Citation Nr: 1116168 Decision Date: 04/26/11 Archive Date: 05/05/11 DOCKET NO. 08-21 333 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for spondylosis of the lumbar spine, L5. 2. Entitlement to an initial rating in excess of 10 percent for cervical strain. 3. Entitlement to service connection for a bilateral foot disorder. 4. Entitlement to service connection for chest pain, to include breathing problems. 5. Entitlement to service connection for myofascial pain syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1997 to September 2000 and from March 2001 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions that were issued by the Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned Acting Veterans Law Judge at an August 2009 hearing. At the Veteran's hearing he claimed that he was unable to work due to his service connected disabilities. The issue of entitlement to a total disability rating by reason of individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that the Veteran did not file a VA Form 9 with respect to his claim for service connection for myofascial pain syndrome. However, at the time of the August 2009 hearing, the Veteran still had time to file his substantive appeal. Thus, the undersigned determined to accept the hearing transcript in lieu of the VA Form 9 and assumed jurisdiction of this issue. The Board observes that the Veteran filed a claim for service connection for posttraumatic stress disorder (PTSD) which was denied in a January 16, 2007 rating decision. A statement of the case (SOC) was issued in October 2007. The Veteran filed a VA Form 9 that was received on January 31, 2008. On June 3, 2009 the RO informed the Veteran that his VA Form 9 was untimely. He did not appeal that decision. Therefore, the issue of service connection for PTSD is not before the Board at this time and will not be further addressed herein. The issues of entitlement to an initial rating in excess of 10 percent for spondylosis of the lumbar spine, a rating in excess of 10 percent for cervical strain, service connection for chest pain including breathing problems, and service connection for myofascial pain syndrome, 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 The Veteran's bilateral pes planus pre-existed his service and were not made worse by service. CONCLUSION OF LAW Pes planus was not incurred in, or caused or aggravated by, service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice 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; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in June 2006 that explained the parameters of VA's duty to assist the Veteran with obtaining evidence in support of his claim. The June 2006 letter also explained what the evidence needed to show in order to establish service connection for a claimed disability as well as explained the manner whereby VA assigns ratings and effective dates for service connected disabilities. In addition to providing the above notices to the claimant, VA also must make reasonable efforts to assist him or her with obtaining evidence necessary to substantiate his or her claim(s), unless no reasonable possibility exists that such assistance would aid in substantiating the claim(s). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist includes obtaining copies of service treatment records (STRs). In this case, VA was unable to obtain the Veteran's STRs from the records custodian. In a November 2006 letter the Veteran was notified that VA was unable to obtain his STRs from the service department and requested that he send in originals or copies of his STRs if he had them in his possession. The Veteran responded by sending in a copy of the STRs. Although the RO referred to these records as "partial", they appear to cover the period of the Veteran's active service from May 1997 to September 2000. The Veteran's contentions involving his bilateral foot condition appear to involve this period of service, rather than the later, four month period of service for which no service treatment records are available. Further, at his August 2009 hearing the Veteran admitted that he did not seek treatment for flat feet at all during his service. However, the Board acknowledges its heightened obligation to consider carefully the benefit of the doubt rule in cases where all or part of the Veteran's service treatment records are unavailable through no fault of the Veteran. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In addition to copies of STRs that were submitted by the Veteran, the claims file includes evidence including VA treatment records, private treatment records, and a transcript of the Veteran's testimony at the August 2009 hearing. The Veteran was also afforded a VA examination with respect to his claim that his pes planus was made worse by his military service. The Board determined that the requirements of the VCAA were met and that there were no prejudicial errors that would preclude a full and fair adjudication of the Veteran's claim for service connection for a bilateral foot disorder at this time. Service connection The Veteran contends that his flat feet were caused, or made worse, by his service. At his hearing, the Veteran testified that although he may have had mild pes planus prior to service, he did not have problems with his feet then. The Veteran contended that he was a parachutist and that parachute jumps and walking while carrying heavy gear aggravated his flat feet condition. The Veteran testified that he had pain in his feet in service but that he did not seek treatment for his foot pain because seeking medical care for illnesses and injuries was discouraged in his unit. The Veteran contended that after service the condition of his feet were worse than when he entered service and that he now had lost most of the arches on his feet. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When determining service connection, a presumption of soundness applies. 38 C.F.R. § 3.304(b). Pursuant to such presumption, a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. Id. In this case, the Veteran's entrance examination in June 1997 indicated that the Veteran then had mild asymptomatic pes planus. Therefore, this condition was noted at entry and the presumption of soundness does not apply; the notation on the Veteran's service records that he had mild pes planus prior to service clearly and unmistakably proves that the Veteran had flat feet prior to service. The Veteran's STRs do not show that he ever complained of, or received any treatment for, flat feet. On a July 2000 separation examination the Veteran explicitly denied having any foot trouble. A separation examination completed on the same date makes no mention of any problem with the Veteran's feet. VA treatment records reflect that the Veteran was treated for multiple musculoskeletal problems since 2006. A physician noted that the Veteran then had significantly pronated feet and he was fitted with orthotics in 2007 but this did not help his low back pain. It was noted that the Veteran's back and knee pain was likely due to his flat feet. A September 2009 letter from the Veteran's physician indicated that there was a "reasonable probability" that "the kind of activities related to being a foot soldier carrying a significant load... could play a role in the progression" of the Veteran's flat feet condition. The Veteran also submitted a progress note from a nurse practitioner dated in September 2009 to the effect that it is possible to have acquired flat feet. The nurse practitioner opined that "[p]es planus could possibly develop as a result of rigorous physical training and rigorous physical activity by a soldier in the Airborne Infantry." As a result, the Veteran was afforded a VA examination in November 2009 to determine whether his flat feet were in fact aggravated by his military service. The examining podiatrist recorded that the Veteran related that he had flat feet that caused him significant pain. After 40 minutes of weight bearing, he had pain in both arches. The pain was equal bilaterally. By his statement, he was never without pain. The Veteran was provided with arch supports and custom shoes by VA that helped reduce his foot pain but he was not wearing them at the time of the examination. Upon physical examination, the skin on the Veteran's feet was normal. There were no calluses, corns, or areas of irritation from abnormal shoe contact or ground friction and irritation. The Veteran had normal protective sensation in his feet. Muscle strength was 5 out of 5. He had bilateral flat feet. When weight bearing and asked to roll into inversion he did have a slight arch formation on the right, less on the left. He had bilateral heel valgus. There was minimal medial bulge. Range of motion at the ankles was greater than 15 degrees for normal gait. The Veteran's gait was slightly pronated, as was his stance. Palpation of the arch and foot was essentially normal, except that the Veteran reported that he experienced tenderness to palpation. X-rays of the feet showed bilateral congenital pes planus. The examiner opined that the Veteran's flat feet were not aggravated by his service. The examiner noted that the Veteran reported that he had been a ranger and a paratrooper, but that the x-rays and examination did not show that anything in his jumps or military service changed the structure that would be expected given his age and the degree of congenital pes planus. The examiner noted that he was a 30 year retired Army podiatrist who had seen many paratroopers. His experience was that if they have some type of congenital foot problem that is being made worse or is injuring the foot, it is picked up long before, or is complained about long before, they get out of the service. It was his opinion that the Veteran's "feet are the feet that he would have had whether he was in service or not. There are no physiological or structural changes to suggest any type of trauma." The Board finds the opinion of the VA examiner who performed the November 2009 examination of the Veteran's feet to be highly probative. While a nurse practitioner opined that the Veteran's military activities "could possibly" have caused flat feet to develop, this opinion is speculative and does nothing to relate this Veteran's flat feet to his in service activities. Additionally, the Veteran's flat feet could not have developed as a result of his Army training since they preexisted his service. The opinion of the Veteran's general practice physician that the Veteran's weight bearing activities in service "could play are role in the progression" of the Veteran's flat feet condition is similarly speculative as it does not indicate that it is at least as likely as not that the Veteran's particular flat feet condition was caused by his military service, noting only that military service could possibly have played a role in the development of the Veteran's flat feet. See, e.g., Bostain v. West, 11 Vet. App. 124, 127-128 (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) ( a medical opinion that a particular event "may" have led to the Veteran's disability is too speculative to establish a causal relationship)). Moreover, neither of these health care professionals were podiatrists and there was no indication that they conducted a thorough examination of the Veteran's feet or that they reviewed his medical history with regard to his feet. In contrast, the VA examiner, a podiatrist who reviewed the claims file, including the two opinions set forth above, the Veteran's service treatment records, and his VA treatment records, and who conducted a thorough examination of the Veteran's feet, opined that the Veteran's feet were the feet that he would have had whether or not the Veteran had military service. He noted that there were no structural changes to the feet and no indications on examination that were suggestive of foot trauma. Rather, the condition of the Veteran's feet was consistent with his age and the natural progression of his congenital flat feet condition. The examiner also noted that in his considerable experience as an Army physician dealing with paratroopers that it was unlikely that if the Veteran's flat feet