Citation Nr: 1305485 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 09-47 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a right ankle strain, to include as secondary to service-connected bilateral pes planus. 2. Entitlement to service connection for a left ankle strain, to include as secondary to service-connected bilateral pes planus. 3. Entitlement to service connection for a low back disability with pain radiating to the bilateral lower extremities, claimed as a right flank condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran had active service from February 1975 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In December 2012, the Veteran testified at a hearing held before the undersigned Veterans Law Judge (VLJ). At the hearing, he reported his bilateral pes planus had increased in severity, which the Board interprets as a claim for an increased rating for that condition. This issue is referred to the RO for appropriate action. The issue of service connection for a low back disability with pain radiating to the bilateral lower extremities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection is in effect for bilateral pes planus. 2. Resolving all reasonable doubt in the Veteran's favor, his ankle strain of the right and left lower ankles is proximately due to his service-connected bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for service connection for right ankle strain are met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, (2012). 2. The criteria for service connection for left ankle strain are met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for bilateral ankle strain. As such no discussion of VA's duty to notify and assist is necessary. The Veteran seeks service connection for a right ankle strain and a left ankle strain, which he avers are related to his service-connected bilateral pes planus. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records (STRs) show the Veteran complained of pain behind his right ankle in April 1975. The impression was possible Achilles tendonitis. He also complained of pain on the medial side of his right ankle and the diagnosis was flat feet in January 1976. In December 2005, the Veteran was accorded a compensation and pension (C&P) feet examination during which he reported that he has had pain in both arches, heels, and both ankles that has progressively worsened over the past three years. In May 2006, the Veteran was accorded a C&P joints examination during which he indicated his belief that his ankle conditions were due to his pes planus because of walking and standing. The diagnosis was bilateral ankle strain. The examiner stated that she could not offer an opinion because such knowledge was not available in the medical literature and that to offer any opinion would be speculation. She further indicated that she was unable to make a direct connection and the Veteran's STRs were silent for treatment of the ankles. In an August 2006 statement, a VA podiatrist indicated that the Veteran was seeking treatment for his painful bilateral flat feet through the VA Podiatry Surgery Clinic. The physician opined that, due to the Veteran's severely flat feet, his ankles were becoming overworked and causing him significant pain on ambulation and weight bearing. He noted that the Veteran's flat feet caused his Achilles tendon to become very tight and painful, thereby limiting his daily living. In September 2007, the Veteran had MRIs of the bilateral ankles with a diagnosis of ankle pain and plantar fasciitis. During a November 2010 VA examination, the Veteran reported experiencing heat in his ankles. The examiner reviewed ankle x-rays dated in December 2006 that were negative for ankle disorders. During the December 2012 Board hearing, the Veteran testified that he did not have ankle problems until his arches fell. He further stated that a VA physician informed him that he was walking with more pressure on his ankles due to his flat feet. The Veteran has provided a competent and credible account of bilateral ankle symptomatology. See Jandreau, 492 F.3d at 1377. He reports generally consistent bilateral ankle manifestations, including solely for the purpose of seeking medical care and treatment for his service-connected bilateral pes planus. These factors together make the Veteran's account of neurological symptomatology competent credible and highly probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (VA must consider lay evidence and give it the weight it concludes is appropriate). While the December 2005 and November 2010 VA examiners failed to provide diagnoses and etiological opinions, and the May 2006 VA examiner failed to provide an etiological opinion for her diagnosis of bilateral ankle strain, this is not fatal to the Veteran's claims. An August 2006 VA physician opined that the Veteran's severely flat feet resulting in the overworking of his ankles, thus causing him significant pain on ambulation and weight bearing. The Board finds the May 2006 diagnosis and the August 2006 opinion to sufficiently convey the competent and credible medical assessment that the bilateral ankle strain found upon examination is a manifestation of the Veteran's service-connected bilateral pes planus. Thus, the Board finds that the August 2006 VA physician letter provides competent and highly probative medical evidence in favor of the Veteran's claim. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In sum, as the Veteran is service-connected for bilateral pes planus and the Veteran has a current diagnosis of bilateral ankle strain and has provided a competent and credible account of experiencing bilateral ankle symptomatology. Further, the most probative medical evidence of record adequately reflects an assessment that the Veteran's diagnosed Veteran's bilateral ankle strain was likely due to his pes planus. As such, service connection is warranted. ORDER Service connection for a right ankle strain is granted. Service connection for a left ankle strain is granted. REMAND The Veteran also seeks entitlement to service connection for a low back disability with pain radiating to the bilateral lower extremities, claimed as a right flank condition. During the December 2012 Board hearing, the Veteran indicated that he was seeking entitlement to service connection for a low back disorder with pain that radiated to the bilateral lower extremities. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.") A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"). In light of Ingram, Brokowski, and Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection a low back disability with pain radiating to the bilateral lower extremities, claimed as a right flank condition. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Ingram, Brokowski, and Clemons. During the Board hearing, the Veteran testified that a VA physician informed him that his low back disorder was a result of his flat feet and ankles in February 2012. Under 38 U.S.C.A. § 5103A(d)(2) (West 2002), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon, supra. The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. The Veteran has not been afforded a VA examination. In light of his testimony that his low back disorder may have resulted from his flat feet and ankles, the Veteran should be accorded a VA examination to address the etiology of any back condition present. The Board also observes that the Veteran receives ongoing VA treatment. However, the most recent VA treatment records are current only as of April 2007. A review of the Veteran's Virtual VA eFolder revealed no recent VA treatment records have been associated with the Veteran's file. As there potentially are outstanding VA medical records relevant to the appeal, there is a duty to obtain such records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Associate, with the claims folder, physically or electronically, VA medical records pertaining to the Veteran that are dated since April 2007. Any additional records identified by the Veteran should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Notify the Veteran that he may submit additional lay statements from himself, as well as from other individuals who have first-hand knowledge of the onset of his low back and lower extremity symptoms. He should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his claimed low back disorder, to include as due to his bilateral pes planus and bilateral ankles. The claims folder must be made available and reviewed by the examiner. The examiner should diagnose all current low back disorders. Based on a review claims file and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not that any diagnosed low back disorders are etiologically related to the Veteran's period of service, or related to his service-connected disabilities, to include his recently service-connected bilateral ankles. All findings and conclusions must be set forth in a legible report. 4. Then readjudicate the Veteran's claim. If the benefit sought on appeal is not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs