Citation Nr: 1007153 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-20 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for residuals of a T12 compression fracture. 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. 3. Entitlement to service connection for bilateral foot disability. 4. Entitlement to service connection for herniated nucleus pulposus at L5-S1. 5. Entitlement to service connection for right knee disability. 6. Entitlement to service connection for left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had military service from March 2001 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified from the RO at a Board hearing held in September 2009. Additional evidence was submitted at that hearing, along with a waiver of any right to initial RO consideration of that evidence. The issues concerning the propriety of the initial ratings assigned the residuals of a T12 compression fracture and radiculopathy of the right lower extremity 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. FINDINGS OF FACT 1. The Veteran developed a herniated nucleus pulposus at L5- S1 in service. 2. Right knee disability was incurred in service. 3. A chronic right or left foot disorder (other than a left calcaneal fracture) was not present in service, and the Veteran does not currently have a right and/or left foot disorder (other than residuals of a calcaneal fracture). 4. The Veteran does not have a left knee disability. CONCLUSIONS OF LAW 1. The Veteran's herniated nucleus pulposus at L5-S1 is due to a disease or injury that was incurred in active duty. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2009). 2. The Veteran's right knee disability is due to a disease or injury that was incurred in active duty. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303. 3. Bilateral foot disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303. 4. Left knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. In the present case, VA provided the Veteran with the contemplated notice in an October 2005 correspondence (prior to the adjudication of his claims), except for notice concerning the initial disability rating and effective date to be assigned in the event service connection is granted for his claimed disorders. Unfortunately, the RO never provided notice as to the latter two elements. In any event, given that, as discussed below, service connection for bilateral foot disability and left knee disability is not warranted, he can not have been prejudiced by VA's failure to provide him with adequate notice of the referenced two elements. As to the lumbar spine and right knee disorders, the Board trusts that the RO will accord the Veteran the due process to which he is entitled in implementing the Board's grant of service connection for those disorders. Based on the procedural history of this case, it is the conclusion of the Board that VA has complied with any duty to notify obligations set forth in 38 U.S.C.A. § 5103(a). With respect to VA's duty to assist the Veteran, all pertinent records identified by him have been obtained, and the record does not suggest that any relevant records remain outstanding. 38 U.S.C.A. § 5103A. Moreover, the record shows that he was examined on behalf of VA in connection with his claims in November 2005. The Veteran does not contend, and the record does not show that the examination was inadequate. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claims. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order for service connection to be granted for a claimed disability, there must be evidence of the current existence of such claimed disability. See Chelte v. Brown, 10 Vet. App. 268, 271 (1997); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Factual background The service treatment records contain the report of medical history completed by the Veteran when he entered service in March 2001; the report is silent for reference to any pertinent complaints. The report of his actual entrance examination is not on file. The records show that in February 2002, the Veteran injured his low back and left foot in a fall. There was a visible contusion to the lumbar area of his spine, and a subsequent Magnetic Resonance Imaging (MRI) study documented the presence of a disc bulge at L5-S1 without foraminal compromise. X-ray studies shortly after the incident revealed the presence of a left calcaneal fracture but no other abnormalities. A March 2003 bone study showed trace increased uptake involving the talocalcaneal joint consistent with a stress change. The service records for 2003 document continued complaints of low back and left foot pain, and also note the onset of bilateral knee and right foot problems. The Veteran was noted to have mild bilateral symptomatic pes planus. The Veteran underwent a medical board examination in July 2003, which concluded that he had a herniated nucleus pulposus at L5-S1 as well as a left calcaneal fracture. A second report in August 2003 noted radiographic evidence of disc disease at L5-S1. The report of the Veteran's examination for discharge indicated that the Veteran had disc disease at L5-S1; bilateral foot pain; and right knee Osgood-Schlatter's disease. During service the Veteran attended a VA examination in November 2003 (at the time, he was expecting to be released from service following a medical board evaluation). He reported falling more than 20 feet in service onto his back and left foot. The examiner noted diagnostic studies in service showed the presence of a minimal disc bulge at L5-S1, and that similar studies of the left foot revealed a left calcaneal fracture. The examiner noted that the Veteran thereafter developed an L5 radiculopathy and currently reported low back and left foot problems. Physical examination revealed orthopedic limitations in the low back, but no neurologic deficits. X-ray studies of the lumbar spine were negative. No abnormalities of the left foot were identified on examination, and X-ray studies were negative. As for the right knee and right foot, at the examination the Veteran reported that he developed pain from using crutches during the healing of his left calcaneal fracture. Physical examination of the right knee showed the presence of a prominent tibial tubercle with minimal tenderness. Examination of the right foot showed the presence of mild hallux valgus, with no other deformity. X-ray studies of the right knee were consistent with chondromalacia patella of the right knee. X-ray studies of both feet showed no significant radiographic residuals of the prior left calcaneal fracture, but did show suspected bilateral os trigonum, and demonstrated that the arches were slightly low on non- weightbearing lateral views. The VA examiner diagnosed the Veteran as status post T12 compression fracture secondary to fall with associated L5-S1 disc bulge; status post left calcaneal extra-articular posterior facet fracture, healed, with left foot arthralgia and mild functional impairment; right tibial tubercle Osgood- Schlatter's disease; and right foot mild hallux valgus. On file are military hospital records for May 2005 to August 2005 documenting complaints of pain in the low back, feet, and knees. The only pertinent diagnosis was of chronic low back pain. The Veteran attended a VA fee basis examination in November 2005. He reported being diagnosed as having Osgood- Schlatter's disease in the right knee several years ago. He explained that he still experienced pain with flare ups. He also reported experiencing low back pain from the L5-S1 disc bulge. Physical examination of the feet disclosed no evidence of abnormal weightbearing, although he had a gait favoring the left side. The feet did not evidence any abnormalities, including pes planus or hallux valgus. Examination of the knee revealed no identified abnormalities. Examination of the lumbar spine showed tenderness in the L5 area, with reduced range of motion. X-ray studies of the tibia and fibula, the knees, and the spine were normal. The examiner indicated that with respect to the claimed bilateral knee problems, the Veteran had right knee Osgood- Schlatter's disease; he did not offer a diagnosis for the left knee. The examiner concluded that there was no pathology on which to render a diagnosis concerning the claimed L5-S1 disc bulge. As to the foot problems, the examiner did not offer a diagnosis. At his September 2009 Board hearing, the Veteran testified to the incident in which he fell through a hatch. He explained that he injured his back, feet and knees in the incident, and that his left foot still swells. Analysis I. Herniated nucleus pulposus The service treatment records document that the Veteran sustained a significant falling injury in February 2002, which resulted in the immediate observation of a contusion to the low back. By November 2002, MRI studies demonstrated the presence of disc herniation at L5-S1. The same was noted at the November 2003 in-service VA examination and the medical boards conducted in 2003 identified the presence of disc disease at L5-S1. Although the November 2005 VA fee basis examiner concluded that there was no pathology on which to conclude that disc disease or herniation at L5-S1 was present in the Veteran, the Board notes he based his opinion on X-ray studies, rather than the more detailed studies performed in service. The Board finds it unlikely that the disc herniation demonstrated in service resolved by the time of the VA fee basis examination, and finds it more likely that the X-ray studies used by the fee basis examiner simply were not sophisticated enough to detect such an abnormality. Given the clear documentation in service of a significant low back injury, and the evidence on diagnostic studies in service of disc herniation at L5-S1, and given the deficiencies in the diagnostic studies used by the VA fee basis examiner, the Board will resolve reasonable doubt in the Veteran's favor and find that the evidence is in equipoise as to whether he has a herniated nucleus pulposus at L5-S1 that is etiologically related to service. Consequently, service connection is warranted for herniated nucleus pulposus at L5-S1. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Right knee disability The Veteran's service entrance examination is not on file. His report of medical history for that examination records no complaints referring to the right knee. The presumption of soundness therefore attaches with respect to the knee disorder. The Board notes that there is no evidence on file which suffices to rebut the presumption of soundness for the right knee disorder, whether it is described as Osgood- Schlatter's disease or chondromalacia patella. Consequently the Veteran is entitled to the presumption that his knee was in sound condition when he entered service. The service treatment records show that the Veteran was found to have Osgood-Schlatter's disease in service, although radiologists suggested the knee abnormalities might instead represent chondromalacia patella. Shortly following service a VA fee basis examiner concluded that the Veteran had right knee Osgood-Schlatter's disease. Although the fee basis examiner did not provide an opinion concerning the etiology of the diagnosed right knee disorder, given that the Veteran was first diagnosed with the same disorder in service, and has demonstrated since shortly after service that he still has right knee disability, the Board will resolve reasonable doubt in the Veteran's favor and find that the evidence is in equipoise as to whether his right knee disability is etiologically related to service. Consequently, service connection is warranted for right knee disability. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Bilateral foot disability The Board initially notes that service connection for residuals of a left calcaneal fracture was granted in a January 2006 rating decision. The Veteran is seeking service connection for foot disability other than the residuals of the referenced fracture. Although the service treatment records show that the Veteran was at times considered to have mild bilateral pes planus (the November 2003 VA X-ray studies showed some evidence of lowered arches, but the examiner did not diagnose pes planus), the Veteran has not demonstrated any pes planus since service. The VA fee basis examiner specifically noted the absence of any pertinent deformities of either the right or the left foot. The same is true with respect to the hallux valgus noted on the right foot at the November 2003 VA examination; the only post-service examination on file specifically noted the absence of any hallux valgus on either foot. Although a bone scan in service showed abnormalities in both feet, the left foot abnormalities were attributed to the calcaneal fracture, and those on the right foot were attributed to "stress changes," but not to any specific disorder. The Board notes that the Veteran himself has not provided statements or testimony describing the nature of his claimed bilateral foot disorder, other than with respect to pain. In any event, even if he is competent to diagnose himself with such a disorder (provided the disorder is something observable such as flat feet), see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Board finds that the probative value of his lay diagnosis is outweighed by the observations and determinations of the November 2005 examiner that the Veteran does not have any such disorders. The Board points out that the examiner is a physician who clearly has substantially more experience, training and expertise in diagnosing disabilities than does the Veteran. That examiner evaluated both feet, and in providing his diagnoses only found that the Veteran had residuals of a calcaneal fracture. In short, the competent and credible evidence does not show that the Veteran had a chronic right and/or left foot disorder (other than the left calcaneal fracture) in service, and the competent evidence as a whole does not demonstrate that he currently has a right and/or left foot disorder (again, other than the left calcaneal fracture). Nor does the competent evidence show that the Veteran had a right or left foot disorder at any point during the pendency of his claim. See McLain v. Nicholson, 21 Vet. App. 319 (2007). As noted previously, for service connection to be granted, there must be evidence of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). As the preponderance of the evidence therefore is against the claim, service connection for bilateral foot disability is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Left knee disability The service treatment records, although recording complaints of bilateral knee problems, are silent for any pertinent findings regarding the left knee. Following service, the Veteran attended a VA fee basis examination which evaluated both of his knees. Physical examination and X-ray studies of the left knee were normal, and the examiner only provided a diagnosis of disability for the right knee, implying (particularly given the negative clinical and radiological findings) that the Veteran did not have a left knee disorder. The Veteran has not provided statements or testimony describing the nature of his claimed left knee disorder with any specificity. Even if he is competent to diagnose himself with such a disorder, the Board finds that the probative value of his lay diagnosis is outweighed by the observations and determinations of the November 2005 examiner. The Board again points out that the examiner clearly has substantially more experience, training and expertise in diagnosing disabilities than does the Veteran. In short, the competent and credible evidence does not show that the Veteran had a left knee disorder in service, and the competent evidence as a whole does not demonstrate that he currently has a left knee disorder, or even that he had one at any point since his claim. As the preponderance of the evidence therefore is against the claim, service connection for left knee disability is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for herniated nucleus pulposus at L5-S1 is granted. Entitlement to service connection for right knee disability is granted. Entitlement to service connection for bilateral foot disability is denied. Entitlement to service connection for left knee disability is denied. REMAND The Board's determination in the prior section that service connection is warranted for herniated nucleus pulposus at L5- S1 will affect the assignment of the proper initial rating for the Veteran's thoracolumbar spine disorder. In addition, the Veteran at his September 2009 hearing suggested that his thoracolumbar spine disorder and right leg radiculopathy had worsened in severity since the last examination conducted in November 2005. The Board points out that the referenced examination was focused more on determining the etiology of the claimed disorders, rather than their current severity. For the above reasons, the Board finds that additional VA examination of the Veteran is warranted with respect to the initial rating claims on appeal. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should arrange for VA orthopedic and neurologic examinations of the Veteran by physicians with appropriate expertise to determine the nature, extent and severity of the Veteran's service-connected thoracolumbar disability; and the nature, extent and severity of the Veteran's service- connected right lower extremity radiculopathy. All indicated studies, including range of motion studies in degrees, and electrodiagnostic studies should be performed. Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described. The physicians should identify any objective evidence of pain or functional loss due to pain. Any specific functional impairment due to pain should be identified, and the examiners should be requested to assess the extent of any pain. The physicians should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the physicians should so state. The neurological examiner should specifically indicate, with respect to any degenerative disc disease found, whether the Veteran has experienced incapacitating episodes (i.e., periods of acute signs and symptoms due to an intervertebral disc syndrome (IVDS) that require physician prescribed bed rest and treatment by a physician) of IVDS over the past 12 months, and if so, identify the total duration of those incapacitating episodes over the past 12 months. The neurological examiner should also identify any associated objective neurologic abnormalities, to include of the lower extremities, and should set forth findings relative to any such neurologic impairment evident from the Veteran's IVDS. Any abnormal nerve findings due to IVDS, including right lower extremity radiculopathy, should be described in detail and the degree of paralysis, neuritis or neuralgia should be set forth (i.e. mild, moderate, severe, complete). The examiners should also provide an opinion as to the impact of the Veteran's thoracolumbar spine disability and right lower extremity radiculopathy on his employability. The rationale for all opinions expressed should be explained. The claims files must be made available to and reviewed by the examiners. The examination reports are to reflect that such a review of the claims files was made. 2. The RO should then readjudicate the issues remaining on appeal. The RO should consider whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. If the benefits sought on appeal are not granted in full the RO must issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs