Case A25072525

M. TENNER · 2025 · Case ID: A25072525

MIXED

Summary

The veteran, an Air Force veteran who served from February 2004 to August 2005, appeals the denial of service connection for a right hamstring disability, right great toe disability, low back disability, and anxiety disorder. The Board granted service connection for tinnitus, noting it was already established as related to service in a prior decision. For the right hamstring claim, the Board found no current disability, despite an in-service injury finding, as the veteran reported only intermittent tightness without pain or functional impairment, and no chronicity of care since service. The VA examiner found no current diagnosis and no evidence of chronicity. For the right great toe claim, the Board found no current disability or pain, despite an in-service injury, as service records were silent and no treatment was sought post-service. The Board denied the low back disability claim, finding no evidence of an in-service event or injury, and noting the veteran's service records were silent on the issue, weighing against any claim of an in-service condition. The anxiety disorder claim was denied due to no current diagnosis and no treatment or diagnosis in private records, with the veteran consistently reporting no anxiety symptoms. The Board applied the benefit of the doubt doctrine only where evidence was in approximate balance, but found it inapplicable to the denied claims as the evidence weighed against the veteran. The claim for a right foot disability, including pes planus, was remanded due to a duty to assist error, as the Board needed a VA opinion on whether the pre-existing pes planus was aggravated by an in-service injury.

Rationale

No current right hamstring disability found.; Veteran reported only intermittent tightness, not pain.; No evidence of chronicity of care since service.

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230221-325530

Full Decision Text

Citation Nr: A25072525
Decision Date: 08/27/25 Archive Date: 08/27/25

DOCKET NO. 230221-325530
DATE: August 27, 2025

ORDER

Entitlement to service connection for a right hamstring disability is denied.

Entitlement to service connection for a tinnitus disability is granted.

Entitlement to service connection for a right great toe disability is denied.

Entitlement to service connection for low back disability, to include as secondary to pes planus is denied.

Entitlement to service connection for an anxiety disorder is denied.

REMANDED

Entitlement to service connection for a right foot disability, to include right foot pes planus, is remanded.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that the Veteran has had a right hamstring disability at any time during or approximate to the pendency of the claim.

2. Resolving doubt in favor of the Veteran, his tinnitus is etiologically related to his in-service noise exposure.

3. The evidence of record persuasively weighs against finding that the Veteran has had a right great toe disability at any time during or approximate to the pendency of the claim.

4. The evidence of record persuasively weighs against finding that a low back disability began during active service, or is otherwise related to an in-service injury or disease.

5. The evidence of record persuasively weighs against finding that the Veteran has had an anxiety disorder at any time during or approximate to the pendency of the claim.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a right hamstring disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to service connection for a tinnitus disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to service connection for a right great toe disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for entitlement to service connection for low back disability, to include as secondary to pes planus, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

5. The criteria for entitlement to service connection for an anxiety disorder have not been 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 in the United States Air Force from February 2004 to August 2005.

In the two February 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

The Board notes that the Veteran filed a supplemental claim seeking service connection for his right hamstring, right great toe, right foot strain, and tinnitus in March 2022. In a July 2022 rating decision, the VA Regional Office found that new and relevant evidence had been received and readjudicated the claims on the merits. As such, the Board may only consider evidence considered in the July 2022 rating decision, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303.

As for the Veteran's claim for service connection for his lumbar spine and anxiety disability, he filed an initial claim in June 2022. His claims were denied by the VA Regional Office in an October 2022 rating decision. Based on his election of the Evidence Submission docket, the Board may only consider the evidence of record at the time of the October 2022 rating decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303.

If evidence was submitted either (1) during the period after the VA Regional Office issued the rating decisions on appeal and prior to receipt of the VA Form 10182, or (2) more than 90 days following receipt of the VA Form 10182, the Board did not consider it in
by the VA Regional Office in an October 2022 rating decision. Based on his election of the Evidence Submission docket, the Board may only consider the evidence of record at the time of the October 2022 rating decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

As the Board is remanding the claim of service connection for a right foot disability, any evidence the Board could not consider will be considered by the VA Regional Office in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii).

SERVICE CONNECTION

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a).

Certain chronic diseases are subject to presumptive service connection if they manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a).

VA will also grant service connection on a secondary basis. Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998).

Recently, in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit Court of Appeals held 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims. Therefore, a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Right hamstring

The Veteran seeks service connection for a right hamstring disability. No specific assertion has been made in support of his claim.

As an initial matter, the VA Regional Office made a favorable finding that the Veteran has in-service injury resulting in a right hamstring strain. This favorable finding is binding on the Board, absent clear and unmistakable evidence. As such, the remaining questions before the Board is whether he has a current right hamstring disability and, if so, is it related to the in-service injury.

