Citation Nr: 1306453 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-02 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral foot disability, to include pes planus. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected intervertebral disc syndrome of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. The Board notes that this appeal originally included a claim of service connection for an acquired psychiatric disorder, to include mental stress, anxiety, and depression. However, service connection for major depressive disorder, as secondary to service-connected lumbar spine disability, was granted in an October 2012 rating decision. As such, that issue is no longer on appeal. In July 2011, the Veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the claims file. In September 2011, the Board remanded the claims on appeal for additional evidentiary development, to include scheduling the Veteran for a VA examination. All requested development has been conducted and the appeal has been returned to the Board for adjudication. Unfortunately, however, the Board finds that additional development is needed with respect to the claims on appeal. Therefore, for reasons discussed below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Bilateral Foot Disability The Veteran is seeking service connection for a bilateral foot disability, which he has asserted is manifested by pain on the plantar surface of both feet, particularly with use of his feet. See VA treatment records dated 2005 to 2012. Review of the record reveals the Veteran has been diagnosed with pes planus (flat feet) and plantar fasciitis bilaterally. See January 2005 VA outpatient treatment record. The service treatment records (STRs) show that asymptomatic, second degree pes planus was noted at the Veteran's November 1985 entrance examination. Because a pre-existing disability was noted upon entry into service, the Veteran cannot bring a claim of service connection for that disability, but the Veteran may bring a claim for aggravation of that disability. See 38 U.S.C.A. § 1153. In September 2011, the Board remanded the bilateral foot claim in order to obtain a VA examination and opinion that addressed whether the Veteran's pes planus was aggravated by service. In March 2012, the Veteran was afforded a VA examination, after which the examiner opined that the evidence clearly and unmistakably shows that the Veteran's pre-existing pes planus was not aggravated beyond its natural progression by an in-service injury, event, or illness. In making this determination, the examiner noted that records and podiatry examination show that the Veteran's pes planus has not been aggravated beyond its natural progression. While the September 2011 VA examiner provided a rationale in support of his opinion, the Board notes that it is not clear if the VA examiner considered all relevant facts in providing his opinion. In this regard, the STRs show that the Veteran was treated for pes planus and plantar fasciitis in service. The Veteran's representative has argued that the evidence showing complaints of pain in his arches during service and the additional in-service diagnosis of plantar fasciitis reflects that the Veteran's pre-existing pes planus was aggravated during service, given that his pes planus was asymptomatic at entry. In this context, the Board notes that plantar fasciitis was not noted at entry into service but was, indeed, diagnosed during service and is shown in the current medical evidence of record. However, the VA examiner did not address whether the treatment the Veteran received in service, particularly the diagnosis and treatment for plantar fasciitis, represented a permanent worsening of his pes planus during service. In this regard, the Board notes that the Veteran continues to receive treatment for pes planus and plantar fasciitis. See January 2005 VA treatment record. In evaluating the probative value of a medical opinion, the guiding factors include whether the opinion is based upon sufficient facts and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In this case, it does not appear that the March 2012 VA examiner considered all significant facts in this case. As such, the Board finds that a remand is needed in order to obtain an additional opinion regarding whether the Veteran's pre-existing pes planus disability was aggravated during active military service. Cervical Spine The Veteran is seeking service connection for a cervical spine disability. He has asserted that his current cervical spine disability is secondary to his service-connected lumbar spine disability or, in the alternative, is directly related to his military service. The Veteran was afforded a VA examination in March 2012, at which time he was diagnosed with degenerative disc disease of the cervical spine. As to the etiology of the current cervical spine disability, the VA examiner opined that it is less likely than not that the current disability is proximately due to or a result of the service-connected lumbar spine disability, noting that degenerative disc disease would not have been caused by the lumbar spine disability. The examiner also opined that it is less likely than not that the current disability was incurred in or caused by an in-service injury, event, or illness, noting that degenerative disc disease was diagnosed many years after service and was not treated or seen in an on-going fashion in service. The Board finds that the opinions rendered by the March 2012 VA examiner are inadequate for the following reasons. With respect to the secondary service connection question, the Board finds that the rationale provided by the examiner appears to be a restatement of the conclusion, without reference to the evidence or other medical information that supports the conclusion. Indeed, the examiner stated that the cervical spine disability is less likely than not proximately due to or a result of the service-connected lumbar spine disability because the disability would not have been caused by the lumbar spine service condition. The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." See Bloom v. West, 12 Vet. App. 185, 187 (1999). Therefore, on remand, the March 2012 VA examiner should be requested to provide an adequate rationale in support of his opinion that the Veteran's cervical spine disability is not proximately due to or a result of his service-connected lumbar spine disability. In addition to the foregoing, while the VA examiner considered whether the Veteran's cervical spine disability was caused by his service-connected lumbar spine disability, the examiner did not address whether the cervical spine disability is aggravated by the lumbar spine disability. In this regard, the Board notes that a VA opinion that a service-connected disability did not cause the non-service-connected disability is an insufficient opinion when aggravation has been claimed. See Allen v. Brown, 7 Vet. App. 439 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Therefore, on remand, the RO will be requested to obtain an amended medical opinion that addresses whether the Veteran's cervical spine disability is aggravated by his service-connected lumbar spine disability. With respect to the direct service connection question, it appears that the March 2012 VA examiner provided a negative nexus opinion based on the lack of evidence showing treatment for a degenerative cervical spine disability during service. While there is no contemporaneous medical evidence showing complaints or treatment for a degenerative cervical spine disability during service, the Veteran has asserted that his neck pain began after he injured his low back in service. He testified that he felt a slight tension, with pinching, in neck during service and that he believes he possibly injured his neck at the same time he threw his low back out while lifting track parts. The Veteran is competent to report the events that occurred in service. See Layno v. Brown, 6 Vet. App. 465 (1994). In addition, a VA examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service, and the examination is inadequate when the examiner does not comment on the Veteran's report of in-service injury and, instead, relies on the absence of evidence in the service medical records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, the Board notes that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Based on the foregoing, the Board finds that an additional medical opinion is needed with respect to the direct service connection question, which addresses the Veteran's lay assertions of in-service incurrence and the medical evidence of record. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records for September 2011 forward. 2. Request that the March 2012 VA examiner review the claims file, including this remand, and provide an addendum to his previous examination report that addresses the following: With respect to the bilateral foot disability: a. Does the evidence show that the pre-existing pes planus disability increase in severity in service? In answering this question, the examiner must consider and address the evidence showing that the Veteran's pes planus was asymptomatic at entry into service but that he complained of pain in his arches during service, which was contributed to pes planus, and was also diagnosed with plantar fasciitis in service after objective examination reveled tenderness along the plantar fascia in his right foot. Essentially, the examiner must consider whether the complaints and treatment for pes planus and plantar fasciitis during service represented a permanent worsening of the pre-existing pes planus disability. b. If there is evidence of a permanent increase in severity in service, is there clear and unmistakable evidence that the permanent increase in severity was due to the natural progress of the disease? c. A rationale must be provided for each opinion offered. If the foregoing cannot be answered on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report and explain why this is so. Please do not restate your conclusion as the basis for your findings. With respect to the cervical spine disability, the examiner must answer each of the following: a. Is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's current cervical spine disability is proximately due to or the result of his service-connected lumbar spine disability? b. Is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's current cervical spine disability is aggravated by his service-connected lumbar spine disability? In answering the foregoing, the examiner should note that aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints. c. Is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's current cervical spine disability was incurred in or otherwise related to his military service? In answering the foregoing, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. d. A rationale must be provided for each opinion offered. If the foregoing cannot be answered on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report and explain why this is so. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).