Citation Nr: 22016802 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 18-06 048 DATE: March 23, 2022 ORDER Entitlement to service connection for bilateral foot disability is denied. REMANDED Entitlement to an evaluation in excess of 10 percent effective January 1, 2015, for coronary artery disease status post coronary artery bypass graft (CABG) surgery is remanded. Entitlement to an initial compensable rating for residual scars status post CABG surgery is remanded. FINDING OF FACT The weight of the evidence is against finding his bilateral foot disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral foot disability were not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Army from June 1966 to May 1969. This matter is on appeal to the Board of Veterans' Appeals (the Board) from January 2015, April 2017, and September 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In his January 2019 Form 9, the Veteran requested a Board hearing. However, in the June 2019 motion for advancement on the docket, the Veteran submitted a written statement indicating he wished to withdraw his request for a hearing. As such, the Board considered the hearing request withdrawn. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In September 2019, November 2020, and May 2021, the Board remanded the Veteran's claims for additional development. 1. Entitlement ot service connection for bilateral foot disability is denied Applicable Law and Regulations Direct service connection can be established if the Veteran shows (1) the existence of a present disability, (2) an 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 or aggravated during service. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements of Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran contends his feet issues are due to his active service. The Veteran was diagnosed with degenerative arthritis, which is a chronic disease under 38. C.F.R. § 3.309(a). However, this condition was not diagnosed in service or shown to manifest to a compensable degree within one year of his release from active service. A May 1966 service treatment record noted a normal clinical evaluation except for an achilles tendon tear in 1958. The May 1969 separation examination showed a normal clinical evaluation. A November 2002 private treatment record noted the Veteran underwent a cheilectomy of the first metatarsophalangeal joint of the right foot. Following the procedure, he was diagnosed with hallux rigidus of the right foot, degenerative joint disease, and osteoarthritis of the first metatarsophalangeal joint of the right foot. In January 2016, he complained to VA treating providers of bilateral foot pain on the bottom of his feet for years. In March 2016, he reported pain to the plantar heels, along the arch, and in the balls of his feet. This pain was worse with weight bearing. He was diagnosed with plantar fasciitis, hallux rigidus, metatarsalgia, tarsal tunnel syndrome, and pes planus. He presented at the VA medical center (VAMC) in April 2016 to pick up his new custom foot orthotics (CFOs). The Veteran has the following current disabilities: bilateral flat foot, bilateral metatarsalgia, bilateral hammer toes, bilateral degenerative arthritis, right foot hallux rigidus, and bilateral peripheral neuropathy. As such, the first Shedden element is met. In August 2018, the Veteran submitted an affidavit. He reported prior to service, around 13 or 14 years old, he tore his left achilles tendon. However, this injury was fully healed by high school. He reported normal findings at his entry examination. During his service in Vietnam, he was exposed to swampy and humid temperatures. He tried to maintain healthy feet with powder and extra socks, but it was difficult to keep his feet dry. His skin was frequently peeling due to the moist conditions. Additionally, his boots were uncomfortable due to a metal plate in the sole to prevent penetration of the boot by sharp objects. The Veteran believes that due to the conditions described above he developed feet issues in service. He noticed a burning sensation on the bottoms of his feet and pain in the 1990s, which have continued to the present. His pain is exacerbated by activity. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's service treatment records are silent for complaints of foot pain or in-service injury. However, giving the Veteran every benefit of the doubt, the Board finds that he sustained in-service injuries to his feet, which were not documented in his service treatment records. As such, the second Shedden element is met. Therefore, the question to be decided in the present appeal is whether the current bilateral foot disability was caused by or the result of the Veteran's active service. The preponderance of the evidence is against finding that the Veteran's bilateral foot disability is related to his active service. In an April 2017 VA examination, the Veteran was diagnosed with tarsal tunnel syndrome. He reported decreased sensation in the distal sole and heel of the left foot as well as pins and needles. His pain increased with five to 30 minutes of weight bearing or walking. In September 2019, the Board remanded the Veteran's claim finding the April 2017 VA examination was inadequate. The examiner failed to provide an etiology opinion despite diagnosing tarsal tunnel syndrome. In an August 2020 VA examination, the Veteran was diagnosed with bilateral hammer toe, right foot hallux rigidus, bilateral degenerative arthritis, and bilateral pes planus. The Veteran reported chronic, sharp bilateral foot pain for five to 10 years. His experienced pain flare ups with activity such as prolonged standing and walking as well as changes in weather. Specifically, cold and damp weather aggravated his feet conditions. The August 2020 VA examiner opined there was no documented subjective complaints or objective diagnosis of degenerative arthritis on active duty. There was no objective continuity of care or subjective complaints from his time in service for degenerative arthritis. There is no physiologic mechanism by which wearing boots and wet feet during service over 40 years ago could cause degenerative arthritis which manifested many decades later. There is no cause-and-effect relationship between degenerative arthritis decades after military service and wearing boots and wet feet during service. Degenerative arthritis is related to normal age progression. The August 2020 VA examiner indicated an inability to review the entire record given the time allotted for examination, and that it was possible relevant information was not considered. In October 2020, the Veteran's representative argued that the August 2020 VA opinion was inadequate because the examiner did not review the entire claims file and while bilateral hammer toe, right foot hallux rigidus, and bilateral pes planus were diagnosed the examiner did not address their etiology. In November 2020, the Board remanded the Veteran's claim finding the September 2019 remand directive did not require the VA examiner to review the entire claims file; however, based on the examiner's statement that relevant information might not have been considered it was unclear if the examiner reviewed all the relevant evidence of record to provide an opinion on the conditions affecting the Veteran's bilateral feet. Additionally, by not addressing the etiology of the Veteran's diagnosed hammertoe and hallux rigidus, the examiner failed to comply with the September 2019 remand directive. Therefore, the August 2020 VA examination was accorded little probative weight. In a January 2021 VA examination, the Veteran as diagnosed with bilateral flat foot, bilateral metatarsalgia, bilateral hammer toes, bilateral degenerative arthritis, right foot hallux rigidus, and bilateral peripheral neuropathy. The examiner noted that the Veteran's feet diagnoses were described as bilateral foot disability. It was less likely than not that his feet disabilities were incurred in or caused by his active service. His service treatment records made no mention of flat feet in the enlistment examination. He was diagnosed in 2016 indicating this was an acquired condition later in life. Hammer toes are also a phenomenon of age caused by the subluxation of the MTP joints as the ligaments weaken after years of use. This subluxation is also why there is pain in the balls of his feet (i.e., metatarsalgia). Likewise, degenerative arthritis is a wear and tear disorder which has several risk factors including age, previous injury or surgery, and familial inclination. The Veteran's service treatment records had no documentation of foot pain or injury and the Veteran denied injury other than wearing military boots for three years. This is insufficient to affirm a cause/effect for osteoarthritis. The Veteran underwent surgery on the right foot, but this occurred 35 years after military service and the causal factor that led to surgery was not documented nor was there evidence that it was related to military service. Symptoms of burning pain and numbness began about eight years ago and are consistent with peripheral neuropathy. Osteoarthritis is an accepted cause for early-onset peripheral neuropathy; however, his symptoms began 40 years after service and are more likely due to other chronic health issues. In May 2021, the Board remanded the Veteran's claim for an addendum opinion regarding the etiology for his hallux rigidus. In August 2021, an addendum opinion to the January 2021 VA opinion was provided. The examiner opined it was less likely than not that the Veteran's hallux rigidus was incurred in or caused by the claimed in-service injury, event, or illness. The Veteran's service treatment records had no documentation of foot pain or injury during service. He denied injury other than the wearing of military boots for three years. Hallux rigidus is Latin for stiff toe and related to degenerative arthritis of the big toe. The recognized risk factors for this condition includes being female (66 percent of cases), having a family history, having an abnormal foot anatomy (service treatment records make no mention of this), injuries (such as stubbing the toe), and overuse. Overuse would occur over a long period of time and cannot be tied to his three years in service in the absence of any unusual event. The Board notes the representative's argument in the February 2022 appellate brief that the July 2021 opinion was inadequate because the examiner failed to properly consider the Veteran's reported symptoms in the August 2018 affidavit. However, the Board notes that the May 2021 remand did not request that the VA examiner specifically address the August 2018 affidavit in rendering the opinion. Additionally, the VA examiner clearly noted that her opinions were based on a review of the VA e-folder and electronic health records. Therefore, the January 2021 and August 2021 VA opinions were found probative because they relied on sufficient facts and data and provided a rationale for the opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Based on the evidence of record, the Board found that entitlement to service connection for bilateral foot disability was not warranted. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent effective January 1, 2015, for coronary artery disease status post CABG surgery is remanded. The Veteran was service connected for coronary artery disease status post CABG and evaluated at 100 percent disabled effective October 9, 2014 to January 1, 2015, and 10 percent disabled from January 1, 2015, on. He contends he is entitled to an evaluation in excess of 10 percent for his coronary artery disease. In May 2021, the Board remanded the Veteran's claim finding the February 2021 VA examination did not allow for determination of a proper rating under 38 C.F.R. § 4.104, DC 7017. The examiner commented that his interview based METs limitations were due to multiple medical conditions including the heart condition and the examiner could not accurately estimate the limitation due to each condition. The examiner noted severe COPD, which in addition to his age and deconditioning, was the primary limitation measured by the interview based METs. The claim was remanded to afford the Veteran a VA examination with a cardiologist to assess the severity of his coronary artery disease. In August 2021, a VA examination by a physician assistant, not a cardiologist, was provided. The examiner opined the interview based METs test showed a workload between 1-3 METs resulting in dyspnea, fatigue, and dizziness. The Veteran's METs level due solely to his cardiac condition was greater than 5-7 METs. The Veteran is relatively healthy except for his severe pulmonary disease. At 77 years old one would not expect him to jog at 6 mph or perform activities at the 7-10 range. Therefore, if he did not have the pulmonary condition, his estimated METs would be greater than 5-7 METs. The Veteran had a heart attack in 