Citation Nr: 22017130 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 13-34 986 DATE: March 24, 2022 ORDER Entitlement to service connection for costochondritis (claimed as heart disability and chest pain) is granted. Entitlement to service connection for bilateral tinea unguium (claimed as bilateral big toes) is granted. REMANDED Entitlement to service connection for disability manifested by dizziness (including peripheral vestibular disorder), to include as secondary to service-connected disability, is remanded. Entitlement to a higher initial rating for bilateral plantar fasciitis, calcaneal spurs, and degenerative arthritis, rated noncompensable prior to July 17, 2017, and 50 percent disabling since that date, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran's costochondritis began during active service. 2. The evidence is at least evenly balanced as to whether the Veteran's bilateral tinea unguium began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for costochondritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral tinea unguium are 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 February 1979 to November 1985 and from January 1991 to March 1991. He had additional service with the Army National Guard. His awards include the Army Commendation Medal. These matters initially came before the Board of Veterans' Appeals (Board) from March 2011, November 2017, December 2017, and September 2018 rating decisions. The Veteran requested a Board hearing before a Veterans Law Judge (VLJ) on his November 2013 substantive appeal (VA Form 9). He withdrew his hearing request in February 2018 (see a February 2018 statement from the Veteran). In July 2015 and September 2017, the Board remanded the issue of entitlement to service connection for heart disability for further development. In April 2019, the Board remanded the issue of entitlement to service connection for heart disability for further development. The Board also remanded the issues of entitlement to service connection for peripheral vestibular disorder, entitlement to service connection for disability of the bilateral big toes, and entitlement to a higher initial rating for the service-connected bilateral foot disability for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). In March 2020, the Board remanded the issues of entitlement to service connection for peripheral vestibular disorder and heart disability for further development. As for characterization of the issues on appeal, in light of the Veteran's reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claim of service connection for peripheral vestibular disorder as a claim of service connection for disability manifested by dizziness, to include peripheral vestibular disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Lastly, the evidence reflects that the Veteran has been unemployed during part of the claim period and that he has contended that his service-connected disabilities have contributed to his inability to secure and follow substantially gainful employment. Entitlement to TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given the evidence of current disabilities, the Veteran's claim for the highest rating possible for his service-connected bilateral plantar fasciitis, calcaneal spurs, and degenerative arthritis, and the evidence of unemployability, the issue of entitlement to TDIU is properly before the Board as part and parcel of the Veteran's appeal for a higher initial rating for bilateral plantar fasciitis, calcaneal spurs, and degenerative arthritis. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for costochondritis (claimed as heart disability and chest pain) The Veteran contends that he has current disability manifested by chest pain (claimed as heart disability and chest pain) which had its onset in service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of costochondritis, and that this disability began during active service. A February 2020 VA muscle injuries examination report shows that the Veteran reported that he had been experiencing mild chest pain on most days since 1981. There was mild chest pain with palpation of the sternum and with more than moderate exertion. The Veteran was diagnosed as having costochondritis. Therefore, current disability manifested by chest pain has been demonstrated. He has not been diagnosed as having any current cardiac disability. Moreover, there is evidence of chest pain in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran's service treatment records indicate that he was treated for chest pain in February and April 1982 and December 1984. There was moderate pain upon palpation to the 7th rib below the nipple and the pain occasionally increased with deep inhalation. The Veteran was diagnosed as having musculoskeletal pain/costochondritis. Moreover, the Veteran's post-service medical records and lay statements indicate that he has experienced continuous episodes of chest pain in the years since service. The Veteran is competent to report continuous episodes of chest pain in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board acknowledges that the Veteran has provided some information which is inconsistent with a continuity of chest pain symptomatology in the years since service. Specifically, he reported on report of medical history forms dated in September 1990, March 1991, and October 2000 that he was neither experiencing, nor had he ever experienced, any pain or pressure in chest. Nevertheless, the September 1990, March 1991, and October 2000 reports of medical history forms are themselves inaccurate because although the Veteran reported on the forms that he did not have a history of any pain or pressure in his chest, his service treatment records document treatment for episodes of chest pain, as described above. Also, there is no other evidence to explicitly contradict the Veteran's reports and they are otherwise generally consistent with the evidence of record. Thus, the Board finds that the Veteran's reports of continuous chest pain symptoms in the years since service are credible. The physician who conducted January 2011 VA examinations opined that the Veteran's reported chest pains were likely ("as least as likely as not"/"50/50 probability") caused by or a result of service. The examiner reasoned that the Veteran had several complaints of non-cardiac chest pains during and subsequent to service. He had stress tests and other cardiac tests, but all tests were normal. While there was no evidence that the Veteran had any ischemic heart disease, he did experience muscular chest wall pains while in service and subsequently, and it appeared that the current condition was related to his multiple complains of chest wall pains while in service. The physician assistant who conducted the February 2020 VA muscle injuries examination opined that the Veteran's costochondritis was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The examiner reasoned that the Veteran had chest pain, which was diagnosed as musculoskeletal costochondritis, and was not cardiac or angina pain. There was insufficient medical evidence of a chronic, continuing chest pain condition that started in service, or exposures in service that caused the costochondritis. The Veteran's service treatment records indicate that he had some acute self-limiting chest pain episodes in 1982 and 1984, for which no etiology was found. Follow up medical examinations in June 1986, September 1990, March 1991, and October 2000 were negative for chest pain complaints. The first time chest pain was noted again in the Veteran's treatment records was in April 2009. The February 2020 opinion is of little, if any, probative value because it is at least partially based upon an inaccurate history. Specifically, the examiner reasoned that there was no evidence of any treatment for chest pain following service until April 2009. However, the Veteran's treatment records reveal that he was treated for chest pain following service at least as early as 2000 (see a March 2002 examination report from Advocate South Suburban Hospital, which indicates that the Veteran was experiencing chest pain and had been evaluated for chest pain 2 years prior to the March 2002 examination). Therefore, the February 2020 opinion is based on an inaccurate history and is of little probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Moreover, the February 2020 opinion is based on the absence of clinical evidence of treatment for continuous chest pain in the years since service, and it does not take into account the Veteran's competent and credible reports of continuous chest pain symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The January 2011 opinion, by contrast, is based upon an examination of the Veteran, a review of his treatment records, and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, the January 2011 opinion is adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In sum, the evidence reflects that the Veteran experienced chest pain in service and that there have been continuous symptoms in the years since service. Also, there is a probative medical opinion which essentially indicates that his current disability manifested by chest pain (diagnosed as costochondritis) had its onset in service. There is no adequate medical opinion specifically contrary to a conclusion that the current costochondritis had its onset in service. Thus, entitlement to service connection for costochondritis (claimed as heart disability and chest pain) is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral tinea unguium (claimed as bilateral big toes) The Veteran contends that he has current bilateral foot disability manifested by toenail fungus which had its onset in service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of bilateral tinea unguium, and that the evidence is at least evenly balanced as to whether this disability began during active service. An August 2020 VA skin diseases examination report indicates that the Veteran has been diagnosed as having bilateral tinea unguium. Therefore, current disability has been demonstrated. Moreover, there is evidence of toenail symptoms in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran has reported that he was treated in service for dead toenails due to fungus growing under them. His service treatment records confirm that in July 1985 he was treated for a left great toenail which was partially dead. Moreover, the Veteran's post-service medical records and lay statements essentially indicate that he has experienced continuous toenail fungal symptoms in the years since service (see a January 2019 "Notice of Disagreement" form (VA Form 21-0958)). The Veteran is competent to report toenail fungal symptoms in service and continuous symptoms in the years since service. See Jandreau, 492 F.3d at 1377; see also Buchanan, 451 F.3d at 1337. Also, there is no evidence to explicitly contradict his reports, they are generally consistent with the evidence of record, and his service treatment records confirm treatment for a toenail problem in service. Thus, the Board finds that the Veteran's reports of toenail fungal problems in service and continuous symptoms in the years since service are credible. The physician assistant who conducted the August 2020 VA skin diseases examination provided opinions that the Veteran's bilateral tinea unguium was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service, to include the dead toenail in service. The examiner reasoned that toenail fungus is caused by an infection with dermatophytes, or fungus, and would have no causal relationship with a dead toenail 35 years prior. The August 2020 opinions are of limited probative value because they are essentially wholly based on the absence of clinical evidence of treatment for toenail fungus in service and for many years following service, and the examiner did not adequately consider and discuss the Veteran's competent and credible reports of toenail fungus in service and continuous symptoms in the years since service. See Dalton, 21 Vet. App. at 23. In sum, the evidence reflects that the Veteran experienced bilateral toenail fungus in service and that there have been continuous symptoms in the years since service. He has also been diagnosed as having current bilateral tinea unguium. There is no adequate medical opinion that is contrary to a conclusion that the current bilateral tinea unguium had its onset in service. Thus, the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral tinea unguium is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). REASONS FOR REMAND 1. Entitlement to service connection for disability manifested by dizziness (including peripheral vestibular disorder), to include as secondary to service-connected disability, is remanded. The Veteran contends that he experiences current disability manifested by dizziness (including peripheral vestibular disorder) which is caused by chemical exposures in service. In the alternative, he contends that the disability is associated with his service-connected disabilities (including hearing loss and/or tinnitus), and there is evidence to suggest that his dizziness may be associated with medications taken for his disabilities. A VA ear conditions examination was conducted in October 2020 to assess the nature of the Veteran's claimed disability manifested by dizziness. The examiner who conducted the examination concluded that the Veteran did not have any peripheral vestibular disability, and provided opinions that the Veteran's claimed disability was not likely incurred in or caused by service or proximately due to or the result of service-connected hearing loss or tinnitus. The October 2020 opinions are inadequate because they are entirely based on a finding that the Veteran did not have any current peripheral vestibular disorder. However, the Veteran's treatment records reflect that he has been diagnosed as having both chronic recurrent vertigo and chronic dizziness (see a May 2018 VA emergency department history and physical note). Therefore, a remand is necessary to obtain an adequate medical opinion as to whether the Veteran's claimed disability manifested by dizziness is related to service or is caused or aggravated by service-connected disability. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA West Palm Beach Health Care System and are dated to November 2021. Any VA treatment records are within VA's constructive possession and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to a higher initial rating for bilateral plantar fasciitis, calcaneal spurs, and degenerative arthritis, rated noncompensable prior to July 17, 2017, and 50 percent disabling since that date, is remanded. The Veteran contends that a higher initial rating is warranted for his service-connected bilateral plantar fasciitis, calcaneal spurs, and degenerative arthritis, to particularly include during the period from the May 18, 2010, effective date of service connection through July 16, 2017, when a noncompensable (0 percent) rating is currently assigned. The only VA foot examination in the claims file during this period is dated in January 2011, and the Veteran contends that this examination report does not accurately reflect the extent of the foot symptoms that he was experiencing. Moreover, the Board notes that this examination report does not contain all of the findings necessary to properly rate the Veteran foot disability under the appropriate rating criteria (38 C.F.R. § 4.71a, Diagnostic Code 5276). In light of the above, the Board finds that a retrospective medical opinion addressing the symptoms and severity of the Veteran's service-connected bilateral plantar fasciitis, calcaneal spurs, and degenerative arthritis, during the period from May 18, 2010, through July 16, 2017, would aid in the resolution of the appeal for a higher initial rating. Specifically, other than the January 2011 examination report, there is currently little evidence that can be used to adequately assess the severity of the Veteran's disability under the appropriate rating criteria during this period. Hence, a remand is necessary to obtain an appropriate medical opinion. See Chotta v. Peake, 22 Vet. App. 80 (2008). Moreover, prior to obtaining a retrospective medical opinion, the agency of original jurisdiction (AOJ) should solicit from the Veteran any additional lay and medical evidence that may be relevant to his appeal for a higher initial rating for the service-connected bilateral foot disability during the period prior to July 17, 2017. Also, all outstanding VA treatment records should be secured upon remand. 3. Entitlement to TDIU due to service-connected disabilities is remanded. Since a decision on the remanded service connection and higher rating issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. The issue of entitlement to TDIU should be adjudicated in the first instance by the AOJ, to include appropriate notification. The Veteran should also be given an opportunity to submit a formal application for TDIU (VA Form 21-8940). Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Send the Veteran a letter that provides him with notice as to the information and evidence that is required to substantiate his claim for TDIU and ask the Veteran to complete a formal application for TDIU (VA Form 21-8940) and to report his education and employment history and earnings, especially for the period since May 2010. A copy of this letter must be included in the claims file. 2. Ask the Veteran to submit any lay statements that address the symptoms and severity of his service-connected bilateral plantar fasciitis, calcaneal spurs, and degenerative arthritis during the period from May 18, 2010 through July 16, 2017. Also, ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for dizziness and foot disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for dizziness and foot disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran's outstanding VA treatment records from the VA West Palm Beach Health Care System for the period since November 2021; and all such relevant records from any other sufficiently identified VA facility. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an opinion from an appropriate clinician regarding whether there is an approximately 50 percent chance that any disability manifested by dizziness experienced by the Veteran since approximately November 2017 (including, but not limited to, chronic recurrent vertigo) (1) began during any period of active service; (2) manifested within one year after separation from any period of active service (in the case of any currently diagnosed organic disease of the nervous system; (3) is otherwise related to an in-service injury or disease, including his reported chemical and noise exposures; (4) is caused by any service-connected disability(ies) (to include any medications taken for these disabilities); OR (5) is aggravated by any service-connected disability(ies) (to include any medications taken for these disabilities). The clinician must provide reasons for each opinion given. In this regard, the clinician must acknowledge and discuss the diagnoses of vertigo that are documented in the Veteran's treatment records. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional lay or medical evidence, obtain a medical opinion from an appropriate clinician regarding the symptoms, manifestations, severity, and functional impacts of the Veteran's service-connected bilateral plantar fasciitis, calcaneal spurs, and degenerative arthritis during the period from May 18, 2010, through July 16, 2017. Based on any examination findings and the Veteran's documented medical history and lay assertions, the clinician should identify any symptoms, manifestations, and functional impairments due to the Veteran's service-connected bilateral plantar fasciitis, calcaneal spurs, and degenerative arthritis (to include the presence of any symptoms and impairments identified in 38 C.F.R. § 4.71a, Diagnostic Code 5276) during the period from May 18, 2010, through July 16, 2017 and, if possible, indicate (a) whether at any point(s) during this period the disability increased in severity; (b) the approximate date(s) of any such change(s); and (c) the severity of and the symptoms associated with the disability on each date. The clinician must provide reasons for each opinion given. In this regard, the clinician should acknowledge the Veteran's assertions that the January 2011 VA examination report does not accurately reflect the symptoms and impairments associated with his service-connected bilateral foot disability at that time. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.