Citation Nr: 21042015 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 17-41 374 DATE: July 11, 2021 ORDER Entitlement to service connection for bilateral flat feet is granted. REMANDED Entitlement to service connection for a back condition, to include as due to residuals of a cold weather injury is remanded. Entitlement to service connection for a right shoulder condition, to include as due to residuals of a cold weather injury is remanded. Entitlement to service connection for a left shoulder condition, to include as due to residuals of a cold weather injury is remanded. Entitlement to service connection for a right hand condition, to include as due to residuals of a cold weather injury is remanded. Entitlement to service connection for a left hand condition, to include as due to residuals of a cold weather injury is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for renal toxicity, to include as due to exposure to Camp Lejeune Contaminated water (CLCW) is remanded. FINDINGS OF FACT 1. The Veteran's asymptomatic flat feet were noted on his entrance examination. 2. Resolving reasonable doubt in the Veteran's favor, the evidence of record shows that the bilateral flat feet underwent an increase in severity during active duty service, and there is no clear and unmistakable evidence showing that the increase in disability was due to the natural progress of the disease. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral flat feet have been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1974 to May 1976, from June 1979 to June 1982, and from October 2001 to October 2002. This case is before the Board of Veterans' Appeals (Board) on appeal from November 2015, January 2017, and March 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matters are before the Board. The Veteran contends that his current back, shoulders, and hands conditions are a result of cold weather injuries in service. The RO adjudicated a claim of service connection for frostbite as a separate issue, but the representative clarified at the hearing that there is no separate claim for frostbite residuals outside of the service connection claims for back, shoulders, and hands. Therefore, a separate claim for frostbite residuals was not listed on the title page, and these matters will be further addressed in the Remand portion of this decision. The Veteran is seeking service connection for a bilateral flat feet condition. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The provisions of 38 U.S.C. § 1111 provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2020). The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. The evidence shows the Veteran's current diagnosis of bilateral flat feet condition, and the Veteran contends that his bilateral flat feet were aggravated by service. The Veteran's enlistment examination report reflects that he had moderate flat feet which were "not considered disqualifying." Because flat feet were noted at entry, the presumption of soundness does not apply to this disorder. Hence, the issue before the Board is whether the pre-existing bilateral flat feet were aggravated during the Veteran's service. The Veteran's service treatment record (STR) contains treatments for feet complaints. See e.g., April 11, 1975 STR (complaints of feet edematous, numbness, tenderness, and swelling noted); May 26, 1976 STR (complaint of swollen feet noted). The March 2017 VA examiner provided that the Veteran had no issues related to bilateral flat feet condition prior to service, and the onset of the condition was during service with documented painful feet in April and May 1976. The examiner stated that there is evidence of current, chronic, and continuous treatment and care of the condition, and opined that a nexus has been established. During the April 2021 hearing, the Veteran also testified that he experienced frostbite in his feet during service where he could not put boots on or walk properly for a few days. In light of the evidence of in-service treatments related to the Veteran's feet condition and the VA examiner's notation that the symptoms of the his previously asymptomatic flat feet had its onset in service, the Board resolves reasonable doubt in the Veteran's favor and finds that the Veteran's bilateral flat feet condition underwent an increase in severity during active service. Moreover, there is no clear and unmistakable evidence showing that the increase in the bilateral flat feet condition was due to the natural progress of the disability. Consequently, the Board resolves any reasonable doubt in the Veteran's favor and finds that his entitlement to service connection for bilateral flat feet is warranted. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2020). REASONS FOR REMAND The Veteran is also seeking service connections for a back condition, a bilateral shoulder condition, a bilateral hand condition, a bilateral knee condition, and renal toxicity. 1. Service connection claims for back, shoulders, and hands As noted above, the Veteran contends that his current back, shoulders, and hands conditions are a result of his cold weather injury in service. The Board notes that the Veteran's cold weather injury was documented in his STR. See e.g., April 11, 1975 STR (the Veteran was seen right after returning from a field, and the examiner noted that his feet complaint may be frostbite). During the April 2021 hearing, the Veteran testified that he got frostbites in his hands and feet in 1975 when he was serving in Germany. He also testified that he has been always cold and does not have good circulation in his hands, feet, and shoulders ever since the in-service cold weather injury, and his back pain started with the cold weather injury as well. The Veteran stated that he had joint and circulation problems in the first year or two after his separation where he is getting cold at any time and cramping up. The Board finds the Veteran competent and credible to provide his symptoms and history. The Board acknowledges that the Veteran underwent a VA examination for cold injury residuals in June 2017. However, the Board notes that the only complaint addressed during this examination was the Veteran's bilateral feet condition. Thus, the June 2017 VA examination was not adequate to determine the nature and etiology of the Veteran's current conditions of back, shoulders, and hands as it relates to his in-service cold weather injury. Consequently, the Board finds that a remand is necessary to obtain VA examinations by appropriate medical examiners for these conditions prior to final adjudication. 