Citation Nr: 1310863 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 07-09 997 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder, to include as secondary to the service-connected degenerative disc disease (DDD) of the lumbar spine and left and right lower extremity lumbar radiculopathy associated with the DDD of the lumbar spine (claimed as hurting feet). 2. Entitlement to service connection for hyperlipidemia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from January 1988 to June 1988 and from December 2003 to March 2005. He had additional service in the National Guard. This matter initially came before the Board of Veterans' Appeals (Board) from a July 2006 rating decision issued by the RO. In that decision, the RO, in pertinent part, denied entitlement to service connection for bilateral pes planus and entitlement to service connection for hyperlipidemia. The Board remanded the claims on appeal in February 2011 for further development. That development has been completed, and the case has since been returned to the Board for appellate review. Although the RO specifically denied entitlement to service connection for bilateral pes planus, the Board notes that the Veteran's claim is for service connection for a bilateral foot disorder, generally (not limited to just pes planus). Thus, the Board has recharacterized the issue on appeal as noted on the title page. The Veteran's appeal originally included the issue of entitlement to service connection for headaches. During the pendency of the appeal, the RO, in a May 2012 rating decision, granted service connection for tension headaches and assigned a 30 percent rating for the disability, effective on March 5, 2005. Therefore, his appeal concerning the issue of service connection for headaches has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran is service-connected for, in pertinent part, DDD of the lumbar spine, left lower extremity lumbar radiculopathy associated with the DDD of the lumbar spine, and right lower extremity lumbar radiculopathy associated with the DDD of the lumbar spine. His demonstrated bilateral foot pain is shown to be caused by these service-connected disabilities. 2. Hyperlipidemia (and elevated cholesterol levels) alone do not constitute a disability for which VA compensation benefits may be awarded. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in the Veteran's favor, a bilateral foot disorder manifested by bilateral foot pain is shown to be proximately due to or the result of the service- connected DDD of the lumbar spine and left and right lower extremity lumbar radiculopathy associated with the DDD of the lumbar spine that were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2011). 2. The Veteran is not shown to have a current disability manifested by hyperlipidemia (and elevated cholesterol levels) that is due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in December 2005 and June 2006 letters issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection for the bilateral foot and hyperlipidemia disorders, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The June 2006 letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Hence, the December 2005 and June 2006 letters, which meets the content of notice requirements, also meets the VCAA's timing of notice requirement. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. In addition, the Veteran was afforded (most recently) a VA examination in March 2011 in connection with his claims for service connection for the claimed bilateral foot and hyperlipidemia disorders. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the examination and medical opinions obtained in this case are adequate, as they are predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, including the contentions and statements of the appellant and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Further, the Board is aware that this appeal was remanded by the Board in February 2011. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the RO obtain an adequate VA medical opinion regarding the etiology of the Veteran's bilateral foot and hyperlipidemia disorders. This development was completed in the March 2011 VA examination reports. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). In summary, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis Bilateral Foot Disorder The Veteran asserts that he developed chronic foot pain during his second period of active service. His service treatment records show that he was found to have pre-existing bilateral pes planus during his first period of active service. The records associated with his second period of active service show that he complained of burning foot pain at the time of his separation from his second period of service. Clinical evaluation of the feet, however, was normal. Post-service clinical records show that the Veteran has continued to complain of foot pain. Statements written by the Veteran's wife in support of his claim attest to the Veteran's ongoing foot discomfort. The Veteran underwent VA examination of the feet in January 2006. At the time of the foot examination, he complained of bilateral arch pain that had its onset during the middle of his tour in Iraq and seemed to be getting worse. He stated that his feet currently were very sore all the time. The pain worsened after 30 minutes of standing, requiring that he sit. Physical examination revealed calluses but no other structural abnormalities. He was, however, tender in the area of both medial longitudinal arches. His foot posture was normal in the standing position, as was his Achilles alignment. His arches were shallow but present in weight bearing and non-weight bearing. The diagnosis was no objective evidence of any condition affecting the feet other than bilateral onychomycosis of the toenails and bilateral tinea pedis. Pursuant to the February 2011 Board remand, the Veteran received another VA examination in March 2011. In addition to documenting review of pertinent treatment records associated with the claims file and the Veteran's complaints of bilateral foot pain, the examiner also noted that a comorbid condition of radiculopathy due to the service-connected DDD of the lumbar spine existed. The Veteran complained of severe flare-ups (7 out of 10) of foot pain that lasted less than an hour and affected his ability to stand for longer than 10 minutes or walk immediately upon rising. Objectively, there was no corns, calluses, edema, flat feet, pain on manipulation of the Achilles tendon, painful motion or restricted motion. Tenderness at the attachment site of the plantar fascia to the calcaneus was demonstrated without evidence of abnormal weight-bearing, weakness or instability. X-ray reports were negative for pes planus and the Veteran was status post right great ingrown toenail. The diagnosis was: "objective, clinical, x-ray and claims file reports do not show objective evidence for pes planus." The examiner commented that the Veteran did not have a pre-existing condition prior to service. However, the examiner commented that it was at least as likely as not that the Veteran's current service-connected lumbar spine condition with radiculopathy was the cause of his foot pain. The examiner found that it was less likely than not that the current diagnosis of pes planus was related to or had its onset during service; however, the examiner ultimately concluded that the comorbid lumbar spine degenerative disc disease with radiculopathy was the consistent cause of the Veteran's bilateral foot pain. Given this review of the record, the Board finds the evidence shows that the Veteran's bilateral foot disorder is at least as likely as not proximately due to or the result of his service-connected DDD of the lumbar spine and left and right lower extremity lumbar radiculopathy associated with the DDD of the lumbar spine. In this regard, the Veteran contends and his wife confirms that his bilateral foot pain onset during his period of service. They are competent to provide evidence of visible symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, the Board finds such contentions credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, in the March 2011 VA examination report, the examiner concluded that it was at least as likely as not that the Veteran's service-connected lumbar spine condition with radiculopathy was the cause of his foot pain. The examiner is certainly competent to offer an opinion regarding medical causation. Resolving reasonable doubt in the appellant's favor, service connection for a bilateral foot disorder is warranted. Hyperlipidemia The Veteran asserts that he has a current disability manifested by hyperlipidemia (and elevated cholesterol levels) that is due to disease or injury incurred in service. He also alleges that his hyperlipidemia is aggravating his service-connected hypertension. The record is replete with reference to treatment for and findings referable to hyperlipidemia (and elevated cholesterol levels). However, there is no medical evidence of record that the Veteran's hyperlipidemia (and elevated cholesterol levels) has resulted in actual disability. Hyperlipidemia (and elevated cholesterol levels) is a symptom of other disabilities and not an independent disability for VA purposes. See 61 Fed. Reg. 20440, 20,445 (May 7, 1996); Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that a symptom without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). Pursuant to the February 2011 Board remand, the Veteran was afforded a VA examination in March 2011 to identify and opine as to etiology of any current disability manifested by hyperlipidemia. The examiner diagnosed hypertension without objective clinical evidence for hyperlipidemia. The examiner opined that it was less likely than not that the hyperlipidemia was etiologically related to the Veteran's hypertension. The examiner explained that medical research shows that although hyperlipidemia is a risk factor for heart disease, there were no current findings of heart disease, specifically arteriosclerotic heart disease, or evidence of heart disease in service. Thus, the Board finds that service connection for the claimed hyperlipidemia is simply not warranted. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1131; see also 38 C.F.R. § 3.310. Thus, where, as here, medical evidence does not establish that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, the claim for service connection for hyperlipidemia must be denied, because the first essential criterion for a grant of service connection, evidence of a current disability upon which to predicate a grant of service connection, has not been met. The only evidence of record supporting the Veteran's claim is his various lay assertions. Although the Veteran is competent to provide evidence of visible symptoms, he is not competent to provide evidence that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Veteran, as a layperson, is not qualified to provide a medical diagnosis or competent opinion indicating he has a current disability manifested by hyperlipidemia. Regardless, the Board finds the opinion of the VA examiner in the March 2011 report of VA examination to be most probative. The VA examiner is a medical professional who has reviewed the claims file, considered the reported history and reviewed the claims file. The examiner used their expertise in reviewing the facts of this case and determined that the Veteran did not have a current disability manifested by hyperlipidemia that was due to disease or injury incurred in service. It is clear that the examiner fully understood the basis for the Veteran's claim yet still determined, after reviewing the facts of the case, that there was no evidence of a current disability manifested by hyperlipidemia. The Veteran has not suggested that this examination was performed in an insufficient manner or presented evidence to contradict the opinion of this examiner. For the foregoing reasons, the Board finds that the claim of entitlement to service connection for hyperlipidemia must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a bilateral foot disorder, to include as secondary to the service-connected degenerative disc disease (DDD) of the lumbar spine and left and right lower extremity lumbar radiculopathy associated with the DDD of the lumbar spine (claimed as hurting feet) is granted. Entitlement to service connection for hyperlipidemia is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs