Citation Nr: A24067543
Decision Date: 10/21/24 Archive Date: 10/21/24

DOCKET NO. 220518-244174
DATE: October 21, 2024

REMANDED

Entitlement to service connection for a left hip disability, to include tendonitis, is remanded.

Entitlement to service connection for a skin condition on the left and right feet, to include tinea unguium, is remanded.

Entitlement to service connection for a bilateral foot disability, to include plantar fasciitis and/or pes planus is remanded.

REASONS FOR REMAND

The Veteran had active duty military service from March 1983 to July 1986.

This matter comes before the Board on appeal of a rating decision issued in November 2020 which denied service connection for the claimed disabilities. The Veteran filed a request for Higher Level Review (HLR) in November 2020 and the HLR found error in the fact that VA examinations and opinions had not been obtained. Thereafter, in May 2021, the agency of original jurisdiction (AOJ) issued another rating decision denying service connection. In the May 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

The Board notes that the issuance of the May 2021 rating decision allows a broader evidentiary window, to include all evidence of record at the time of that decision. The Veteran's subsequent VA Form 10182 or Notice of Disagreement was received in May 2022, mere days after the one year window for filing of a Notice of Disagreement. Under the Appeals Modernization Act (AMA), a claimant has one year from the date that the agency mails the notice of the decision to file a NOD. 38 C.F.R. § 20.202, 20.203 (b). The date of mailing the letter of notification of the decision will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. Id. However, the Board notes the holdings of Ferko v. McDonough, No. 21-3467, 2024 U.S. App. Vet. Claims LEXIS 800 (May 28, 2024) (en banc) (holding the one-year deadline to file a legacy NOD is not a jurisdictional bar to Board review, but a mandatory claims processing rule) and Hall v. McDonough, 34 Vet. App. 329, 332 (2022) which are applicable here. Those cases provide that the one-year filing deadline is a claims-processing rule rather than a jurisdictional bar (Ferko) and that regulatory claims-processing rules may be waived without affecting jurisdiction to adjudicate appeals (Hall). Given that the case has been duly docketed as if the appeal were timely filed, the Board finds that the one-year filing deadline -which was missed by only a few days - has been implicitly waived and will adjudicate the claims. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).

In accordance with the AMA evidentiary window provisions, the Board may only consider the evidence of record at the time of the May 2021 AOJ decision. 38 C.F.R. § 20.301. Any evidence submitted after the May 2021 AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

Entitlement to service connection for a left hip disability

The Veteran seeks service connection for a left hip disability, to include tendonitis, which he asserts is related to his duties in service as a parachutist. Service treatment records show that he was treated on two occasions for complaints involving the left hip. (See STR, 01/27/2020.) In July 1984 the Veteran fell off the bumper of a pickup truck and bruised his left hip; he was placed on light duty for 7 days. In February 1986 the Veteran was playing football and sustained an injury to his left hip and had pain that interfered with the use of his left leg. At the time the differential diagnoses were given as contusion or hip pointer or tendonitis.

A VA examination of the Veteran's left hip was conducted in April 2021. (See C&P Exam, 05/06/2021.) The examiner noted a diagnosis of greater trochanteric pain syndrome of the left hip since about 1984. The Veteran provided a history of having hurt his hip on a parachute landing and being taken to the hospital where an X-ray showed separation of the pubic synthesis. He was told he had a hip pointer and was put on profile to refrain from running or jumping for two weeks. He had not really had any treatment since separation from service, managing his condition with over-the-counter pain medication, rest, and stretching. He experienced daily pain flare-ups lasting up to fifteen minutes, usually after prolonged inactivity, particularly arising after being in a seated position for some time or getting out of bed in the morning. The VA examiner offered the opinion that the Veteran did not have a hip disability which was related to his parachute jumping or military service because his service separation examination was reported as normal and there was no evidence of treatment after service separation. Rather, the VA examiner diagnosed left hip trochanteric pain syndrome which was due to overuse and prolonged abnormal weight bearing.

