July 2020 examination report provided an opinion against aggravation of sleep apnea by service-connected nasal fracture with deviated septum, but she based this opinion on the rationale that it was "impossible to say conclusively" that the Veteran's claimed sleep apnea is "directly related" to his service-connected nasal fracture with deviated septum. This is the wrong standard for a service connection claim based on secondary aggravation. The question under 38 C.F.R. § 3.310(b) is whether it is at least as likely as not that the claimed disability was worsened by the service-connected disability, not whether it is "impossible to say conclusively." Ward v. Wilkie, 31 Vet. App. 233 (2019). In a February 2021 addendum, the July 2020 examiner notes other causal risk factors which the Veteran had which may have caused his sleep apnea, and she thereby concludes that it is not at least as likely as not that the Veteran's sleep apnea was "proximately due to or the result of" his service-connected nasal fracture with deviated septum. However, the examiner then fails to address aggravation on a secondary basis, and hence this addendum opinion is also inadequate. The United States Court of Appeals for Veterans Claims (Court) recently held that causation and aggravation are independent concepts and should have separate opinions and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Regarding the claimed ingrown left great toenail, service records reflect a crush injury to the left great toe by a Humvee being on the toe for approximately five minutes in April 1993. Upon remand, the examiner should address any current disability of the left great toe, not limiting inquiry to ingrown toenail. The Board recognizes that the claimed recurrent ingrown toenail may be a symptom of another left great toe condition resulting from the in-service crush injury. Once VA provides an examination in a service connection claim, the examination must be adequate, or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, new examinations are warranted. These should be conducted by a different examiner than the July 2020 examiner, to avoid pre-judgment. The examinations should be conducted by examiners qualified to address the disabilities in question. The matters are REMANDED for the following actions: 1. Obtain any unobtained VA and pertinent private treatment records. 2. Schedule the Veteran for an appropriate examination by an examiner qualified to address the nature and etiology of the Veteran's obstructive sleep apnea. The claims file should be reviewed in conjunction with the examination and any necessary tests or studies should be performed. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should then opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was due to or aggravated by an in-service injury, event, or disease. The examiner should also opine (a) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was caused by his service-connected nose fracture with deviated septum, and separately, (b) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was aggravated (worsened) by his service-connected nose fracture with deviated septum. The examiner must provide separate findings and rationales addressing causation and aggravation. Aggravation does not require that there be "permanent" worsening of the nonservice connected disability. The examiner must provide a complete explanation, supported by facts and medical knowledge, for each opinion expressed. 3. Schedule the Veteran for an appropriate examination by an examiner qualified to address the nature and etiology of the Veteran's hemorrhoids. The claims file should be reviewed in conjunction with the examination and any necessary tests or studies should be performed. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should then opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hemorrhoids developed in service or were otherwise causally related to an event, injury, or disease in service. The examiner must provide a complete explanation, supported by facts and medical knowledge, for each opinion expressed. 4. Schedule the Veteran for an appropriate examination by an examiner qualified to address the nature and etiology of any left great toe ingrown toenail or any condition of the left great toe causal of an ingrown toenail. The examiner should note that an ingrown toenail or underlying great toe condition need not be present at the time of examination, but need only have been present at some time during the claim period to satisfy the current disability requirement under VA law, and hence the examiner should address any left great toe ingrown toenail or any condition of the left great toe causal of an ingrown toenail present at any time during the claim period. The claims file should be reviewed in conjunction with the examination and any necessary tests or studies should be performed. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. Upon reviewing service treatment records, the examiner should note the Veteran's treatment for ingrown toenails in serviced in October 1992 and should note the Veteran's documented crush injury to the left great toe by a Humvee being on the toe for approximately five minutes in April 1993. The examiner should then opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left great toe ingrown toenail or any condition of the left great toe causal of an ingrown toenail present during the claim period at least as likely as not (50 percent or greater probability) developed in service or was otherwise causally related to an event, injury, or disease in service. The examiner must provide a complete explanation, supported by facts and medical knowledge, for each opinion expressed. 5. Thereafter, readjudicate the remanded claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.