Citation Nr: 22015358 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 16-42 904 DATE: March 17, 2022 ORDER Entitlement to service connection for bilateral-foot bone spurs is denied. Entitlement to service connection for rhinitis is granted. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for gastrointestinal disorder is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. The objective medical evidence shows bilateral-foot bone spurs was not incurred during active service or caused by an event, injury or illness occurring in active service. 2. Resolving reasonable doubt in the Veteran's favor, the objective medical evidence shows allergic rhinitis was incurred during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral-foot bone spurs have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. Allergic rhinitis is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2021); 86 Fed. Reg. 42,724 (Aug. 5, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1987 to April 1993 and from November 1995 to December 2006 and in the United States Army from February 2014 to January 2015. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2020). Establishing service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). 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. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96 ; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). 1. Entitlement to service connection for bilateral-foot bone spurs. The Veteran filed for service connection for this and the claims in the following sections in April 2015. A September 2015 rating decision denied the claims and the Veteran in October 2015 initiated and later perfected his appeal in a timely manner. The service treatment records (STRs) show in the December 1986 enlistment and November 1988 fire watch/respirator examinations, the examiners found normal feet and lower extremities. On approximately 10 to 12 dental health questionnaires during the Veteran's periods of active service between October 1990 and November 2004, the Veteran denied past or current painful joints. In a September 2000 periodic examination, the examiner found normal feet and lower extremities and the Veteran reported no past or current foot trouble, or bone, joint or other deformity. In a December 2003 sea-duty examination, an October 2004 overseas examination, a July 2005 sea-duty examination, and the September 2006 Navy separation examination, the Veteran reported no past or current foot trouble, foot surgery or bone, joint or other deformity. An April 2014 foot x-ray shows revealed a small plantar heel spur, but further noted it was consistent with plantar fasciitis. In a January 2015 VA examination for Southwest Asia operation participation, the Veteran reported in experiencing pain in his extremities in the prior 4 weeks. The post-active-service record shows the Veteran was afforded a VA examination for foot conditions in May 2015, in which the examiner stated at the outset the Veteran does not have a current diagnosis associated with the claimed conditions pertaining to this examination of left-foot bone spurs and right-foot bone spurs (as well as left-plantar fasciitis and right-plantar fasciitis). He noted the Veteran's report of a 2014 onset worsening disorders. On examination, the examiner found no signs or symptoms, no functional loss and the Veteran reported no pain when examined. He further noted there were no available imaging studies documenting arthritis. For both right and left-foot bone spurs, the examiner concluded "there is no diagnosis because there is no pathology to render a diagnosis." He gave no opinion on service connection. The May 2015 examiner also completed a Separation Health Assessment, in which, as above, after noting a history of bone spurs, he found the Veteran's feet to be normal. An April 2016 VA Gulf-War Registry examination shows, on review-of-systems questioning, the Veteran denied pain in his extremities. An April 2016 private treatment note shows the Veteran reported he had been diagnosed with bone spurs and presently was experiencing pain in both feet after walking for too long a distance or time. In an April 2018 VA primary care note for the Veteran's annual examination, the Veteran reported he has bone spurs on each foot. The treatment provider's diagnostic impression included only bilateral foot paresthesias. In an August 2019 visit to his private treatment provider, the Veteran denied musculoskeletal arthritis, joint pain, deformities, stiffness, cramps, restricted motion, and weakness. On examination, the treatment provider found no apparent deformities or misaligned bones. In February and July 2020 VA primary care notes, although he reported had not had injections for heel spurs, the Veteran further reported he had no acute problems. The treatment provider assessed the Veteran with heel spurs, adding "he is ready for injections." The Board has carefully considered the Veteran's March 2015 Statement in Support of Claim, associated with the file in January 2020, as well as his reports to treatment providers and examiners as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there would be otherwise no reason to doubt his credibility. Nonetheless, the lay evidence of the Veteran in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Veteran reported to the May 2015 VA examiner that bone spurs had their onset in 2014, in April of which the Board notes the Veteran began his last period of active service. However, in the March 2015 Statement in Support of Claim, the Veteran simply asserts he has bilateral bone spurs which cause chronic pain in both feet and states nothing further on the origin of the disorder. It appears the Veteran's contention of onset of bone spurs in 2014 refers to active service and the Veteran reported the disorders have worsened since then. However, the May 2015 examiner found no signs or symptoms, no functional loss and the Veteran reported no pain on examination. The examiner further noted there was no available imaging studies documenting arthritis. For both right and left-foot bone spurs, the examiner explained there is no diagnosis for the disorder because there is no pathology, that is to say, no signs of the nature of the disorder and no symptoms indicating the effects of that disorder on the Veteran's feet to support any diagnosis. Based on the Veteran's latest reports at VA in February and July 2020, the treatment provider assessed him with heel spurs. The Veteran is already service connected for bilateral plantar fasciitis and has foot pain associated with that disorder. However, there is no medical evidence of record otherwise to establish an in-service manifestation of bone spurs. The findings of the May 2015 VA examination indicate any such disorder in fact had resolved. The medical evidence since that examination up to February 2020 shows no findings or diagnoses of bone spurs. Additionally, as already stated, although the Veteran is competent to provide statements of symptoms pertaining to his feet, nonetheless the Veteran's reports in this period are inconsistent. In determining the credibility of the evidence offered by the Veteran, the Board may consider internal consistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board then must weigh the probative value of the proffered evidence in light of the entirety of the record. For example, as shown above in the summary of the record, in April 2016, the Veteran denied any pain in his extremities, but later in April 2016 reported he has bilateral bone spurs. In April 2018, he again reported bone spurs, but in August 2019 denied any musculoskeletal arthritis, joint pain, deformities, stiffness, cramps, restricted motion, and weakness and the examiner found no apparent deformities or misaligned bones. Based on these contradictory instances in the record, the Board assigns less probative weight to the Veteran's statements as credible evidence. Based on the foregoing, the Board finds there is no evidence establishing a nexus to active service. In short, the record does not support that a bone-spur disorder which could not be detected and diagnosed in May 2015, but which has now apparently been identified and assessed as such at VA in February 2020, is related specifically to an active-service event, injury or illness, nor has the Veteran pointed to one. Therefore, the Board assigns greater probative weight to the May 2015 VA examiner and the VA treatment providers following that examination to at least February 2020, who during their examinations of the Veteran's feet did not find any discernible deformities. Lastly, the Board will briefly note foot disorders suggests at least the possibility of arthritis, which is considered by VA to be a chronic disease eligible for presumptive service connection under 38 C.F.R. § 3.309 (a). However, the record shows no findings of arthritis in service or manifesting to a compensable degree within 1 year of separate from active service and, as already stated, the May 2015 examiner noted there were no available imaging studies in the record documenting any form of arthritis. The presumption of service connection therefore is not available to the Veteran. Based on the evidence of record, both medical and lay, the Board finds no approximate balance of evidence favoring the claim for service connection. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As there is no approximate balance of the evidence for the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Entitlement to service connection for rhinitis. In the December 1986 enlistment examination, the examiner found normal nose, sinuses, mouth and throat. The Veteran reported no medical history of chest pain, cough or wheezing. On a July 1987 dental health questionnaire, the Veteran denied current sinus trouble. In an undated respirator-user-certification examination, the treatment provider found a scattered inspiratory wheeze in the left-lung field, but added this was not a significant problem. Additionally, the Veteran's denied a medical history of allergies, hay fever and shortness of breath. In May 1988, the Veteran presented to sick bay with, among other complaints, mild sinus congestion. On examination, the Veteran showed no tenderness to the frontal, maxillary or temporal sinuses. The treatment provider's assessment included mild upper respiratory infection. In the November 1988 fire watch/respirator examination, the examiner found normal nose, sinuses and mouth and throat. The Veteran reported no medical history of chest pain, cough or wheezing. In a September 1991 naval hospital treatment note, the Veteran reported his medical history as including no past or current chronic cough, phlegm, wheezing, bronchitis, or shortness of breath, but he did report hay fever. On the approximately 10 to 12 dental health questionnaires during the Veteran's periods of active service between October 1990 and November 2004, the Veteran denied past or current sinus problems, hay fever and cough. On several questionnaires, he also denied any allergies. In March 1999, the Veteran presented for what appears to be a follow-up examination for a grass allergy. The treatment provider noted the Veteran had a previous prescription for an antihistamine inhale, with good results and at present exhibited no symptoms. An August 2000 treatment note shows the Veteran presented with a cough and congestion for the past 5 days. After examination, the treatment provider diagnosed upper respiratory infection. In a May 2001 treatment note, the treatment provider noted the Veteran's cold symptoms. Reported as ongoing for the past 2 days, with headaches, eye irritation, sore throat, a non-productive cough, and fever and chills, but he further reported he had no respiratory distress. After physical examination, the treatment provider assessed the Veteran with strep throat/viral conjunctivitis. In the September 2000 periodic examination, the examiner found normal nose, sinuses and mouth and throat. The Veteran reported no past or current sinusitis, shortness of breath, chronic cough, or chest pain or pressure. However, the Veteran did report past or current "[h]ay fever or allergic rhinitis." In the December 2003 sea-duty examination, the October 2004 overseas examination, the July 2005 sea-duty examination, and the September 2006 Navy separate examination, the Veteran denied past or current sinusitis, shortness of breath, wheezing or problems with wheezing, being prescribed use of an inhaler, chronic cough or cough at night, hay fever, and chronic or frequent colds. The post-active-service record shows a January 2015 private treatment note lists allergic rhinitis as a "current health issue." February through July 2015 private treatment notes contain assessments which include allergic rhinitis. In the May 2015 VA examination for sinusitis, rhinitis and other nose conditions, the examiner stated the Veteran does not now have or has ever been diagnosed with a sinus, nose, throat, larynx, or pharynx condition. The examiner noted the Veteran's reports of onset in 2014 when deployed to Afghanistan, but the disorder has resolved. That day's sinus x-ray was unremarkable. The examiner further found the Veteran does not have allergic, vasomotor, bacterial, or granulomatous rhinitis, to include not having obstruction, polyps, turbinate hypertrophy, or any granulomatous condition. For both sinusitis and rhinitis, the examiner concluded he could make no diagnosis because there is no pathology for the disorder. He rendered no opinion on service connection. In the accompanying Separation Health Assessment, he found after noting a history of sinusitis and rhinitis, normal sinuses and mouth and throat, as well as a normal nose. The April 2018 VA primary care treatment provider for the Veteran's annual examination, after reviewing laboratory records included in her diagnostic impression allergic rhinitis. A June 2018 private treatment provider assessed the Veteran with allergic rhinitis. Private treatment findings between July 2013 and December 2018 on physical examination showed a normal external nose, normal nasal mucosa and septum, no sinus tenderness, and a normal oropharynx. In an August 2019 visit to his private treatment provider, the Veteran denied hay fever and nasal obstruction. On examination, the treatment provider found no evidence of sinusitis or rhinitis. In the February 2020 VA primary care note, the Veteran reported he had no history of rhinitis. The foregoing record shows when in active service the Veteran reported a history of hay fever in 1991 and in 2000, but otherwise denied between 1992 and 2004 any allergies and in 4 in-service examinations, to include the separate examination, he denied any history of hay fever or coughs. Although the post-active-service record shows assessments of allergic rhinitis between February and July 2015, the May 2015 VA examiner found the Veteran has no specific and enumerated forms of rhinitis and made no diagnosis. There is an April 2018 diagnostic impression of allergic rhinitis, but in the most recent treatment record in February 2020, the Veteran himself reported at VA he had no history of rhinitis. Nonetheless, VA issued an interim final rule in the Federal Register that VA was amending its regulations (specifically, 38 C.F.R. § 3.320) to establish presumptive service connection for 3 chronic respiratory conditions, to include rhinitis, in association with exposure to fine particulate matter for those Gulf War Veterans who served in Southwest Asia. The effective date was August 5, 2021, for all current respiratory claims pending before VA. See 86 Fed. Reg 42,724 (Aug. 5, 2021). The rule creates two presumptions, a presumption that a veteran who served in the Southwest Asia theater of operations or Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001 was exposed to fine, particulate matter during service and a presumption that asthma, rhinitis, and sinusitis, to include rhinosinusitis, are service connected if they manifest to any degree within 10 years of separation. As a first matter, the Veteran has been service connected for asthma from April 2018. Moreover, as already stated, the Veteran's VA primary care physician treatment provider stated her diagnostic impression of allergic rhinitis in April 2018, his private treatment provider in June 2018 assessed him with allergic rhinitis and the November 2021 VA examiner for respiratory conditions recommended the Veteran follow-up with his pulmonologist for the possibility of needing allergy testing, all of which the Board finds establishes a current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board further finds there is no consistent evidence allergic rhinitis was not incurred during or aggravated by a qualifying period of service; the disease was caused by a supervening condition or event that occurred between the Veteran's most recent departure from a qualifying period of service and the onset of the disease; or the disease was the result of the Veteran's own willful misconduct. Based on the foregoing and the presumption permitted by regulation, the Board finds an approximate balance of evidence favoring the claim and therefore grants service connection for rhinitis. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2021), 86 Fed. Reg 42,724. REASONS FOR REMAND 3. Entitlement to service connection for sinusitis. Although the record offers no diagnosis of sinusitis, as stated in earlier, the November 2021 VA examiner for respiratory conditions recommended the Veteran follow-up with his pulmonologist for the possibility of needing allergy testing. As allergic inflammation is associated with sinusitis and there remains the prospect of establishing presumptive service connection for certain chronic respiratory conditions, to include sinusitis, in association with exposure to fine particulate matter for those Gulf War Veterans who served in Southwest Asia, remand for a VA examination and opinion addressing that possibility is necessary. See 86 Fed. Reg 42,724 (Aug. 5, 2021). 4. Entitlement to service connection for gastrointestinal disorder. The record shows in his March 2015 Statement in Support of Claim, the Veteran asserted he developed a gastrointestinal disorder since his last employment, specifically being intermittent diarrhea and a sense of urgency to use the restroom. The May 2015 VA examiner noted the Veteran's history of gastrointestinal disorder beginning in 2014, after drinking contaminated water when deployed to Afghanistan. Additionally, the Veteran's June 2018 private treatment provider assessed him with gastritis. The record as it stands provides sufficient indication of a current disability or persistent or recurrent symptoms of a disability, establishing an event, injury or disease occurred in service and an indication the disability or persistent or recurrent symptoms may be associated with the Veteran's service or with another service-connected disability. Consequently, there is insufficient competent medical evidence on file for a decision on this claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006) Therefore, remand is necessary for an examination and opinion addressing service connection. 5. Entitlement to service connection for headaches. At the time of the May 2015 VA examination for headaches, the Veteran reported to the examiner his headache disorder had not been formally diagnosed. However, since that examination and after the September 2021 Supplemental Statement of the Case (SSOC), treatment records have been associated with the file showing that the Veteran's private treatment provider in January 2020, after noting the Veteran's report of daily headaches sometimes lasting throughout the day, assessed him with non-intractable episodic headache, unspecified headache type, noting it was of unclear etiology. Moreover, in his March 2015 Statement in Support of Claim accompanying the formal claim for service connection for headaches, the Veteran states "[d]ue to my stress and anxiety levels from my PTSD... I find I grind my teeth which causes headaches." The Veteran is now service connected for PTSD. The above developments in the record show the Veteran raised the issue of aggravation of his headache disorder, now currently diagnosed, by another current disability, now service-connected. Moreover, although the May 2015 examination did not address this issue, as stated in the previous sections, it appears from the record the March 2015 statement was not associated with the claims file until January 2020 and the May 2015 examiner therefore could not have reviewed it. Therefore, remand is necessary for a new VA examination with opinions on service connection, to include specifically addressing the secondary basis of service connection of aggravation by a service-connected disability and re-adjudication of the issue. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for a chronic respiratory disorder, to include sinusitis, a gastrointestinal disorder and headaches at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for examinations by an examiner with appropriate specialties for producing findings for chronic respiratory disorders, to include sinusitis, gastrointestinal disorders and headaches. The complete electronic claims file must be made available to the examiners. The examiners should detail all findings. The examiner for chronic respiratory disorders, to include sinusitis, is requested to render the following opinions. (a) Whether the Veteran has a diagnosis of sinusitis. (b) If so, whether sinusitis was incurred during active service or is caused by an event, injury or illness occurring in active service. (c) Whether the Veteran, having served in the Southwest Asia theater of operations and Afghanistan on or after September 19, 2001, was exposed to fine, particulate matter during service and whether sinusitis has manifested to any degree within 10 years of separation from active service. The examiner for gastrointestinal disorders is asked to provide the following opinion: Whether it is at least as likely as not (a 50 percent or greater probability) gastrointestinal disorder was incurred during active service or is caused by an event, injury or illness occurring in active service, to include water contamination in 2014 during deployment to Afghanistan. The examiner for headaches is requested to render opinions addressing the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) headache disorder was incurred during active service or is caused by an event, injury or illness occurring in active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) headache disorder was increased in severity to any degree (aggravated), regardless of aspects of permanence or natural progression, by service-connected PTSD. The examiner is requested to discuss the Veteran's March 2015 Statement in Support of Claim (associated with the filing January 2020), in which he asserts stress and anxiety levels associated with service-connected PTSD causes him to grind his teeth, thereby inducing headaches. Each opinion produced by the examiners must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiners are requested to comment on any relevant opinions found in the record. The examiners are requested to discuss the Veteran's January 2020 Statement in Support of Claim, as well as his reports to treatment providers and examiners as they appear throughout the record. The Board urges the examiners to note that opinions rendered without discussing such lay evidence as it pertains to the above claims will be deemed insufficient for VA adjudication purposes. 3. After the above development and any other development indicated is completed, review all treatment records associated with the file after the September 2021 SSOC and adjudicate the claims. If the benefit sought is not granted in full, send the Veteran and his representative an SSOC and afford them a reasonable opportunity to respond before the record is returned to the Board. EMILY TAMLYN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.