Citation Nr: 1102013 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 05-19 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a right foot disorder. 3. Entitlement to service connection for a disorder of the chest, claimed as chest wall syndrome. 4. Entitlement to service connection for a gastrointestinal disorder, to include residuals of H. pylori infection. 5. Entitlement to an initial compensable rating for herniated nucleus pulposus at L4-5, L5-S1 (low back disability) prior to March 24, 2010, and an initial rating greater than 20 percent from that date. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from August 2000 to August 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York (RO). Jurisdiction over the claims file was subsequently transferred to the New York, New York, RO. The Veteran presented testimony before the undersigned Acting Veterans Law Judge at the RO in September 2006. A transcript of this hearing has been associated with the record. The Board notes a December 2009 VA Form 21-0820, Report of General Information, of record that indicates the Veteran called to let VA know that she has a hearing scheduled for New York and wanted to have a hearing re-scheduled to New Jersey. In reviewing the record, the Board does not find any currently pending hearing request with respect to the issues that are currently before the Board on appeal. In that regard, and as mentioned above, the Veteran testified at a September 2006 Travel Board hearing held at the New York RO before the undersigned regarding all of the issues listed on the title page. The Board notes that "a hearing on appeal will be granted" if an appellant, or an appellant's representative acting on his or her behalf, expresses a desire to appear in person. 38 C.F.R. § 20.700(a) (2010) (emphasis added). In this case, a hearing has already been provided. Further, the record does not reflect that the Veteran has any other pending claims and/or appeals awaiting a hearing. As such, the Board finds that no further action is required with respect to the statement about rescheduling a hearing that is indicated on the December 2009 VA Form 21-0820. However, with respect to the matters that are being remanded in this decision, if the Veteran decides on remand that she would like another hearing, she can make a request for one, with a supporting explanation as to why, to the Agency of Original Jurisdiction (AOJ) for consideration, and a decision will then be made as to whether or not she is legally entitled to another hearing. In November 2009, a statement with accompanying medical evidence was received from the Veteran. In that statement she raises informal claims for entitlement to service connection for a disability of the hands, for posttraumatic stress disorder, and for a "lost memory" disability. Because these issues are not presently before the Board on appeal, they are referred to the AOJ for appropriate handling in the first instance. The issues of entitlement to service connection for right foot disorder, for a disorder of the chest, claimed as chest wall syndrome, and for a gastrointestinal disorder, to include residuals of H. pylori infection, as well as entitlement to a compensable initial rating for a low back disability prior to March 24, 2010, and an initial rating greater than 20 percent from that date, 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 A chronic and recurrent right ankle sprain is shown by the competent evidence of record to be related to the Veteran's active military service. CONCLUSION OF LAW Chronic and recurrent right ankle sprain residuals were incurred in active service, and therefore service connection is granted for a right ankle disorder. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Regarding the Veteran's service connection claim for a right ankle disorder, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Legal Criteria and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic disabilities, to include arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). The Veteran contends that her current right ankle disability is related to an in-service injury she sustained, to include an incident in January 2002 while in Kosovo. (See September 2006 Travel Board hearing Transcript "Tr." at 3-6.) At the September 2006 Travel Board hearing, the Veteran testified that the injury occurred when she was leaving guard duty about 2 to 3 stories above a sector. (Id. at 3.) She testified that as she was walking down the stairs her "feet went up in the air and I went all the way down the staircase to the bottom and I landed on my back." (Id.) The Veteran has contended that she injured her right ankle during this fall. As will be discussed below, the Board finds that service connection for a chronic and recurrent right ankle sprain is warranted on a direct incurrence basis. Therefore, as this is a full grant of the benefit sought on appeal, the Board finds that a discussion regarding presumptive service connection is moot. Initially, the Board notes that there is competent evidence of record indicating current residuals of an old right ankle sprain. Upon VA joints examination in March 2010, the examiner diagnosed chronic and recurrent right ankle sprain, mild. 38 C.F.R. § 3.159(c)(4)(i)(A) (2010) (noting that there can be competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability). Based on the foregoing, the Board finds that the Veteran has current residuals of a right ankle injury and that the first element in establishing direct service connection has been established. The Board's next inquiry focuses on the possible occurrence of an in-service injury, event, or disease. As noted by the Board in its December 2008 remand, service treatment records reflect the Veteran's complained of mild right ankle pain following a September 2001 injury. On physical examination, no ligamentous instability or swelling was identified. Range of motion was within normal limits. A diagnosis of "resolving ankle sprain" was rendered. Service treatment records dated in September 2001 also reflect the Veteran's complaints of a one-year history of right foot pain in the mid-distal plantar area. While no conclusive diagnosis was rendered, an October 2001 bone scan suggested a right foot stress fracture, with slightly increased uptake over the metatarsal head. Increased uptake