Citation Nr: 22014022 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-13 855 DATE: March 11, 2022 ORDER Entitlement to service connection for left ankle residuals from an in-service softball injury, to include a left tibial stress fracture and left foot stress fracture with loss of strength and pain with orthotics is granted. Entitlement to service connection for bilateral pes planus (flat feet) with orthotics is granted. FINDINGS OF FACT 1. There is evidence both for and against a finding that the Veteran's left ankle residuals are related to her in-service softball injury and, therefore, the evidence is at least evenly balanced. 2. There is evidence both for and against a finding that the Veteran currently has pes planus, but the persuasive evidence of record favors a finding that she currently has bilateral pes planus and that her pes planus was first incurred in or is otherwise related to her military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals from an in-service softball injury, to include a left tibial stress fracture and left foot stress fracture with loss of strength and pain with orthotics have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral pes planus (flat feet) with orthotics 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 served on active duty from July 2005 to July 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by a VA Regional Office (RO). This matter was previously before the Board in March 2021. At which time, the Board remanded the Veteran's claims, to include entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine, for further development. Subsequent to the Board's remand, in a June 2021 rating decision, the RO granted service connection for thoracic spine with DDD of the lumbar spine. This being a complete grant of the benefits sought, these claims are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). A June 2021 rating decision, after development of these claims, granted service connection for bilateral plantar fasciitis, shin splints, and left foot ganglion cyst. Although these grants do compensate the Veteran's bilateral lower extremities' disabilities, they are not specifically responsive to her appeals claiming bilateral pes planus and left ankle softball injury residuals. As such, these grants do not represent a complete grant of the benefits sought and, therefore, the appeals are still before the Board here. Cf. id. The Board notes that upon review of the claims file, the resulting opinions of record are not wholly responsive to the Board's remand directives and, therefore, further remand would typically be appropriate. See Stegall v. West, 11 Vet. App. 268, 271(1998). However, as will be discussed in greater detail below, the Veteran has submitted additional probative medical evidence which supports a grant of the benefits sought. Therefore, an additional remand is not necessary given the favorable nature of the decision herein, as there is no prejudice to the Veteran. The Board notes, that the Veteran submitted this additional medical evidence after the November 2021 Supplemental Statement of the Case (SSOC) which normal requires initial consideration by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. §§ 19.31, 19.37. However, recognizing this, VA sent a letter to the Veteran requesting a waiver of AOJ consideration in December 2021. The Veteran in January 2022 provided said waiver in response. Therefore, this evidence was reviewed and considered by the Board in preparation of this opinion. The Board notes, as was noted in the prior Board remand, that the Veteran informed the undersigned during the December 2020 hearing of a change in her last name. This change is indicated herein, but the Veteran is once again informed that her claims file has not been officially updated and she must contact her Regional Office to formally update her last name in VA's system to avoid future discrepancies. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection 1. Entitlement to service connection for residuals from an in-service softball injury, to include a left tibial stress fracture and left foot stress fracture with loss of strength and pain with orthotics is granted. 2. Entitlement to service connection for bilateral pes planus (flat feet) with orthotics is granted. The Veteran contends that she experiences left ankle and tibia residuals from an in-service softball injury. She also contends that she developed flat feet as a result of her in-service injuries. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a causal connection or "nexus" between the claimed in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d. 1163, 1166-67 (Fed. Cir. 2004). The Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or when the evidence is "nearly equal," it does not require the evidence to be in exact equipoise. See Lynch v. McDonough, 999 F. 3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021). Evidence is considered in approximate balance when the evidence in favor of and opposing the Veteran's claim is found to be almost exactly or nearly equal. Here, the Board finds that the evidence, at a minimum, is in approximate balance, with regard to these claims and, therefore, service connection is warranted. At the outset, the Board concedes the Veteran has a documented in-service injury in 2006 when she was hit in the left ankle with a softball. The Veteran competently and credibly testified in December 2020 that she suffered a left ankle injury during service when she was hit with a softball. Her service treatment records (STRs) corroborate this injury and subsequent treatment to include a diagnosis of flat feet with use of orthotics. See April 2009 and May 2009. Thus, the Board notes the Veteran clearly had an in-service injury and subsequent treatment. The remaining question is whether the Veteran's current left ankle, tibia, and flat feet conditions are causally related to the in-service injury. Post-service treatment records document a lengthy history of and treatment for left ankle and bilateral foot pain to include left peroneal tendonitis, left ankle arthroscopy and repair of anterior talofibular ligament, repeated left ankle sprains, and multiple reports of pain before and after arthroscopic procedures. In June 2019, the Veteran was afforded a VA examination to determine the nature and etiology of her left ankle/tibial condition. The examiner found that the Veteran had bilateral knee strain. Of note, as part of the Veteran's pes planus examination, she was found to have bilateral ankle degenerative arthritis. The June 2019 examiner stated that the Veteran's bone scan from 2006 did not show conclusive evidence of a stress fracture of the left tibia and imagining from the 2019 examination was normal. Ultimately, the examiner provided a negative nexus opinion declining to find a relationship between the Veteran's current left ankle and tibia conditions her in-service softball injury. Also, in June 2019, the Veteran was afforded a VA examination for her bilateral pes planus condition. Upon examination, the June 2019 examiner found no physical evidence that the Veteran has bilateral pes planus. Thus, the examiner offered a negative nexus opinion reasoning that the Veteran has no physical evidence of any fallen arches. In the March 2021 decision, the Board found the June 2019 examinations and opinions to be inadequate for adjudicative purposes and therefore, remanded the Veteran's claims to afford her new examinations for the claimed conditions. In particular, the Board previously directed the examiner to consider the conceded in-service softball injury to the Veteran's left ankle, her lay statements describing continuity of symptomatology since service, and April 2009 and May 2009 service treatment records where the Veteran was specifically treated for flat feet and prescribed orthotics. To the extent the Veteran was found to not have pes planus, the Board directed the examiner to reconcile the conflicting medical evidence and the Veteran's lay statements of using orthotics and her continuous symptoms of arch pain throughout time. It is clear that the subsequent VA examinations did not reexamine the Veteran's feet or consider the 2009 service treatment records as directed. Rather, the subsequently obtained VA examinations either left the pes planus portion of the examination blank or referenced the June 2019 VA examiner's findings of "no" diagnosis of pes planus. In particular, the Veteran was afforded a VA foot conditions examination in April 2021. At that time, the Veteran was diagnosed with plantar fasciitis and left foot excision of ganglion cyst residuals. The examiner noted that the Veteran reported pain and tenderness in her left foot however, the section for pes planus (flat feet) was not completed. Ultimately, the April 2021 examiner opined that there was no objective evidence of pes planus referencing the June 2019 VA examination, which found no evidence of any fallen arches or flat feet on the left foot. The Veteran was also afforded a VA ankle examination in April 2021. At that time, the Veteran was diagnosed with left lateral collateral ligament sprain and left ankle instability. The Veteran reported experiencing daily flare ups with ankle pain lasting hours. The examiner noted left ankle range of motion was abnormal with pain during testing. Evidence of pain with weight bearing, non-weight bearing, active and passive motion, and upon rest or movement was further noted. Functionally, the examiner stated it was painful and difficult to run due to her left ankle pain, therefore, the Veteran would have difficulty performing jobs that required running. Also, in April 2021, the Veteran was afforded a knee and lower leg examination. During examination, she was diagnosed with a left knee strain and shin splints. A June 2021 medical addendum opinion was provided which again reiterated that there was no diagnosis of fleet feet because there were no findings of bilateral pes planus. The examiner did not base this opinion on a contemporaneous examination, but rather the findings of the 2019 VA examiner. There was also no reconciliation or consideration of the 2009 service treatment records, which indicated the opposite that the Veteran had flat feet treated with orthotics. As noted in the introduction, a June 2021 rating decision subsequently granted service connection for bilateral plantar fasciitis, shin splints, and left foot ganglion cyst after the above examinations. In August 2021, the RO asked and obtained an addendum medical opinion from the June 2021 examiner concerning the Veteran's left ankle residuals. The examiner clarified her earlier reports to indicate "the Veteran's left ankle strain is less likely incurred during active duty". The examiner noted that the Veteran's medical records did not indicate any chronic left ankle pain during active duty, within a year of discharge or immediately after discharge from service. However, the examiner did note "etiology of left foot strain and left tib/fib strain is likely due to strenuous military activities". The RO once again obtained an addendum medical opinion in October 2021 to clarify the June 2021 examiner's opinion provided in August 2021. This time, the examiner stated the Veteran's "left ankle residuals are less likely than not incurred in or caused by an in-service event, injury, or illness, to include the Veteran's in-service softball injury". The rationale was that there was no record of left ankle strain during service after initial injury nor were there records of continued complaints of left ankle or knee pain after service "thus no nexus of chronicity". In support of her claim, the Veteran submitted a private medical opinion dated November 2021 from certified physician assistant, L.B. In her correspondence, L.B. also indicated that she is certified to perform VA examinations and has been contracted by VA to provide medical opinions and perform examinations for other veterans. L.B. then provided a summary of the Veteran's medical history, to include the report of onset of her softball injury during service in March 2006. It was noted that immediately after the injury, the Veteran was evaluated at the emergency room with primary care follow up and x-rays that showed "stress related changes". L.B. further noted, that the Veteran continued to experience left leg pain as well as bilateral foot pain as indicated by multiple STRs in 2009. The Veteran's separation examination in May 2009 also contained reports of chronic foot and ankle pain with instability and the use of orthotics. Post service, in 2011 the Veteran was evaluated for continued foot and ankle pain at VA. In 2013, she was referred to physical therapy for treatment for left ankle and foot pain. Ultimately, L.B. opined that "it is more likely than not that [the Veteran's] ankle residuals from an in-service softball injury, to include left tibial stress fracture, a left foot stress fracture with loss of strength and pain, are a direct result of her military service" She also opined, "it is at least as likely as not that her acquired flat feet, first diagnosed on active duty are related to the injuries she sustained by way of disruption of the normal foot mechanics, essentially wearing out the supporting arch support structures thus creating an acquired flat foot". In support of her opinion, L.B. cited to several medical articles which indicate that injuries to the ankles and feet "commonly result in chronic pain and disabilities". "These articles highlight the commonality for ankle sprains to cause significant chronic pain and deficits, which mirror [the Veteran's] own reported history". In addition, L.B. opined that the Veteran's medical treatment records show "continuum of care" since onset with no disruption since service. Lastly, L.B. indicated that the opinions of the April and June 2021 VA examiner were inaccurate. Specifically, she opined that the examiner failed to properly review the Veteran's STRs and post service treatment records because the opinions provided noted no follow up for the Veteran's ankle after 2006 in her STRs. However, there are numerous notations throughout, to include the Veteran's separation examination in May 2009. While the Board finds all medical opinions of record are competent, not all opinions are afforded equal probative value. See D'Aries v. Peake, 22 Vet. App. 97, 107 (2008) (it is within the purview of the Board to evaluate the medical evidence and favor one medical opinion over another). The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge, and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Here, the Board finds the November 2021 private medical opinion provided by clinician L.B. to be of more probative value than the VA examinations of record. For one, the April and June 2021 examiner's various opinions failed to address or otherwise reconcile the significance of multiple documented injuries during service as well as the Veteran's lay statements regarding injuries. As discussed above, the Veteran's STRs document an in-service softball injury resulting in stress related changes and closed fractures to the left second, third, fourth and fifth metatarsals. Subsequent STRs reference continued pain and other injuries to the left foot, ankle, and tibia. At separation, the Veteran reported foot trouble, chronic ankle sprain, and stress related injury in left tibia. Post-separation records reference left peroneal tendonitis, left ankle arthroscopy and repair of anterior talofibular ligament, repeated left ankle sprains, and multiple reports of pain before and after the arthroscopic procedure. See Cf. Polovick v. Shinseki, 23 Vet. App.48 (2009) (finding an examiner's opinion inadequate if not based on a veteran's specific medical history, risk factors, and military history); see also Miller v. Wilkie, 32Vet.App.249 (2020) (holding when an examiner fails to address the Veteran's lay evidence, and the Board does not find the Veteran not credible or not competent to offer that lay evidence, a new exam is needed). Second, the VA examiner continuously failed to address the Veteran's in-service diagnosis of bilateral flat feet when offering the negative nexus opinions of record. In contrast, the examiner repeatedly stated there was no current objective evidence of pes planus without further explanation. Aside from the 2009 service treatment records showing a historical diagnosis of flat feet treated with orthotics, the Board notes that the Veteran's current private treatment records from Dr. Daines dated in December 2020, also indicate the active medical diagnosis of bilateral pes planus, which also was not addressed or reconciled by the VA examiner. For this reason, the Board finds the VA examiner's opinion to be non-probative. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). In contrast to the relatively brief rationales provided by the April and June 2021 VA examiner and her addendums, the November 2021 opinions provided by clinician L.B. included a detailed synopsis of the Veteran's reported in-service injury and medical history, as well as reference to supporting medical literature providing a detailed rationale in all opinions expressed. The April and June 2021 VA examinations and opinions, along with the several addendum opinions, amount to a series of conclusionary opinions without adequate rationales nor adequate consideration of all relevant medical evidence. For these reasons, while the Board has afforded some probative value to the April and June 2021 examiner's opinions with several addendums, such was not given as much weight as the November 2021 private opinion by clinician, L.B. and objective medical evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). (Continued on the next page) In short, with regard to the left ankle appeal, the Board finds there is both evidence for and against the Veteran's claim and the evidence is at a minimum at least in approximate balance. See Lynch, 999 F. 3d 1391. Affording the Veteran the benefit of the doubt, the appeal must be granted. Id. With regard to the Veteran's pes planus claim, the Board finds the persuasive evidence weighs in favor of the appeal and, therefore, the appeal is also granted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.