The VA examination report illustrates four areas of pre-decisional error. First, it appears that there are outstanding military treatment records which are relevant, specifically hospital records at Fort Bragg (now Fort Liberty). Second, it appears that the primary basis for the negative nexus opinion was based on a lack of medical records, which is impermissible. Third, the opinion also appears to link the Veteran's left hip disability to prolonged abnormal weight bearing, which raises the question of secondary service connection related to the claim for a foot disability. Finally, the Veteran reported a diagnosis in service of a hip pointer and the service treatment records reflect this as a possibility, but the matter was not discussed in the VA opinion. For all these reasons, an additional VA examination and opinion is necessary on remand. An attempt should also be made to obtain any outstanding service treatment records.

Entitlement to service connection for a skin condition on the feet

The Veteran seeks service connection for a skin condition which affects his feet, including his toenails, and which he attributes to his duties in service which involved long periods of time marching through swamps with wet feet.

In April 2021, the Veteran was provided a VA examination to assess the condition of his feet, with a notation of a claim of tinea unguium since 1983. (See C&P Exam, 05/06/2021.) He reported having wet feet for prolonged periods during survival school which had resulted in irritation of his feet and thickening of the nails. He treated the condition with cortisone cream and an oral medication. On examination the Veteran had thickening of the nails of both feet, as well as irritation from positional abrasions on his right foot which is related to the foot disability claim rather than the skin condition claim. The VA examiner offered the opinion that the Veteran's tinea unguium was not due to service because there was no evidence in the medical record of treatment in service and his separation examination was silent for skin disease. The examiner stated that tinea unguium is due to a fungal infection and therefore would not be the result of an injury or parachute jumping.

The Board finds that the VA examination and opinion was inadequate and therefore constituted pre-decisional error. First, the lack of medical records documenting a disability is not a permissible basis for a negative nexus opinion. Second, the examiner failed to address the Veteran's specific history of prolonged periods of wet feet as part of his survival school, despite noting that tinea unguium is related to fungal infections. Instead, the examiner addressed the claim as relating to an injury from parachute jumping, which was never asserted by the Veteran. On remand, a new VA examination and opinion is necessary to address these inadequacies.

Entitlement to service connection for a bilateral foot disability

The Veteran seeks service connection for a bilateral foot disability which has been variously diagnosed as plantar fasciitis and pes planus. The Veteran has specifically noted that at the time of the service entrance examination in January 1983, he was noted to have asymptomatic pes planus described as two degrees or second degree. (See Military Personnel Records, 01/17/2020.) It is his contention that his time in service, wearing combat boots and marching for long distances, caused the condition to worsen and become the disability he experiences today.

At the April 2021 VA examination, the Veteran was diagnosed with bilateral pes planus (flat feet). (See C&P Exam, 05/06/2021.) He also had an abrasion or friction injury on one of his right toes due to his pes planus. The Veteran reported that he was told that he was flat footed on entering the service, with two percent pes planus. He did not seek any treatment during his service, although he had access to arch supports as the unit medic and used those. His symptoms included pain after prolonged weight-bearing, the need for arch support, and a "collapsing" pain on the tops of his feet when he walked. He had been treated by a podiatrist since leaving service and was advised to use arch support. He asserted that his feet may have been flat going into service, but the parachute jumps exacerbated the problem, making them both flatter and wider. The VA examiner offered the opinion that the Veteran's bilateral pes planus had clearly and unmistakably pre-existed his entrance to military service but was not aggravated beyond its natural progression by his military service.

A second VA examination in May 2021 diagnosed the Veteran's disability as one of pes planus and plantar fasciitis and hammer toes, bilateral. (See C&P Exam, 05/11/2021.) The examiner documented that the Veteran had abnormal weight-bearing and hammer toes of the second toe, but no evidence of loss of longitudinal arch on weight-bearing. The opinion from this examination specifically addressed the question of plantar fasciitis and found that it was not related to service. The basis for the negative opinion was that there was no evidence of treatment for plantar fasciitis in service or after service and no objective evidence of plantar fasciitis, only subjective complaints of pain.

The Board finds that the VA examinations and opinions were inadequate and, therefore, constituted pre-decisional error. Specifically, the Veteran concedes, and the evidence shows that the Veteran had pes planus at the time he entered service, which was recorded as either second degree, two degrees, or two percent, depending on how the record is read. He has specifically asserted that his pes planus worsened in service. The service entrance examination did list the condition as asymptomatic, so the presence of current symptoms is itself evidence of a worsening since service entrance, which may or may not be due to the time in service, to include his parachute jumps. The record does not reflect any consideration or discussion of the meaning of the assessment of the Veteran's pes planus at service entrance, written as "2°", or a comparison to the Veteran's current manifestations of pes planus. These aspects of the opinion must be addressed in a VA examination and opinion on remand.

The matters are REMANDED for the following action:

1. Obtain records of any inpatient treatment at Fort Bragg (now Fort Liberty) Hospital in the years 1983 to 1986. Document all requests for information as well as all responses in the claims file.

2. After any outstanding records have been obtained, schedule the Veteran for a VA examination for the left hip disability. The examiner must review the claims file. The examiner should provide a diagnosis, if appropriate, of any condition shown on examination, to include trochanteric pain syndrome, tendonitis, and hip point. The examiner should offer an opinion as to whether it is at least as likely as not (likelihood at least approximately balanced or equal) that the Veteran has a disability of the left hip, to include one manifested by limited or painful motion, which is the result of his military service. In addressing this question, the examiner is specifically asked to comment on the documentation of a fall in service, of a football injury, and the Veteran's report of a possible separation of the pubic synthesis. Any diagnostic testing such as X-rays which may inform the opinion should be obtained. The examiner is also asked to provide a definition of the term "hip point" and to address the relevance to the Veteran's treatment in service and current disability picture.

The examiner should also address the comment by the April 2021 VA examiner that the Veteran's left hip pain could be attributed to prolonged abnormal weight bearing. Specifically, the examiner should address whether the evidence reflects such abnormal weight bearing and the cause thereof, to include foot disabilities such as pes planus and plantar fasciitis. An opinion on an at least as likely as not (likelihood at least approximately balanced or equal) basis should be provided if appropriate.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions.

The examiner should specifically cite to any medical record or other documentary evidence which informs the opinion. The examiner is also asked to cite to any medical research or treatises which inform the opinion. Finally, the examiner should provide a statement of the medical reasoning or rationale for the opinions offered.

In providing the requested opinion, the examiner should consider the Veteran's history of multiple parachute jumps in service and his report of symptoms both in service and since service. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

If the examiner cannot render an opinion on this without resorting to speculation, the examiner should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or a lack of evidence that, if obtained, would permit the opinion to be provided.

3. After any outstanding records have been obtained, schedule the Veteran for a VA examination for the skin condition on his feet. The examiner must review the claims file. The examiner should provide a diagnosis, if appropriate, of any condition shown on examination, to include fungal infections of the feet and/or toenails or other acquired skin conditions. The examiner should offer an opinion as to whether it is at least as likely as not (likelihood at least approximately balanced or equal) that the Veteran has a skin disability of the feet, which is the result of military service.

In addressing this question, the examiner is specifically asked to comment on the Veteran's history of prolonged periods of walking through swampy areas in combat boots with wet feet. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

4. After any outstanding records have been obtained, schedule the Veteran for a VA examination for the pes bilateral foot disability. The examiner must review the claims file. The examiner should provide a diagnosis, if appropriate, of any condition shown on examination, to include pes planus and plantar fasciitis. The examiner should offer an opinion as to whether the Veteran has a disability of the feet, to include one manifested by pain and the need for arch support, which is worse than that manifested at the time of the entrance to service. The examiner should provide an opinion as to whether there is clear and unmistakable evidence that the Veteran's pes planus was NOT worsened beyond the normal course of the condition by his service.

The examiner should also specifically address the finding on service entrance of pes planus described as "2°" and provide a definition of this term, if possible, as well as a comparison to the Veteran's current severity of pes planus. Any diagnostic testing such as X-rays which may inform the opinion should be obtained.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment to include pain on use or limitation of motion, then the examiner should consider them a "disability" for the purpose of providing the requested opinions.

5. In providing the requested opinion, the examiner should consider the Veteran's history of parachute jumps in service and the possibility of an intervening event, which should be discussed with the Veteran during the examination. The examiner should then provide an opinion as to whether the described mechanisms of injury, such as marching in combat boots and parachute jumps, would have resulted in worsening of pes planus. The examiner should also address the impact of any intervening injuries or events on the Veteran's pes planus. The examiner is advised that the most important question is whether worsening in service is shown by clear and unmistakable evidence. Additional injury or worsening following service, while informative, does not negate a nexus to service.

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Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Handy, Cheryl E.

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.