Upon review of the relevant evidence, the Board concludes he does not have a current right hamstring disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The Veteran's private
-service injury resulting in a right hamstring strain. This favorable finding is binding on the Board, absent clear and unmistakable evidence. As such, the remaining questions before the Board is whether he has a current right hamstring disability and, if so, is it related to the in-service injury.

The Veteran's private treatment records do not reflect any treatment or diagnosis of a right hamstring disability. Additionally, a May 2021 VA examiner stated that no diagnosis of a right hamstring disability was warranted. The VA examiner acknowledge that there was history of possible hamstring strain in 2004; however, the VA examiner stated there was no evidence of a hamstring strain on the day of the examination and his symptoms were only subjective. The VA examiner also noted that he did not use any assistive devices and that there had been no diagnostic testing. As such, the VA examiner stated that there is no evidence of any chronicity of care. The VA examiner further noted that he reported not receiving any further care for the claimed right hamstring strain since separation from service 15 years ago.

The Board has further considered whether the Veteran's reported symptoms are sufficient to constitute a disability. As held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. Unfortunately, the Board finds that the Veteran has not reported that he experiences any pain with his right hamstring. The Veteran only reported intermittent tightness of the right hamstring, not pain. Moreover, there is no evidence that his symptoms related to a right hamstring reaches a level of functional impairment of earning capacity. See May 2021 C&P Examination.

While the Veteran reports that he currently has intermittent tightness of the right hamstring, he is not competent to provide a diagnosis in this case. The issue of a diagnosis is a complex medical question and requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent May 2021 VA medical examination of record.

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against a finding of a current right hamstring disability, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. Tinnitus

The Veteran seeks service connection for a tinnitus disability. Specifically, he asserts that it is related to his duties of his military occupational specialty as a logistic journeyman.

The Board observes that the Veteran was granted service connection for tinnitus in a subsequent rating decision in April 2024. In that rating decision, the VA Regional Office found that his tinnitus has been established as directly related to his service. As there is no evidence of record that identifies a clear and unmistakable error in these favorable findings, the Board is bound by them. As such, entitlement to service connection for a tinnitus disability is also warranted for the period on appeal

3. Right great toe

The Veteran seeks service connection for a right great toe disability. No specific assertion has been made in support of his claim.

As an initial matter, the VA Regional Office made a favorable finding that the Veteran had a right great toe injury in service. This favorable finding is binding on the Board absent clear and unmistakable evidence. As such, the remaining questions before the Board are whether he has a current right great toe disability and, if so, is it related to the in-service injury.

Upon review of the relevant evidence, the Board concludes that the Veteran does not have a current right great toe disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The Veteran's private treatment records do
service. This favorable finding is binding on the Board absent clear and unmistakable evidence. As such, the remaining questions before the Board are whether he has a current right great toe disability and, if so, is it related to the in-service injury.

The Veteran's private treatment records do not reflect any treatment or diagnosis of a right great toe condition. Further, a review of a May 2021 VA examination reflects that he does not have any current right hammer toe or other conditions related to his great toe. Notably, the May 2021 VA examiner stated that there is no current chronic diagnosis made for the right great toe strain. The VA examiner indicated that while he was treated in service for the right great toe pain, he was eventually diagnosed with right foot pain. Moreover, the VA examiner indicated that he endorsed only being seen once for his right great toe condition and that he has not been treated for any right great toe condition since he separated from service.

The Board has further considered whether he has reported any symptoms of pain of the right great toe for sufficient to be considered a disability under Saunders; however, a review of the VA and private treatment records do not reflect any reports of any current right great toe pain. As such, consideration of any right great toe pain under Saunders is not warranted.

As the evidence of record persuasively weighs against a finding that he has a current right great toe disability, the benefit of the doubt doctrine is not applicable. As such, his claim for service connection for a right great toe disability must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

4. Low back disability

The Veteran seeks service connection for a low back disability. Specifically, he asserts that it is due to his bilateral pes planus disability and/or the result of intense physical training in service. See June 2022 Fully Developed Claim.

As an initial matter, the VA Regional Office made a favorable finding of a current low back disability in an October 2022 rating decision. As such, the questions for the Board are whether his current low back disability began during service or is at least as likely as not related to an in-service injury, event, or disease.

Although the Veteran asserts that his low back disability is related to his physical training in service, a review of his service treatment records are silent for any treatment or diagnosis of a low back condition. Moreover, there were no reports of any low back injury in service. In a June 2004 report of medical history, he affirmatively stated that he did not have recurrent back pain.

While his service treatment records reflect that he was seen for other ailments in service such as a great toe pain, right hamstring sprain, and right foot pain, they do not contain any entries describing any low back condition. This fact weighs against the credibility of any statement that he had any a low back condition in service. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). If the Veteran had a then-existing low back condition, it would be expected that he would report it as he sought treatment for other ailments such as a right great toe pain, right foot strain, and right hamstring strain in service.

The Board notes that he reported in a February 2011 private treatment record that his low back pain is due to a previous back injury, there pertinent evidence of record does not support a finding that he incurred a back injury during service.

The Board further acknowledge the Veteran's assertion that his low back pain is secondary to his bilateral pes planus; however, entitlement to service connection has not been granted for his bilateral pes planus disability during the October 2022 rating decision on appeal. As such, entitlement to secondary service connection is not warranted.

As the evidence of record persuasively weighs against a finding of an in-service event, injury, or disease, the benefit of the doubt doctrine is not applicable. As such, his claim for service connection for a low back disability must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

5. Anxiety

The Veteran seeks service connection for an anxiety disorder. Specifically,
; however, entitlement to service connection has not been granted for his bilateral pes planus disability during the October 2022 rating decision on appeal. As such, entitlement to secondary service connection is not warranted.

5. Anxiety

The Veteran seeks service connection for an anxiety disorder. Specifically, he asserts that he suffered from testing anxiety and was not able to pass any of his career development courses without a passing grade. See June 2022 Fully Developed Claim.

Upon review of the relevant evidence, the Board concludes that the Veteran does not have a current diagnosis of an anxiety disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

While he asserts that he had anxiety in service, a review of his private treatment records does not reflect any treatment or diagnosis of an anxiety disorder. Notably, throughout his private treatment records, he also consistently reported having no symptoms of anxiety. See July 2022 Medical Treatment Record-Non-Government Facility.

As there is no competent diagnosis of an anxiety disorder during the period on appeal, the Board finds evidence of record persuasively weighs against a finding of a current disability. As such, the benefit of the doubt doctrine and his claim for service connection for an anxiety disorder must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

REASONS FOR REMAND

1. Right foot, to include right foot pes planus

As an initial matter, the Board observes that the Veteran is claiming service connection for a right foot strain; however, the evidence demonstrates he has a diagnosis of a right foot pes planus disability. As such, the Board has recharacterized the Veteran's claims as being for entitlement to service connection for a right foot disability to include a right foot pes planus disability, in order to encompass all conditions reasonably contemplated by the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The Board finds this matter must be remanded to correct a duty to assist error that occurred prior to the July 2022 rating decision on appeal.

Ordinarily, a Veteran is presumed sound upon entry to service except for conditions noted upon entry to service. When a defect, infirmity, or disorder is noted on the enlistment examination, the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

When a condition is noted upon entry, the pre-existing injury or disease will be presumed 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 was due to the natural progress of the disease. 38 C.F.R. § 3.306(a). In claims like these, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation; the burden then shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." See Wagner, 370 F.3d at 1096.

In this matter, a May 2021 VA examiner indicated that while he did not have a current right foot strain or right great toe disability, he did have bilateral pes planus. The VA examiner further indicated that his condition was clearly and unmistakably present prior to his entry to service and that it was documented on his enlistment examination.

Upon review of the Veteran's service treatment record, his January 2004 enlistment examination reflects that he had mild and asymptomatic pes planus. See June 2017 STR-Medical. As the evidence reflects that he had a pre-existing right foot pes planus and there is an in-service injury to the right foot in service, and no medical opinion has been obtained to address aggravation of his right foot pes
, a May 2021 VA examiner indicated that while he did not have a current right foot strain or right great toe disability, he did have bilateral pes planus. The VA examiner further indicated that his condition was clearly and unmistakably present prior to his entry to service and that it was documented on his enlistment examination.

Upon review of the Veteran's service treatment record, his January 2004 enlistment examination reflects that he had mild and asymptomatic pes planus. See June 2017 STR-Medical. As the evidence reflects that he had a pre-existing right foot pes planus and there is an in-service injury to the right foot in service, and no medical opinion has been obtained to address aggravation of his right foot pes planus disability prior to the July 2022 rating decision on appeal, a remand is warranted to obtain a VA medical opinion.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination for his right foot disability. The examiner must review the claims file and complete a copy of this remand in conjunction with rendering any opinion. This review should be noted in the examination report.

The examiner is asked to address the following questions:

(a) Did the Veteran's pre-existing right foot pes planus disability undergo an increase in severity during service based on his right foot injury in April 2005 and physical training in service?

(b) If so, was the increase in severity consistent with the natural progression of the disease or did the increase represent a permanent worsening, or "aggravation," of the disease beyond its natural progression?

(Continued on the next page)

The term "aggravated" in the above context refers to a permanent worsening of the underlying right foot disability, as contrasted to a temporary increase or flare-up in the underlying disability with a return to a baseline level of symptomatology.

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board D. Xiong

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.

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