2. Service connection claim for knees The Veteran contends that his current bilateral knee condition is due to his in-service injury. His in-service knee injury and complaints were documented in the STR. See e.g., January 7, 1975 and September 15, 1975 STRs. As to the current knee disability, the evidence of record shows the Veteran's complaints of knee pain and osteoarthritis of the knees. See e.g., July 2016 Primary Care Note. However, none of the Veteran's recent complaints or diagnosis found in his medical records were noted during the June 2017 VA examination for knee conditions. Also, the Board notes that no diagnostic testing of the knees was completed during the examination. In light of the foregoing, the Board finds that the Veteran must be afforded a new VA examination for knee conditions prior to final adjudication of the matter in order to make a fully informed decision. 3. Service connection claim for renal toxicity The evidence of record shows that the Veteran currently has a diagnosis of an end-stage renal disease (ESRD). The Veteran contends that his current ESRD is a result of his exposure to CLCW. With his service at Camp Lejeune from February 1982 to March 1982, the Veteran's exposure to CLCW is conceded. A VA medical opinion was obtained in January 2018 and the examiner provided an addendum opinion in September 2018. The VA examiner provided a negative etiology opinion as to the association between CLCW exposure and the Veteran's current ESRD. The Veteran's private physician M.G. opined in February 2018 that it is possible that the Veteran's exposure to CLCW, specifically trichloroethylene (TCE), may have contributed to his kidney disease. In this regard, the Board notes a publicly available March 2015 publication by Institute of Medicine (IOM), entitled Review of VA Clinical Guidance for the Health Conditions Identified by the Camp Lejeune Legislation. In the report, the committee recommended VA to consider accepting patients with chronic kidney disease into the Camp Lejeune program, even without having evidence of kidney damage during or around the time of residence at Camp Lejeune program, if there are no other more likely causes of their kidney disease. The committee reported that there is accumulating evidence that acute renal injury, as might occur soon after exposure, significantly increases the likelihood that chronic kidney disease will appear many years later; and such an effect can occur even if the acute injury is subclinical and thus not detected at the time of exposure. The committee acknowledged that the association between TCE and perchloroethylene (PCE) and chronic kidney disease is less clear, but there does appear to be an association between exposures to high levels of these solvents and ESRD. The committee stated that the evidence indicates that chronic kidney disease in Camp Lejeune residents is likely due to other causes, but the role for solvent exposure cannot entirely be ruled out. In light of the foregoing, the Board finds that an addendum opinion that addresses both the February 2018 Dr. M.G. opinion and the March 2015 report published by IOM should be obtained prior to final adjudication of the matter. Accordingly, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should schedule the Veteran for an examination by appropriate medical examiners to determine the nature and etiology of the Veteran's current conditions for back, shoulders, and hands. The examiners must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. (a.) Each examiner is specifically asked to consider the Veteran's April 2021 hearing testimony regarding the onset of his symptoms related to back, shoulders, and hands. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. (b.) The examiner must opine whether the Veteran's current back condition is at least as likely as not (50 percent or greater probability) related to an in-service cold weather injury, or otherwise had its onset in service. (c.) The examiner must opine whether the Veteran's current bilateral shoulder condition is at least as likely as not (50 percent or greater probability) related to an in-service cold weather injury, or otherwise had its onset in service. (d.) The examiner must opine whether the Veteran's current bilateral hand condition is at least as likely as not (50 percent or greater probability) related to an in-service cold weather injury, or otherwise had its onset in service. (e.) The examiner must provide a complete written rationale for any opinion offered. 2. The AOJ should schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of his current bilateral knee condition. The examiners must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. (a.) The examiner must opine whether the Veteran's current bilateral knee condition is at least as likely as not (50 percent or greater probability) related to his in-service injury, or otherwise had its onset in service. (b.) The examiner must provide a complete written rationale for any opinion offered. Also, importantly, if the examiner cannot provide an opinion, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond based on given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 3. The AOJ should obtain an addendum opinion from an appropriate medical examiner, other than the January 2018 VA examiner, regarding the Veteran's service connection claim for renal toxicity. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner should review the Veteran's claims file and a copy of this REMAND order before rendering the requested addendum opinion. (a.) The examiner must opine whether the Veteran's current ESRD is at least as likely as not (50 percent or greater probability) related to his exposure to CLCW or otherwise had its onset in service. (b.) When rendering the opinion, the examiner is specifically asked to consider and address the February 2018 Dr. M.G. opinion and the March 2015 publication by IOM, entitled Review of VA Clinical Guidance for the Health Conditions Identified by the Camp Lejeune Legislation, available at https://www.ncbi.nlm.nih.gov/books/NBK284982/. (c.) The examiner must provide a complete written rationale for any opinion offered. 4. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.