Citation Nr: 22018574 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-15 497 DATE: March 29, 2022 ORDER Entitlement to service connection for a left foot disability, including hammertoes and pes cavus, is denied. Entitlement to service connection for a right foot disability, including hammertoes and pes cavus, is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a respiratory disability, including as due to a medically unexplained chronic multi-symptom illness (MUCMI) is remanded. Entitlement to service connection for a headache disability, including as due to a MUCMI is remanded. FINDINGS OF FACT 1. The competent evidence does not attribute the Veteran's left foot hammertoe and pes cavus to active service. 2. The competent evidence does not attribute the Veteran's right foot hammertoe and pes cavus to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability, including hammertoes and pes cavus are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right foot disability, including hammertoes and pes cavus are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1984 to April 1988 and from September 1989 to August 1993. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in May 2013 of a Department of Veterans Affairs (VA) Regional Office (RO). A January 2019 Board decision was vacated by the United States Court of Appeals for Veterans Claims (CAVC) in August 2020. In June 2021, the case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The Board finds that, with respect to the claims for service connection for bilateral feet disabilities, the AOJ substantially complied with remand directives and the case is ready for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, the remaining issues must again be remanded. Service Connection 1. Entitlement to service connection for a left foot disability, including hammertoes and pes cavus is not met. 2. Entitlement to service connection for a right foot disability, including hammertoes and pes cavus is not met. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Service connection can be established by evidence that shows "(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 or aggravated during service-the so-called "nexus" requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may only be awarded to an applicant who has a disability existing on the date of application or at any time during the appellate period, not for past disability. Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); Romanowsky v. Shinseki, 26 Vet. App. at 294. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran is seeking service connection for bilateral foot disabilities that he contends are related to injuries sustained during parachute landing falls in service. The Veteran is diagnosed with bilateral hammertoes and pes cavus. Thus, the first criterion for a grant if service connection service connection is met; The Veteran's primary military occupational specialty is listed as "infantryman" and he is in receipt of a Parachute Badge. Thus the Board finds it credible that he would have participated in the various parachute jumps during active service. There are also several instances of foot pain recorded in his service treatment records between 1990 and 1992. Thus, the Board is satisfied that the Veteran's claims meet the second criterion of service connection, namely an in-service incident, illness or injury. Therefore, the Veteran's claim hinges on the third element: whether there is a nexus between his disability and the in-service events. As explained in more detail below, the Board finds that the evidence is against a finding of a medical nexus. Therefore, the claim must be denied. Turning to the evidence, the Board initially notes that the Veteran's service treatment records (STRs) are silent for any parachute-specific injuries, although he did complain of knee, foot, toe, back and neck pain at various times during active service. The Veteran had normal feet in December 1983 and in February 1988. At an examination in August 1989, the Veteran had clinically normal feet. His arches were specifically noted to be normal, and he was not noted to have pes cavus. The Veteran had several foot and toe injuries incurred from playing sports. In March 1987, he had a left-foot injury. In March 1990, he had left great toe trauma in a football game. In May 1991, he had a right foot basketball injury involving trauma to the left great toe. In October 1991, he had a possible right fifth metatarsal fracture with negative X-ray. He had a left little toe football injury in October 1992, and a left fifth toe contusion in November 1992. In May 1993, he had a left foot contusion, noted to be a basketball injury. The Veteran was not diagnosed with hammertoes or pes cavus on active duty. Despite the injuries to his feet and toes, the Veteran continued to serve as a member of the National Guard following his active duty service. The Veteran had a VA examination in July 1994, which was within a year of discharge. He reported that he jammed his fifth toe, right foot, in 1992 while playing basketball. He was later told that the toe was fractured, but no treatment was recommended because by the time it was diagnosed many months later, it had healed. The Veteran did not report any left foot injuries or complaints at the VA examination. Examination of both feet was normal, and no deformities were noted. X-rays were also unremarkable. The clinical assessment was history of right fifth