2014 due to obstructed native vessels. Following a successful CABG surgery, he had no reported cardiac symptoms. His left ventricle ejection fraction (LVEF) is 65 percent. This case was discussed with a cardiology provider at VAMC, who concurred that his heart disease has not progressed and remained stable and asymptomatic. His primary complaint was shortness of breath after complicated pulmonary history including mycobacterium infection with resultant severe COPD and early emphysema. In December 2021, an addendum opinion was provided by Jose Ortiz, a cardiologist. Doctor Ortiz indicated reviewing pertinent scanned documents. He was providing his expertise to give further insight into the potential contribution of coronary artery disease to the Veteran's functional capacity including whether he had chronic congestive heart failure. The Veteran had severe pulmonary disease noted in multiple studies. A November 2019 pulmonary function test showed severe small obstruction with marked reduction in FEV1 and all flow indicators, severe air trapping, and severe large airway obstructive disease. He had mycobacterium avium-intracellulare infection (MAI) in the past with persistent severe asthma. In September 2014, he had a myocardial infraction and CABG surgery. Both a September 2020 and January 2021 echocardiogram revealed normal results. Overall, Doctor Ortiz found the Veteran's coronary artery disease was not a factor that could impair his functional capacity. His degree of pulmonary condition was such that the ejection fraction was a better determinant of potential contribution to symptoms than the METs. There was no evidence of cardiac contribution to his symptoms. He never had episodes of congestive heart failure. While the August 2021 VA examiner indicated discussing the Veteran's claim with a cardiologist and an addendum opinion was provided by a cardiologist, the May 2021 remand directive indicated the VA examination should be conducted by a cardiologist. Neither the August 2021 opinion nor December 2021 addendum complied with the May 2021 Board remand directive. Therefore, on remand, the Veteran should be afforded a new VA examination with a cardiologist to assess the severity of his coronary artery disease. 2. Entitlement to an initial compensable rating for residual scars status post CABG surgery is remanded. The Veteran contends he is entitled to a compensable rating for his residual scars status post CABG surgery. A September 2020 rating decision granted service connection for residual scars status post CABG surgery at a noncompensable rate effective October 9, 2014, under Diagnostic Code (DC) 7802. In an August 2020 VA examination, the Veteran was diagnosed with scars status post CABG. He had a vertical sternal scar and two horizontal scars inferior to the sternal scar. The sternal scar measured 23 centimeters by 1 centimeter for a total area of 23 squared centimeters. The left inferior horizontal scar measured 2.5 centimeters by .5 centimeters for a total area of 1.25 squared centimeters and the right inferior horizontal scar measured 3 centimeters by .5 centimeters for a total area of 1.5 squared centimeters. The approximate total area was 25.75 centimeters squared. In November 2020, the Board remanded the issue of entitlement to an initial compensable evaluation for residual scars because it was inextricably intertwined with the issue of an increased rating for coronary artery disease. The coronary artery disease claim was being remanded for a VA examination and might contain relevant findings related to the Veteran's scar. In a February 2021 VA examination, the examiner observed scars related to diagnosed coronary artery disease status post CABG in September 2014. His scars were not painful or unstable. The scars did not have a total area equal to or greater than 39 square centimeters. The sternal scar measured 22 centimeters by 1 centimeter for a total area of 22 squared centimeters. The upper abdomen, midline, horizontal scar measured 2.5 centimeters by .4 centimeters for a total area of 1 squared centimeter. The upper abdomen, left of midline, horizontal scar measured 2 centimeters by .3 centimeters for a total area of .6 squared centimeters. In an August 2021 VA examination, the Veteran was observed with a scar related to diagnosed coronary artery disease status post CABG in September 2014. His scar was not painful or unstable. The scar did not have a total area equal to or greater than 39 square centimeters. The sternal scar measured 22 centimeters by 1 centimeter for a total area of 22 squared centimeters. As discussed in detail above, the Veteran's coronary artery disease claim is being remanded for a new VA examination. Since the issue of entitlement to an increased rating for his coronary artery disease may contain relevant findings to the Veteran's claim for a compensable rating for his scars, the issues are found to be intertwined. Additionally, the Board notes that the August 2020 and February 2021 VA examinations noted three scars following his CABG surgery, however, the August 2021 VA examination only indicated one scar. Clarification is needed as to whether two the Veteran's scars have healed completely. The matters are REMANDED for the following action: 1. Obtain and associate any outstanding VA and non-VA treatment records with the claims file. 2. Thereafter, schedule the Veteran for a VA examination with a cardiologist regarding the current severity of his coronary artery disease status post CABG surgery. The examiner must review the record and should note that review in the report. All testing deemed necessary should be performed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. If testing cannot be completed due to symptoms unrelated to the Veteran's cardiac condition, the examiner should report the cause of those symptoms. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected heart disability alone and discuss the effect of the Veteran's heart disability on any occupational functioning and activities of daily living. The examiner should provide a METs score. If METs testing is medically contraindicated, the examiner should so state, and should provide a METs estimate. 3. Schedule the Veteran for a VA examination with an appropriate clinician regarding the current severity of his residual scars status post CABG surgery. The examiner should identify and describe the Veteran's service-connected surgical scars. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.