over the right ankle was also noted. Right ankle pain was again noted in November and December 2001 service treatment records. The July 2004 VA pre-discharge examination report notes normal physical findings of the right ankle and the examiner did not attribute any physical diagnosis to the Veteran's complaint of ankle pain. The Veteran is competent to report what occurred during service. See Washington v. Nicholson, 19 Vet. App. 363, 368 (2005). As such, the Board finds the Veteran competent to report the mild right ankle pain after a September 2001 injury and the occurrence of the January 2002 in-service injury where she fell down stairs. The Board also finds the Veteran to be credible on this point, especially in view of the in-service treatment. In light of the Veteran's testimony and her service treatment records, the Board finds that she suffered from right ankle pain and incurred an injury in service. As such, the second element of a service connection claim has been established. Regarding competent evidence of a nexus to service, the Board notes that the March 2010 VA joints examiner stated, "The Veteran's right ankle condition is at least as likely as not related to the [V]eteran's military service." The examiner indicated that this opinion was reached after a review of the Veteran's claims file, including all relevant tabbed documents, current medical records and diagnostic studies, and pertinent medical literature. It was noted that the Veteran works primarily in clerical work with no civilian injuries stated. The examiner stated that the Veteran's injuries and activities in service altered the normal biomechanics in her right ankle and the altered biomechanics pattern is "at least as likely as not . . . related to her current chronic right ankle condition." The Board finds the above VA opinion by the March 2010 VA joints examiner (an orthopedic physician) to be probative and competent medical evidence in favor of the Veteran's service connection claim for residuals of a right ankle injury. The examination report reflects that the Veteran's claims file was reviewed, to include service treatment records. As such, the above opinion was provided in light of the recorded history of the disability. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (finding that a physician's access to the claims file is an important factor, although not single factor, in assessing the probative value of a medical opinion). The Board also notes that the VA joints examiner was "informed of the relevant facts" concerning the Veteran's claimed right ankle disorder. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). Moreover, there is no competent evidence of record refuting the opinion of the March 2010 VA examiner. In situations where there is an approximate balance of positive and negative evidence, the Board provides the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Here, the record shows that the Veteran has current, recurrent residuals of a right ankle injury and an event/injury in service. Additionally, the March 2010 VA joints medical opinion relates the Veteran's current residuals of a right ankle injury to her military service. As a result, and resolving the benefit of the doubt in the Veteran's favor, service connection is granted for the residuals of a right ankle injury. 38 U.S.C.A. §§ 1110, 5107. ORDER Entitlement to service connection for right ankle disorder is granted. REMAND The Board finds that additional development is warranted for the Veteran's claims for service connection for right foot, chest, and gastrointestinal disorders, as well as the initial rating claim for her service-connected low back disability. 38 C.F.R. § 19.9 (2010). The following further development is required. Treatment Records After the last supplemental statement of the case was issued in April 2010, the Veteran submitted additional evidence without a waiver of RO consideration of this evidence. A review of the newly submitted evidence reveals that some of the records have not been previously submitted for RO review and they are pertinent to the issues remaining on appeal. The Board notes that VA regulations require that pertinent evidence submitted by the appellant must be referred to the Agency of Original Jurisdiction (AOJ)/RO for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2010). A statement waiving RO jurisdiction over the new evidence is not associated with the claims folder. In this regard, an August 2007 treatment report notes that the Veteran complained of intermittent tingling sensation all over her back. Another August 2007 treatment report reflects that the Veteran was seen for low back pain. The additional evidence also included VA podiatry treatment and a diagnostic test regarding H. pylori. As such, these records are relevant to the issues on appeal and may signal that there are additional outstanding treatment reports. Consequently, a remand is warranted for development regarding these records and initial consideration of this evidence by the RO. Additional Active Service The record indicates that the Veteran may have had another period of active service in addition to the dates listed in the Introduction section. See, e.g., March 2010 VA general examination report (noting that the Veteran served in the Army from 2000 to 2004 and from 2007 to 2008). Therefore, the Board finds that on remand all of the Veteran's periods of active service should be verified. If any additional service (other than from August 2000 to August 2004) is verified, any associated service treatment records should be obtained. Right Foot, Chest, and Gastrointestinal Disorders After reviewing the record, the Board finds that another remand is warranted for the right foot claim because the AOJ has not yet substantially complied with the directives contained in the Board's December 2008 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (stating that RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). Specifically, in the December 2008 remand, the Board directed that the appropriate VA examiner provide a nexus opinion with respect to any current diagnosed right foot disability and "[a] supporting rationale should be provided for any opinions expressed." With regard to the right foot claim, a report of March 2010 VA foot examination indicates that the examiner diagnosed the Veteran with mild degenerative osteoarthritis changes in the first metatarsophalangeal joint of the right foot. The examination report reflects that the examiner answered that the Veteran's right foot disorder was "less likely as not" related to an event, injury or disease in service. The examiner's rationale focuses, however, on bunions and a more specific opinion is provided that the Veteran's bunions are not at least as likely as not caused by military service but that spending long periods of time on one's feet and wearing certain shoes could have likely aggravated the bunions. The Board finds this rationale to be inadequate as it focuses on the Veteran's bunions, which was not listed as a diagnosis in the examination report. This examination report is also inadequate because the examiner fails to provide a nexus opinion regarding the diagnosis of degenerative osteoarthritis changes in the first metatarsophalangeal joint of the right foot in accordance with the Board's prior remand directive. As such, a remand is warranted for another VA examination and opinion with a thorough supporting rationale. Regarding the service connection claims for chest and gastrointestinal disorders, the Board finds that a remand for VA examinations to obtain adequate medical opinions for these claims is also necessary. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr, 21 Vet. App. at 311. The Veteran was provided a VA general examination for these disabilities in March 2010. The VA physician provided negative nexus opinions for the diagnoses of chest pain and gastroesophageal reflux disease (GERD). The March 2010 VA general examiner's rationale that that the Veteran's current chest pain was not related to service was that there was no specific heart conditions diagnosed during her military service. This rationale is based on an incomplete factual premise. While the Veteran's service treatment records do not contain a diagnosis related to the Veteran's heart, the Veteran has testified that she had chest pain in service. (See September 2006 Board hearing Transcript "Tr." at 19-20.) These in- service complaints of chest pain do not appear to have been considered by the VA examiner. In this regard, the Board notes that the Veteran is competent to testify as to symptoms, which are non-medical in nature. See Barr , 21 Vet. App. at 307 (noting that lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). The Veteran is also competent to report what occurred during service. Washington, 19 Vet. App. at 368. In that regard, the Board finds she is competent to report having experienced chest pain in service. Further, the Board finds this testimony to be credible as the Board has no reason to question the Veteran's statement. Additionally, as was noted in the Board's December 2008 remand, service treatment records are replete with multiple complaints of severe chest wall pain on the part of the Veteran. In light of the foregoing, the Board finds the March 2010 general examiner's response to be entirely inadequate to decide this claim and a remand is therefore necessary. See 38 C.F.R. § 4.2 (2010) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). The AOJ should have returned the opinion to the examiner for clarification due to its obvious inadequacies, but since that did not occur, a remand is now required. With regard to the GERD diagnosed at the March 2010 VA general examination, the examiner opined that the reason this disability was not related to service is because a recent endoscopy (performed in August 2009) showed negative H. pylori. From a review of the examination report, it appears that the examiner failed to consider the Veteran's service treatment records reflecting several complaints of abdominal pain in 2002 together with a diagnosis of an H. pylori infection in July of that year. It is noted that the Board may not rely on a medical examiner's conclusory statements if they lack supporting analysis. Stefl, 21 Vet. App. at 125 (stating that Board may not assess probative value of "a mere conclusion by a medical doctor"). A medical opinion must be "based upon consideration of the Veteran's prior medical history and examinations and also describe[ ] the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Id. at 123 (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Further, a physician providing a nexus opinion must be "informed of the relevant facts." Nieves-Rodriguez, 22 Vet. App. at 303. As the Board is prohibited from providing its own unsubstantiated medical opinions, the above findings require further review by a medical professional. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the Board finds a remand is necessary to obtain a new examination with a medical nexus opinion regarding the Veteran's currently diagnosed GERD with a thorough supporting rationale that considers the pertinent notations in the Veteran's service treatment records. Again, the AOJ should have returned the opinion to the examiner for clarification due to its obvious inadequacies, but since that did not occur, a remand is now required. Low Back Disability The December 2008 Board remand directed the examiner to "note if any objective neurologic abnormality is present which is associated with the veteran's service-connected low back disability." (Emphasis in original.) The March 2010 VA spine examination report reflects the Veteran's history of numbness, paresthesias, and leg or foot weakness. Additionally, to the following question "Is etiology of these symptoms unrelated to claimed disability?" the examiner responded "No". The examiner's response to this question indicates that there is in fact an etiological relationship between the noted neurological symptoms and the Veteran's service-connected low back disability. The examiner, however, did not provide any explanation for this response. Further, this VA spine examination report reflects that a positive Lasegue's sign was noted on the Veteran's right side and that there was no testing for non-organic physical signs. As noted above, the newly submitted evidence by the Veteran reflects complaints of intermittent tingling sensations all over her back in August 2007. The assessment was intermittent paresthesias in back. Other newly submitted evidence (also dated in August 2007) reflects that the Veteran reported that her pain will sometimes radiate down to her thigh and knee and that her right leg will give out because of this pain. The Veteran's neurological impairment may warrant a separate rating. See Note (1) following the General Rating Formula for Diseases and Injuries of the Spine (instructing the rater to evaluate any associated objective neurologic abnormalities, separately, under an appropriate diagnostic code). 38 C.F.R. § 4.71a. As such, the Board finds that a remand is warranted for a VA examination to determine the nature, extent, and etiology of the Veteran's neurologic signs and symptoms and for the AOJ to consider pertinent, newly submitted evidence in the first instance. Accordingly, this case is REMANDED for the following actions: 1. Request that the Veteran supply the complete names, addresses, and dates of treatment of all medical care providers (VA and/or non-VA) who have treated her for low back, right foot, chest pain, and gastrointestinal disorders. After securing any necessary authorization or medical releases, the AOJ should request and associate with the claims file the Veteran's treatment reports from all sources identified whose records have not previously been secured. 2. Verify all of the Veteran's periods of active service, to include a possible additional period of active service during 2007 to 2008 . If additional active service is verified, obtain and associate any service treatment records. 3. After all records identified above have been obtained and associated with the claims file, the Veteran should be scheduled for a VA foot examination by a podiatrist for purposes of determining the current nature, extent and etiology of her current right foot disability. All appropriate tests and studies (and consultations, if warranted) should be accomplished, and all clinical findings should be reported in detail. The examining podiatrist must provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent or greater probability) that the Veteran's current right foot disability (previously diagnosed in March 2010 as mild degenerative osteoarthritis changes in the first metatarsophalangeal joint of the right foot) is related to an event, injury, or disease in service. The examiner should also opinion if any arthritis of the right foot was manifested to a compensable degree within one year of her separation from service. The claims file should be reviewed in conjunction with this request and the report thereof should reflect that such review occurred. A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed. If the examiner is unable to provide a requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided. 4. The Veteran also should be scheduled for an appropriate VA examination for purposes of determining the current nature, extent and etiology of any current chest disability. All appropriate tests and studies (and consultations, if warranted) should be accomplished, and all clinical findings should be reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent or greater probability) that any diagnosed chest disability, to include chest pain, is related to an event, injury, or disease in service. As part of providing this opinion, the examiner must specifically review and discuss the Veteran's in-service complaints of chest pain. The claims file should be reviewed in conjunction with this request and the report thereof should reflect that such review occurred. A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed. If the examiner is unable to provide a requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided. 5. The Veteran also should be scheduled for an appropriate VA gastrointestinal examination for purposes of determining the current nature, extent and etiology of any current gastrointestinal disability, to include GERD. All appropriate tests and studies (and consultations, if warranted) should be accomplished, and all clinical findings should be reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent or greater probability) that any diagnosed gastrointestinal disability, to include GERD, is related to an event, injury, or disease in service. As part of providing this opinion, the examiner is specifically asked to review and discuss the Veteran's service treatment records reflecting several complaints of abdominal pain in 2002, together with a diagnosis of an H. pylori infection in July of that year. The claims file should be reviewed in conjunction with this request and the report thereof should reflect that such review occurred. A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed. If the examiner is unable to provide a requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided. 6. Finally, the Veteran should be scheduled for orthopedic and neurological examinations to determine the current severity of her service-connected low back disability. All necessary tests should be performed, to include any diagnostic tests, and all clinical manifestations should be reported in detail. The findings reported should specifically include the range of motion of the spine (to include any functional loss due to pain, weakened movement, excess fatigability, or incoordination on movement) and whether the spine is ankylosed. The examiner(s) should ascertain whether the low back disability has caused any incapacitating episodes (periods of bed rest prescribed by a physician) and, if so, note their duration and frequency. The neurological examiner is specifically asked to comment if the Veteran has any neurological manifestations. If so, the examiner should provide the appropriate diagnosis and comment on the etiology of such. The examiner is also asked to describe the nature, severity, and frequency of the neurological manifestations in detail. The claims file should be reviewed in conjunction with this request and the report thereof should reflect that such review occurred by both the orthopedic and neurological examiners. A thorough rationale should be provided for all opinions expressed. 7. After all of the above has been completed, readjudicate the issues on appeal, considering all evidence of record. If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and her representative an appropriate opportunity to respond. The case should then be returned to the Board, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Richard C. Thrasher Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs