Citation Nr: 22017204 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-03 660 DATE: March 24, 2022 ORDER Entitlement to service connection for bilateral pes planus is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. The Veteran was noted as having bilateral pes planus on his enlistment examination. 2. The Veteran's preexisting bilateral pes planus did not increase in severity beyond its natural progression during his active service. CONCLUSION OF LAW Bilateral pes planus was not aggravated by active service. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from April 1976 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2014 and October 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2019. A transcript of that hearing has been associated with the claims file. The Board remanded the case for further development in February 2021. That development has been completed, and the case has since been returned to the Board for appellate review. The Board notes that the Veteran's appeal had also originally included the issues of entitlement to service connection for hearing loss and tinnitus. However, during the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted service connection for those disabilities in a May 2021 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, the matters are no longer in appellate status and are no longer before the Board. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Every veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that an injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. The law provides that an increase in disability must consist of worsening of the enduring disability. Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis, 276 F.3d at 1345 (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes the Veteran is not entitled to service connection for bilateral pes planus. The Veteran's service treatment records include an April 1976 enlistment examination, which noted pes planus. Therefore, the Board finds that the presumption of soundness does not apply in this case, as bilateral pes planus was specifically noted on the entrance examination. Thus, the remaining question is whether the Veteran's preexisting bilateral pes planus was aggravated by his military service. The Veteran's service treatment records do not document any treatment for pes planus or any difficulties with his feet during service. Following service, VA medical records show that the Veteran was seen for physical therapy for foot pain in February 2015. During those appointments, the Veteran reported longstanding foot pain in the bilateral arches since his military service. The Veteran stated that running in combat boots caused severe pain in his feet, which had never resolved. He was diagnosed with plantar fasciitis at that time, and treatment was provided. An April 2017 VA treatment record later documented gradually worsening foot pain was again noted during an April 2017 VA appointment. The Veteran was afforded a VA examination in connection with the claim in April 2021. The examiner confirmed the pes planus diagnosis and acknowledged the Veteran's statements that his feet had bothered him during active duty. However, the examiner opined that the Veteran's pes planus was not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of that opinion, the examiner found that the Veteran's service treatment records were silent for any treatment for pes planus during service, which would have shown an aggravation of the disorder. The Board affords substantial probative weight to the April 2021 VA medical opinion because it is based on a review of the claims file, an accurate characterization of the evidence of record, and is supported by rationale. There is no medical opinion otherwise indicating that the Veteran's preexisting bilateral pes planus was aggravated by service. The Board also finds it significant that there is no indication that the Veteran was seen for any foot disorder during or shortly after service or for several decades thereafter. Evidence of a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a preexisting condition was aggravated by military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that the Veteran has stated that he had pain and difficulties with his feet during service. The Veteran is competent to provide lay evidence regarding his symptoms. However, although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's preexisting foot disorder worsened beyond the natural progression of the disorder during service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming the Veteran's lay assertions are competent, the Board nevertheless finds the April 2021 VA examiner's opinion to be more probative, as it is based on a review of the record and the examiner's medical expertise. The examiner also provided rationale in support of his opinion. Thus, the Board finds that the weight of the evidence is against a finding of entitlement to service connection for a bilateral foot disorder, and the claim is denied. REASONS FOR REMAND Upon review, the Board finds that additional development is needed prior to adjudication of the remaining issues on appeal. The Board notes that the Veteran was afforded a VA examination in April 2021 in connection with his claims for service connection for a low back disorder and a cervical spine disorder. The examiner opined that the disorders were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He stated that the Veteran's service treatment records are silent for any low back disorder or physical assault, but he did not explain the significance of those facts or provide any other rationale. Moreover, a June 1976 service treatment record does document a complaint of right-sided neck pain after the Veteran hit a tree playing football. Thus, it appears that the examiner may have relied upon an inaccurate or incomplete factual premise. Therefore, the Board finds that additional VA medical opinion is needed. The Board also notes the Veteran was afforded a VA examination in April 2021 in connection with his claim for service connection for an acquired psychiatric disorder. The examiner diagnosed him with major depressive disorder with psychotic features, but he opined that the disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He noted that there is no record any mental health issues, diagnosis, or treatment in service and that the Veteran was not diagnosed with any mental health disorder until many years after service. The examiner also noted that there is evidence showing that the Veteran's mental health issues began in childhood and that he had also reported that there was physical abuse while he incarcerated for 17 years after service. Nevertheless, the Board notes that there were no psychiatric abnormalities noted on the Veteran's enlistment examination; therefore, the presumption of soundness applies, and clear and unmistakable evidence would be needed to rebut that presumption. Therefore, the Board finds that an additional VA medical opinion is needed. In addition, the Veteran was afforded a VA examination in April 2021 in connection with his claim for service connection for hepatitis C. The examiner opined that hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He relied on a finding that the Veteran's service treatment records were silent as to that disorder. He also stated that exact cause of the Veteran's hepatitis C is unknown, but noted that he has several likely risk factors, including a history of intravenous drug use and tattoos. However, the examiner did not specifically address the Veteran's claim that he contracted hepatitis C due to the administration of vaccinations with unclean needles during service, as directed in the prior remand. Therefore, the Board finds that an additional VA medical opinion is needed. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his low back, cervical spine, hepatitis C, and acquired psychiatric disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After the above development has been completed, the agency of original jurisdiction (AOJ) should obtain a VA medical opinion to determine the etiology of any low back disorder that may be present. A physical examination is only needed if deemed necessary by individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current low back disorder that is causally or etiologically related to his military service, to include any injury or symptomatology therein. It should be noted that the Veteran has claimed that he developed a low back disorder as a result of a physical assault in service. He has claimed that he was too fearful to report the assault during service, and as such, he has stated that he reported the incident as an injury during a football game in June 1976. If the examiner finds the fact that there are no documented back problems in service or in the years thereafter to be significant, he or she should explain the significance. He or she should also discuss the medically known or theoretical causes of any current low back disorder and describe how such a disorder generally presents or develops. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After the above development has been completed, the AOJ should obtain a VA medical opinion to determine the etiology of any cervical spine disorder that may be present. A physical examination is only needed if deemed necessary by individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current cervical spine disorder that is causally or etiologically related to his military service, to include any injury or symptomatology therein. The examiner should specifically address the June 1976 service treatment record documenting right-sided neck pain after the Veteran hit a tree while playing football. It should also be noted that the Veteran has claimed that he developed a cervical spine disorder as a result of a physical assault in service. He has claimed that he was too fearful to report the assault during service, and as such, he has he reported the incident as an injury during a football game in June 1976. If the examiner finds the fact that there is no documented continuity of symptomatology since service to be significant, he or she should explain the significance. He or she should also discuss the medically known or theoretical causes of any current disorder and describe how such a disorder generally presents or develops. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After the above development has been completed, the AOJ should obtain a VA medical opinion to determine the etiology of any acquired psychiatric disorder that may be present. An examination is only needed if deemed necessary by individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether the Veteran's current acquired psychiatric disorder clearly and unmistakably preexisted his military service. (The term "clear and unmistakable" means that the evidence is undebatable.) If so, he or she should state whether there was an increase in the severity of the preexisting disorder during this period of service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If the examiner determines that the disorder did not clearly and unmistakably preexist the Veteran's service, he or she should provide an opinion as to whether it is at least as likely as not that the Veteran's current acquired psychiatric disorder manifested in service or is otherwise is causally or etiologically related to his military service, to include any symptomatology or events therein. The Veteran has claimed that he was physically assaulted in service. The examiner should comment on whether the Veteran exhibited any behavioral changes during service that are indicative of the occurrence of an in-service personal assault. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After the above development has been completed, the AOJ should obtain a VA medical opinion to determine the etiology of the Veteran's hepatitis C. A physical examination is only needed if deemed necessary by individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current hepatitis C disorder that is causally or etiologically related to his military service. He or she should specifically address the Veteran's claim that he contracted hepatitis C due to the administration of vaccinations with unclean needles during service. The opinion should include a full discussion of all modes of transmission and a rationale as to why the examiner believes that a particular mode of transmission was the source of the Veteran's hepatitis C. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. The AOJ should ensure that there has been compliance with the preceding directives and take any corrective action if needed. The AOJ should also conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Rideout-Davidson, 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.