Citation Nr: 21040335 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 14-29 163A DATE: July 3, 2021 ORDER Service connection for arthritis of the right foot is granted. Service connection for arthritis of the left foot is granted. REMANDED Service connection for neuropathy is remanded. FINDINGS OF FACT 1. The probative evidence of record is at least in equipoise as to whether the Veteran's arthritis of the right foot is etiologically related to active duty service. 2. The probative evidence of record is at least in equipoise as to whether the Veteran's arthritis of the left foot is etiologically related to active duty service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for arthritis of the right foot have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for arthritis of the left foot have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from October 1978 to October 1981 and in the Army from March 1983 to April 1983. These matters are on appeal from a February 2014 rating decision. In a June 2018 decision, the Board remanded the claims listed on the title page to attempt to afford the Veteran a VA examination. The Agency of Original Jurisdiction (AOJ) has done so. The Veteran was afforded a VA examination of his feet in April 2019 and an addendum opinion by the same VA clinician in March 2021. The VA examination is adequate with regard to the claims being decided below because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes his foot symptoms in detail sufficient to allow the Board to make fully informed determinations. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). There was therefore substantial compliance with the remand directives with regard to the claims being decided below. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded claims for service connection for arthritis of the left shoulder, arthritis of the left knee, human immunodeficiency virus (HIV), posttraumatic stress disorder (PTSD), and an acquired psychiatric disorder, as well as for a total disability rating based on individual unemployability (TDIU). a claim for service connection for atrial fibrillation or atrial flutter. In a June 2020 rating decision, the AOJ granted service connection for bipolar disorder (also claimed as severe depression with identity crisis, PTSD, and sleep disorder), HIV, left shoulder degenerative arthritis, and left knee degenerative arthritis and patellofemoral pain syndrome. In a February 2021 rating decision, the AOJ granted a TDIU on and after January 26, 2002. These issues are no longer before the Board. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1) (2019); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Arthritis of the Right Foot 2. Arthritis of the Left Foot The Veteran contends that he has arthritis of both feet that is etiologically related to his active duty service. During a May 2003 VA treatment appointment, the Veteran reported worsening arthralgias for the past three to four months, including pain in both feet. In his August 2014 substantive appeal (VA Form 9), the Veteran reported that arthritis was diagnosed within one year of his separation from active duty service and that his duties "involved constant physical labor that was the basis for some of [his] arthritis." He did not specify whether the arthritis that was diagnosed included his feet. August 2018 VA x-rays showed degenerative changes in both of the Veteran's feet. The Veteran was afforded a VA examination for foot conditions in April 2019. The clinician diagnosed bilateral plantar fasciitis and opined that it was less likely than not related to active duty service. However, in a March 2021 addendum opinion, the same clinician found that the Veteran's radiographs noted arthritis of both feet and that this "represents chronic changes that represents normal aging as well as increased joint stress." The clinician deemed the Veteran a reliable historian and took his "account of heavy physical exertion (over use) during his routine job duties" as authentic. The clinician further noted that joint stress is a known risk factor for degenerative joint disease. For these reasons, the clinician opined that it is at least as likely as not that the Veteran's degenerative joint disease of both feet is related to his military service. The March 2021 VA medical opinion is favorable to the Veteran's claim with regard to arthritis. The opinion includes a persuasive rationale and the record contains no medical opinion to the contrary with regard to this disability. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran's favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran's arthritis of both feet is etiologically related to his active duty service. Accordingly, the Board finds that granting service connection for arthritis of the right and left foot is the decision that is the most consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). REASONS FOR REMAND 1. Service connection for neuropathy is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Multiple VA treatment records note the possibility that the Veteran's HIV, which is now service-connected, might be among the causes of his neuropathy. The medical opinions of record do not address this theory of service connection. For that reason, a remand is warranted to obtain an additional medical opinion. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of his neuropathy. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a. Whether it is as least as likely as not that any current neuropathy was caused by the Veteran's service-connected HIV. b. Whether it is as least as likely as not that any current neuropathy was aggravated beyond its natural progression by the Veteran's service-connected HIV. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. An October 1999 VA treatment record noting a diagnosis of chronic peripheral neuropathy. b. A September 2014 VA treatment record characterizing the Veteran's neuropathy as "from DM and HIV." c. An August 2017 VA treatment record noting neuropathic pain "that could because (sic) of poor DM control and/or HIV." d. An April 2021 statement in which the Veteran contended that he did not develop diabetes "until approximately 2010" and that his neuropathy "far precedes the aforementioned date." The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 2. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.