toe fracture, but there was no current right foot condition diagnosed or found. No left foot diagnosis was made at that time. The Veteran's VA outpatient treatment notes from 1994 to 2016 have been associated with the record. At no point do they reflect any specific complaints of bilateral foot pain, and there are no foot problems listed in the reports of past medical history or "active problem lists." The Veteran was afforded a VA examination in January 2013. He reported sustaining multiple injuries to both feet from paratrooping in the early 1990s. He noted that he was diagnosed with a stress fracture of the right foot in October 1991 and a probable stress fracture of the left foot over a year later. The Veteran indicated that both feet continue to cause pain. The VA examiner reviewed the claims file, including service and post-service treatment records, summarized the findings, and conducted a physical examination. X-rays showed no acute abnormalities of either foot. However, the Veteran had hammertoes of the second through fifth toes and pes cavus bilaterally. In an addendum opinion, the VA examiner concluded that the diagnosed bilateral hammertoes and pes cavus were less likely than not incurred in, or caused by, service. The rationale was that, while hammertoes are sometimes caused by trauma, the Veteran's symmetry indicated trauma was not the etiology in his specific case. After the CAVC remand, the AOJ obtained a supplemental opinion in July 2021. The examiner reviewed the Veteran's records in forming a negative nexus opinion. The VA examiner explained that none of the Veteran's in-service foot complaints were from jump-related injuries. The Veteran's hammertoes and pes cavus were not diagnosed in service, and those diagnosed disabilities are unrelated to the injuries that were noted in the STRs. Pes cavus is due to shortening of the plantar fascia, which is the opposite of what would happen in jump-related trauma, since one would expect pes planus to develop, not pes cavus. The VA examiner explained that the Veteran's hammertoes are secondary to his pes cavus. The pathophysiology of pes cavus and hammertoes do not support the Veteran's contentions of a nexus to paratrooping. Additionally, the Veteran did not have any diagnosed traumatic residuals of a jump-related injury, such as degenerative joint disease. The examiner explained that while the Veteran reported the onset of foot pain in service with continuity since, his separation examination was negative, and the earliest documented onset of foot problems was 20 years after service. After reviewing the evidence, the Board concludes that the Veteran's claim must be denied. The most probative competent medical evidence does not establish a nexus between the Veteran's parachute landing falls and his foot disabilities, including bilateral pes cavus or hammertoes. Additionally, the record does not reflect that a foot disability was incurred on active duty or a chronic disease manifested within a year of separation. Initially, the Board notes that the Veteran's STRs do not diagnose hammertoes or pes cavus. Furthermore, the July 1994 VA examination did not diagnose any foot disability (indeed, with the exception of post-contusion residuals to the right 5th toe, the Veteran did not report any foot issues at that time). Therefore, the most probative evidence shows that a bilateral foot disability was not incurred in service or manifested within a year of separation. Additionally, to the extent the Veteran now asserts ongoing symptoms of foot pain since service, those assertions were made many years after separation, the Veteran has a great deal of self-interest in the outcome of the appeal, and the medical record is void of any such complaints or pathologies between separation and 20 years later. Thus the Board does not find them credible to establish a continuity of symptoms from the time of service. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes that there is no positive medical opinion of record in the Veteran's favor that links his foot disabilities to service. The only evidence pertaining to a nexus in the claims file are two negative opinions that weigh against the Veteran's claim. A medical opinion is considered probative if it is definitive and supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). The July 2021 opinion is based on a review of the Veteran's records; considered specific medical history, including the Veteran's in-service history, the course of his foot problems and symptoms, and the results of the April 2013 clinical evaluation; it directly addresses his contentions and belief that his current foot problems are a continuation of the injuries and treatment shown in-service; and it provides a detailed rationale regarding why there is less likely than not a nexus to service. The Board finds that the opinion provides a helpful and complete discussion of the medical evidence. Therefore, it is adequate and highly probative evidence against the Veteran's claim. The Board further observes that the July 2021 VA opinion did not directly address the January 2013 examiner's statement that, in general, hammertoes could be caused by trauma. However, the July 2021 VA examiner explained that, in this case, the Veteran's hammertoes are secondary to his pes cavus, which is a shortening of the plantar fascia. Therefore, the Board finds that the July 2021 VA opinion adequately explains that the Veteran's hammertoes are not related to parachute landing falls. The report states, "the veteran is currently diagnosed with bilateral pes cavus and hammertoes. These conditions are completely unrelated to the types of injuries occurring in service." The examiner further noted there were no traumatic residuals diagnosed, and the pathophysiology of hammertoes do not support the Veteran's theory or contentions. Indeed, the examiner ultimately concluded that none of the diagnosed disabilities is at least as likely as not caused by the claimed in-service event or injury. The Board recognizes that the CAVC vacated the January 2019 Board decision that found the January 2013 VA examination highly probative. In this present decision, the Board affords that 2013 opinion some, but less significant weight, in its conclusion. The April 2013 VA examiner concluded that the Veteran's hammertoes were not caused by service, but acknowledged that trauma was a potential cause of hammertoes. Considering that the Veteran had repeated trauma to his feet as a paratrooper unrelated to his documented sports injuries, without more of an explanation as to why that trauma did not cause hammertoes, the opinion is not afforded significant weight. Nevertheless, the opinion is based on a physical examination of the Veteran, and considered his reported history and symptoms. Therefore, the opinion is not entirely discounted. While the Veteran believes that his foot disabilities are related to service, the Board concludes that the Veteran is not competent to make this determination. The issue is medically complex, as it requires the interpretation of symptoms and application of medical principles by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence that the Veteran has any medical training. See 38 C.F.R. §§ 4.125, 4.130. Therefore, the Board affords more weight to the probative July 2021 VA opinion than it does to the Veteran's beliefs. Moreover, the Board acknowledges the Veteran's October 2021 statement that he was not seeking service connection for hammertoes, but rather other foot pain he experienced. The Board notes that the Veteran sought service connection for a "bilateral foot" disability, and it has expanded the Veteran's claim to include any diagnosed foot disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that a claim is not limited to a single or particular diagnosis, nor is it limited by the terminology used by a lay veteran, but rather a claim encompasses any disability that is reasonably raised by the record based on the description of the claim, the described symptoms, and any other relevant evidence). Since the Veteran has multiple diagnosed disabilities of the feet, the Board is obligated to consider all possible theories of service-connection. Additionally, the Board notes that it was the 2013 examiner's opinion on the hammertoe disability that resulted in the Board's 2019 decision being reversed and remanded by CAVC, thus the Board must consider that disability to be a key portion of his claim. To the extent that the Veteran seeks service connection of generic foot pain, he has been afforded two examinations by qualified medical specialists who have attributed his symptoms of pain to pes cavus and its related hammertoe. There is no evidence of any additional disability or pain which is unattributed to any specific foot pathology and which causes functional impairment. In sum, after reviewing the evidence, there is insufficient evidence showing that the Veteran's bilateral foot disabilities, which were diagnosed post-service, are attributable to his military service, including parachute landing falls or his various other complaints of foot or toe pain in service. Although the Veteran was treated for various foot injuries on active duty, the objective evidence of record indicates that any residual symptoms were neither chronic nor continuous since then. As such, the claim is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a left shoulder disability is remanded. Throughout the pendency of this appeal, the Veteran has advanced three theories for service connection of his bilateral shoulder disabilities: 1) that his shoulder disabilities are the result of parachute landing falls; 2) that his shoulder disabilities are the result of slipping and pulling risers on parachutes; and 3) that his shoulder disabilities had their onset in service and have persisted since. The Board notes that additional development is needed before the claim can be decided. Regarding the first theory of service connection, the Board remanded the claim in January 2019 in order to obtain a VA medical opinion that addressed the April 2013 private opinion from Dr. C. Dr. C. noted that "it is possible that repeated landing" while parachuting "may have contributed" to the Veteran's shoulder disabilities. The resulting December 2019 VA examination report did not directly address Dr. C.'s opinion, among other evidence in the claims file. The Board again remanded the claim for an adequate opinion in June 2020. A March 2021 VA examiner noted that repeated stress could increase the risk of developing arthritis, but then a July 2021 VA examiner provided a negative nexus, and explained, in part that the Veteran's degenerative joint disease is congruent with his age. However, the July 2021 VA examination report did not address Dr. C.'s opinion or the discussion of whether repeated stress contributed to his disability, as required by the Board's prior remand. Since no VA examiner has directly addressed this evidence, additional development is needed to ensure compliance with the Board's prior remand orders. Regarding the second theory of service connection, the Board notes that no VA examiner has addressed the Veteran's contentions. The Veteran reviewed the December 2019 VA examiner's report and cited the explanation that certain shoulder injuries are common in overhead activities, and the most common mechanism involved pulling a heavy object. The Veteran thereafter argued that pulling the risers of a parachute ("slipping") qualified as an overhead activity and a pull that would predispose him to a shoulder injury. Additionally, the December 2019 VA examiner explained that predispositions may stem from multidirectional instability, and the Veteran further argued that pulling and directing a parachute in order to land qualified as multidirectional instability that predisposed him to injury. As no VA examiner has addressed this contention, a remand is required. Finally, regarding the third theory of service connection, no VA examiner has adequately addressed the Veteran's reports of onset of symptomatology. The July 2021 VA opinion explained that any disability due to a hard parachute landing would have been evident in service, since the most common parachuting shoulder injuries are shoulder dislocations and clavicle fractures, which require immediate care. However, the Veteran has argued that he was not contending he had a dislocated shoulder or a fracture, but rather that he had symptoms of a less serious disability before it progressed to a tear and degeneration. See April 2020 statement. The Veteran explained that he read on a website (WebMD) that in most cases, a labrum tear does not hurt all the time, and pain occurs with overhead use only. Additionally, he read on another site (JohnsHopkinsMedicine.org) that a frayed labrum can occur and persist prior to a tear, and is usually asymptomatic. The Veteran contends, essentially, that he had a less serious injury (not a dislocation or fracture or complete tear), such as a fray, in service, which was either asymptomatic or only caused intermittent pain that was manageable with over-the-counter medication, until it progressed to a tear in 2008 to the point of requiring surgery. Alternatively, he contends that parachuting (both slipping and landing) made him more susceptible to the later-diagnosed tear and degeneration. He reported that he was able to function by restricting use of his arm, and working in jobs not requiring overhead reaching, since his jobs involved supervision of others and administrative tasks, and were not strenuous. On remand, a VA examiner must address the Veteran's contentions and reports of symptoms. 3. Entitlement to service connection for a respiratory disability, including as due to a medically unexplained chronic multisymptom illness is remanded. 4. Entitlement to service connection for a headache disorder, including as due to a medically unexplained chronic multisymptom illness is remanded. The Board is obligated to ensure substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The June 2021 remand required the AOJ to obtain a medical opinion addressing the Veteran's contention that both his respiratory disability and migraine headaches are signs and symptoms of a medically unexplained chronic multi-symptom illness (MUCMI) associated with his Gulf War service under 38 C.F.R. § 3.317. The resulting respective July 2021 VA examinations of the Veteran's lungs and headaches did not directly address this contention as directed. The examiner indicated that there was no nexus for the headaches based on lack of documentation and there was a lack of diagnosis for the respiratory disability. Therefore, another remand is required for an adequate opinion. Additionally, the Board notes that the opinion regarding the Veteran's headaches is inadequate because it relies on lack of documentation. An adequate opinion must account for the Veteran's competent reports of symptoms, address his contentions, and not provide conclusory statements without a detailed medical-based rationale. In this case, there are no medical principles or explanations that allow the Board to understand how the examiner came to his conclusions. Merely listing facts before stating a conclusion does not constitute an adequate opinion. See Abernathy v. Principi, 3 Vet. App. 461, 465 (1992). See, also, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (an adequate medical examination report "must contain not only clear conclusions with supporting data, but also a reasoned medical explanation," and supporting analysis with sufficient detail that the Board can consider and weigh.). As indicated above, a remand of this claim is therefore required. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from a qualified VA examiner regarding the etiology of the Veteran's bilateral shoulder disability. If the examiner determines that he or she cannot respond to the Board's inquiries herein without examining the Veteran, then an examination must be afforded. If an in-person examination is not feasible, then the Veteran should be afforded an examination by other means. All necessary tests should be conducted. The entire claims file and a copy of this remand should be made available to the examiner for review. The examiner is asked to address the following: The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has a shoulder disability that is the result of, caused by, or related to, paratrooping, including slipping or landing. In doing so, the examiner should directly address the Veteran's lay statements and report of symptomatology and contentions, and the evidence of record, as follows: (1) the contention that his shoulder disabilities are the result of, related to, or caused by parachute landing falls; (2) the April 2013 opinion by Dr. C. that "it is possible that repeated landing" while parachuting "may have contributed" to the Veteran's shoulder disabilities that parachute landings made the Veteran more susceptible to later-diagnosed tears and degeneration; (3) the March 2021VA opinion that repeated stress could increase the risk of developing arthritis; (4) the Veteran's contention that his shoulder disabilities are the result of, related to, or caused by pulling risers and slipping to land the parachutes; (5) the December 2019 VA examiner's explanation that certain shoulder injuries are common in overhead activities, and the most common mechanism involved pulling a heavy object, and that predispositions may stem from multidirectional instability; (6) the Veteran's argument that pulling and directing a parachute in order to land qualified as an overhead activity and/or multidirectional instability that predisposed him to injury; (7) the Veteran's contention that he did not have a dislocated shoulder or a fracture, but rather that he had symptoms of a less serious disability before it progressed to a tear and degeneration; (8) the Veteran's argument that in most cases, a labrum tear does not hurt all the time, and pain occurs with overhead use only, and that a frayed labrum can occur and persist prior to a tear, and is usually asymptomatic; (9) the Veteran's contention that, essentially, he had a less serious injury such as a fray, in service, which was either asymptomatic or only caused intermittent pain that was undiagnosed and was manageable with over-the-counter medication, until it progressed to a tear in 2008 to the point of requiring surgery; (10) the contention that the Veteran's shoulder pain had its onset in service and he was able to function by restricting use of his arm, taking over-the-counter pain killers and anti-inflammatories, and working in jobs not requiring overhead reaching; and (11) that the acts of landing and pulling parachutes, either alone, or in combination, made him more susceptible to the later-diagnosed tear and degeneration. 2. Obtain a supplemental opinion from an appropriate VA clinician to determine the etiology of the Veteran's respiratory disability and headaches, and any associated symptoms. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination (or by other means if an in-person examination is not feasible). All clinical findings must be reported in detail and correlated to a specific diagnosis. A copy of all remands and the CAVC's orders must be made available to the examiner. Following a review of the entire record, including the Veteran's reports regarding the onset and progression of his current symptomatology, the examiner should address the following: The examiner is asked to clarify whether the Veteran's reported symptoms, including shortness of breath, fatigue, lightheadedness, dizziness, and headaches, are attributable to a specific diagnosis, including the Veteran's service-connected unspecified trauma disorder. If the Veteran does not have a current diagnosis associated with any of his reported symptoms, the examiner must opine whether any of the Veteran's signs and symptoms is a manifestation of an undiagnosed illness associated with his Gulf War service under 38 C.F.R. § 3.317. The examiner should clarify whether the Veteran's migraine headaches or any diagnosed respiratory disability have a known or partially understood etiology or pathophysiology. If the Veteran's migraine headaches have a known or partially understood etiology or pathophysiology, the examiner must opine as to whether it is at least as likely as not that the Veteran's headaches are related to an in-service injury, event, or disease, including known Gulf War exposures. The examiner is further requested to opine as to whether it is at least as likely as not that the Veteran's respiratory disability is related to an in-service injury, event, or disease, including Gulf War exposures. The examiner should opine as to whether it is at least as likely as not that the Veteran's respiratory disability was incurred in service, including the Veteran's reports of breathing difficulties in service, and the annotations of trouble breathing in August 1992 and April 1993 in the STRs. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's headaches are proximately due to, the result of, caused by, or aggravated beyond their natural progress by the Veteran's service-connected unspecified trauma disorder. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's respiratory disability is proximately due to, the result of, caused by, or aggravated beyond their natural progress by the Veteran's service-connected unspecified trauma disorder. If a favorable opinion is provided regarding a respiratory disability, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's headaches are proximately due to, the result of, caused by, or aggravated beyond their natural progress by the Veteran's service-connected respiratory disability. A complete rationale for any opinion expressed must be provided. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.