were in fact made worse in service that he would have gone through his entire period of service without complaint. The Board acknowledges the Veteran's contention that his feet started hurting in service. However, the Board finds that the Veteran's contentions are not credible insofar as the Veteran specifically denied any history of foot trouble in the "Report of Medical History" that he prepared in conjunction with his separation examination. Moreover, given that the Veteran sought medical care for other types of pain, such as neck pain and knee pain, while he was in service, there is no reason to believe that he would not have also sought treatment for pain in his feet if he had in fact experienced such pain during his service. This conclusion is also consistent with the experience of the VA examiner, who noted that normally if a paratrooper has problems with his feet, including aggravation of a condition that existed prior to service, this was complained about or discovered well before the paratrooper got out of service. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, service connection for flat feet is denied. ORDER Service connection for a bilateral foot disorder is denied. REMAND During his August 2009 hearing, the Veteran claimed that his back and neck conditions got worse since his last VA examination for these conditions which was in July 2007. The Veteran testified that he had reduced flexibility, reduced range of motion, and greater discomfort in his back and neck. Given the age of the prior examination and the Veteran's contentions, a new examination should be provided to assess the current severity of the Veteran's lumbar spine and cervical spine disabilities. See VAOGCPREC 11-95 (where a claimant asserts to the Board that there has been a further increase in the severity of his disability subsequent to the RO decision, the duty to assist may require that the Board remand the issue for additional evidentiary development, including a new examination). The Veteran was not afforded a VA examination with respect to his claims for service connection for chest pain, including a breathing disorder, and myofascial pain syndrome. With respect to his claim that he experiences chest pain and has breathing problems, the Veteran testified that this problem was related to an episode of pharyngitis that he had in service, as documented in his STRs. The Veteran contends that this occurred after exposure to smoke from various fires in Kosovo. The Veteran contends that since that time he had chronic chest pains and breathing problems. This testimony satisfies the low standard for the provision of a VA examination that was set forth in McClendon v. Nicholson, 20Vet. App. 79, 86 (2006). Similarly, with respect to his claim for service connection for myofascial pain syndrome, the Veteran contends that during service he began to experience various pains throughout his body, beginning in his shoulders and leading out to his extremities. He testified that his pains continued since that time, and were eventually diagnosed by a VA provider as myofascial pain. VA treatment records reflect that the Veteran is currently diagnosed with myofascial pain. Given the Veteran's contentions about the continuity of his symptoms since service, a VA examination should be obtained to determine whether the Veteran currently has myofascial pain syndrome, as distinct from his service connected orthopedic problems, and, if so, whether the pains that the Veteran reportedly experienced in service represented the onset of this disorder. Given the additional development needed in this case, more recent treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify all treatment that he received for his low back, neck, chest pains including breathing problems, and myofascial pain syndrome since May 21, 2008. All identified treatment records should be obtained. VA treatment records should also be obtained. If records are identified but cannot be obtained this fact, as well as the efforts that were made to obtain the records, should be clearly documented in the claims file. The Veteran should also be notified of VA's inability to obtain the records. 2. Thereafter, the Veteran should be afforded a VA orthopedic examination to determine the current severity of his lumbar and cervical spine disabilities. All symptoms and functional effects of these disabilities should be fully documented in the report of examination. The examiner should also indicate whether the Veteran has a myofascial pain syndrome that is separate and distinct from his service connected back and knee disabilities. If so, the examiner should set forth whether it is at least as likely as not (at least 50 percent likely) that this disorder onset during, or was caused or aggravated by, the Veteran's service. The examiner should clearly set forth the rationale for his or her conclusions in the report of examination. If the examiner is unable to provide the requested opinion without resort to undue speculation, then this should also be indicated in the report of examination. 3. The Veteran should be afforded a VA respiratory examination to determine the nature and etiology of any respiratory disorder that he may have. If a respiratory disorder is diagnosed, then the examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that this disorder resulted from the Veteran's military service, including the episode of pharyngitis in service and/or exposure to smoke. The examiner should clearly set forth the rationale for his or her conclusions in the report of examination. If the examiner is unable to provide the requested opinion without resort to undue speculation, then this should also be indicated in the report of examination. 4. After completion of the above development, the Veteran's claims should be re-adjudicated. If the determination remains unfavorable/less than fully favorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. 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. 2010). ______________________________________________ JOHN JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs