Citation Nr: 0812540 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 03-14 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for spondylosis and other residuals of decompression and fusion surgery of the cervical spine, to include as due to the veteran' service- connected foot disorders. 2. Entitlement to an initial rating in excess of 50 percent for bilateral hypermobile pes planus. 3. Entitlement to an initial rating in excess of 40 percent for residuals of a laminectomy and decompression surgery of the lumbar spine, to include degenerative disc disease and radiculopathy. 4. Entitlement to an initial rating in excess of 10 percent for residuals of a bunionectomy of the right foot. 5. Entitlement to an initial rating in excess of 10 percent for residuals of a bunionectomy of the left foot. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his wife, and a friend, D.L.F. ATTORNEY FOR THE BOARD J. Smith, Associate Counsel INTRODUCTION The veteran served on active duty from July 1963 to September 1963. The veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Winston-Salem, North Carolina, that denied the benefits sought on appeal. The Board notes that in a March 2008 correspondence from the veteran's representative, the veteran seeks entitlement to a total rating based on individual unemployability. This issue is referred to the RO for appropriate action. The issues of entitlement to initial ratings for bilateral hypermobile pes planus, residuals of a laminectomy and decompression surgery of the lumbar spine, to include degenerative disc disease and radiculopathy, residuals of a bunionectomy of the right foot, and residuals of a bunionectomy of the left foot are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Residuals of the veteran's decompression and fusion surgery of the cervical spine, including spondylosis, were not manifested during service, are not shown to be causally or etiologically related to active service or to any service- connected disability, and are not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from service. CONCLUSION OF LAW The criteria for service connection for spondylosis and other residuals of the veteran's decompression and fusion surgery of the cervical spine have not been met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks service connection for spondylosis and other residuals of a decompression and fusion surgery to the cervical spine. To establish direct service connection, the record must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. In addition, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Alternatively, certain diseases, chronic in nature, may be presumed to have been incurred in service, if the evidence shows that the disease became manifest to a degree of 10 percent or more within one year from separation from active service, even though there is no evidence of the disease during service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Arthritis has been identified as a chronic disease subject to presumptive service connection under 38 C.F.R. § 3.309(a), and spondylosis is a form of degeneration of the spine. See, Dorland's Illustrated Medical Dictionary 1743 (30th ed. 2003). At the outset, the Board finds that the veteran is not entitled to presumptive service connection for his cervical spine condition. The earliest post-service medical treatment records are dated from 1976, over ten years after service. Because no diagnosis of a cervical spine disability was made within one year of the veteran's service separation, the presumption for service connection for chronic diseases does not apply. §§ 3.307(a)(3), 3.309(a). The Board finds that service connection is also unwarranted on either a direct or secondary basis. As described in detail below, while the veteran has a current diagnosis of a cervical spine disability, there is no evidence that this disability manifested in service, and the preponderance of the evidence is against a link to active service or to his service-connected foot disorders. Taking direct service connection first, the record shows that the veteran currently suffers from a variety of cervical spine problems, including spondylosis and ankylosis, for example. However, his service medical records do not show any complaints of or treatment pertaining to his cervical spine. His entrance examination was normal in this regard, and the records show he was discharged due to problems with his feet. There are also no positive nexus opinions linking the veteran's current cervical spine disability and active duty. To the contrary, VA examiners in March 2007 and October 2005 provided negative nexus opinions in this regard. The March 2007 examiner found it "less than likely that any spine disorder was incurred in service or as a result of the veteran's service. The October 2005 examiner found, "[c]learly, the spine disorders Mr. [redacted] has did not originate during the service, and the first sign of spine difficulties did not show up until 12 years later." For these reasons, service connection on a direct basis is denied. As for secondary service connection, the veteran has devoted all of his effort in this appeal toward establishing a link between his service-connected foot problems and his cervical spine disability. To put it succinctly, the veteran contends that during basic training, a drill sergeant stomped on his bare feet with all his might while wearing heavy combat boots, crushing the veteran's feet and causing the veteran a lifetime of foot, back, and many other problems. In a rating decision of October 2007 the veteran was awarded service connection for bilateral hypermobile pes planus and residuals of bunionectomies of both feet because the RO found that the veteran's pes planus, which existed prior to service, was permanently worsened as the result of service, and that the bunionectomy residuals are secondary to pes planus. Additionally, as stated above, the veteran also has a current diagnosis pertaining to his cervical spine. However, the preponderance of the evidence does not support that his cervical spine problems were either caused or aggravated by his service-connected foot disabilities. Taking the positive evidence first, the objective medical evidence in support of such a link includes an August 2005 VA examination report, a September 2003 report of Dina Eisinger, M.D., and a May 2002 report of Kevin P. Speer, M.D. The August 2005 VA examiner found, "Mr. [redacted] back and spinal problems are, more likely than not, the direct result of his foot deformities that have altered his otherwise normal gait and shock absorption." In her September 2003 report, Dr. Eisinger states, "I do feel that it is likely that his foot difficulties suffered in the military have contributed substantially to his spine difficulties over the years." In his May 2002 report, Dr. Speer explains that foot disorders often precipitate back problems, not only because foot problems cause poor posture and body mechanics, but because they also result in limited mobility which fosters the progression of arthritis, muscle atrophy, or osteoporosis in the back. The objective medical evidence against the veteran's argument includes an October 2005 VA examination report, stating "my conclusion is that the probability of the lumbar spine problems being related to the foot disorders is as least as likely as not (50%) but the cervical spine problems are unconnected." In the October 2006 remand the Board sought either confirmation or denial of the October 2005 opinion, and subsequently a March 2007 VA examiner found, "I have concluded that the additional evidence supports the October 2005 determination that it is at least as likely as not that the veteran's lumbar spine disabilities but not his cervical spine disabilities are etiologically related to diagnosed foot disorders." The Board has carefully considered all of the evidence in favor of and against the veteran's argument that his cervical spine difficulties are linked to his foot disorders, and finds that the October 2005 and March 2007 VA examination reports are more probative, for several reasons. First, the August 2005 VA examiner does not specify which "back and spinal problems" he refers to in his nexus opinion. During this appeal the veteran has also sought service connection for a lumbar spine disorder, distinct from his cervical spine disorder, and service connection for the lumbar condition was granted in the October 2007 rating decision as secondary to the veteran's bilateral pes planus. Moreover, the August 2005 examiner is a podiatrist. The subsequent October 2005 VA examination report, discussed further below, was prepared by a general physician who, giving deference to the podiatrist's opinion, fleshed the issue out by explaining that it is the veteran's lumbar spine problems, not his cervical spine problems, that are related to his feet. As for the reports of Dr. Eisinger and Dr. Speer, neither opinion was formed upon a review of the veteran's claims file. Neither report indicates that the veteran's claims file or medical records were reviewed. Also, both of the reports provide very loose associations between the veteran's cervical spine disorder, and his feet. Dr. Eisinger states that the veteran's foot disorders have contributed to his "spine difficulties," but she does not specify which spine difficulties she is referring to. Moreover, a subsequent report from Dr. Eisinger, dated from November 2005, appears to clarify this, as she clearly explains that a link exists between the veteran's lumbar spine condition and the trauma to his feet from service. The May 2002 report of Dr. Speer is also indirect. Dr. Speer does not discuss any of the veteran's actual medical conditions, and instead briefly explains that there is a general link between feet problems and back problems. As Dr. Eisinger's report appears to pertain to the veteran's lumbar spine, and Dr. Speer's nexus opinion is explained very generically, and neither were informed by a review of the claims file, both are of low probative value. By contrast, both the October 2005 VA examination report and the March 2007 VA examination report were prepared upon a review of the claims file. The October 2005 VA examiner, while giving deference to the August 2005 opinion, does not appear to necessarily agree and explains why. He states, "[a]ll of the spine surgical procedures have been performed specifically for spine degenerative changes, including facet arthritis and herniated disc. Since spine degenerative changes are ubiquitous in the population I find it very difficult to know whether the abnormal foot condition led to the eventual degenerative changes." Moreover, he went on to specifically exclude the veteran's cervical spine condition as related to his bilateral foot problems. The Board finds this rationale and the examiner's specificity as to the area of the spine affected, is more probative than the August 2005 podiatrist's opinion, which is more generally stated and does not account for the nature of the veteran's spinal disorders or the fact that he has two distinct spinal disorders. The March 2007 VA examiner conducted a fresh review of the claims file and examination of the veteran, and concluded the October 2005 examiner's opinion, finding that the medical evidence supports that the veteran's lumbar spine disorder, but not his cervical spine disorder, is related to his bilateral foot disorders. The Board notes that the medical record includes a number of other nexus opinions pertaining to the veteran's back and feet, but these specifically link the veteran's lumbar spine disorder to his feet, not his cervical spine disorder, and are not relevant to the decision at bar. As previously stated, the veteran has already been service-connected for his lumbar spine disorder as secondary to his bilateral foot disorder. In addition, the Board has considered the veteran's arguments, as well as the lay statements of his wife, sister, and friends in support of his assertion that his cervical spine difficulty is related to his bilateral foot disorder. However, the veteran, his wife, sister, and friends, as lay persons untrained in the field of medicine, are not competent to offer an opinion in this regard. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). For all of these reasons, service connection is denied for the veteran's cervical spine disability. Notice and Assistance Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in March 2002, February 2005, and October 2006 provided the veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter of October 2006 specifically informed the veteran that he should submit any additional evidence that he had in his possession, and also provided him with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. The veteran's initial duty-to-assist letter was not provided before the adjudication of his claim. However, after he was provided the letters he was given a full opportunity to submit evidence, and his claim was subsequently readjudicated. He has not claimed any prejudice as a result of the timing of the letters, and the Board finds no basis to conclude that any prejudice occurred. Any notice defect in this case was harmless error. The content of the aggregated notices, including the notice letters subsequently issued, fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). After VA provided this notice, the veteran communicated on multiple occasions with VA, without informing it of pertinent evidence. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His service medical records and post service treatment records have been obtained. He has had two hearings, one before the RO and one before the Board. He has been afforded a number of VA examinations. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran with the development of evidence is required. ORDER Entitlement to service connection for spondylosis and other residuals of decompression and fusion surgery of the cervical spine is denied. REMAND At the time of the Board's last remand in October 2006, the veteran was seeking service connection for bilateral hypermobile pes planus, residuals of a laminectomy and decompression surgery of the lumbar spine, to include degenerative disc disease and radiculopathy, residuals of a bunionectomy of the right foot, and residuals of a bunionectomy of the left foot. Subsequently, in a rating decision of October 2007 the veteran was granted service connection for each of these conditions. In a January 2008 VA Form 21-4138 the veteran expressed his disagreement with the ratings assigned for each of these conditions. He has not been afforded a statement of the case (SOC) concerning these issues. Where an SOC has not been provided following the timely filing of a notice of disagreement, a remand, not a referral to the RO, is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO should issue an SOC with respect to the issues of entitlement to initial increased ratings for bilateral hypermobile pes planus, residuals of a laminectomy and decompression surgery of the lumbar spine, to include degenerative disc disease and radiculopathy, residuals of a bunionectomy of the right foot, and residuals of a bunionectomy of the left foot. The appellant should be advised of the time period in which a substantive appeal must be filed in order to obtain appellate review of those issues. The claims file should be returned to the Board for further appellate consideration only if the appellant files a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs