Citation Nr: 1313233 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-30 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for bilateral foot disabilities, including arthritis. 2. Entitlement to service connection for residuals of a pelvic fracture, to include a hip disability. 3. Entitlement to service connection for bilateral internal temporomandibular joint (TMJ) derangement. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2002 to May 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Sioux Falls, South Dakota. Jurisdiction was retained by the RO in Fargo, North Dakota. In December 2012, the Board remanded the Veteran's claims for further development. Such development has been completed and associated with the claims file, and these matters are returned to the Board for further review. The issues of entitlement to service connection for residuals of a pelvic fracture, to include a hip disability, and to service connection for internal TMJ derangement 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 preponderance of the evidence is against a finding that the Veteran has a bilateral foot disability, to include arthritis, that is casually or etiologically related to a disease, injury, or incident in service. CONCLUSION OF LAW Bilateral foot disabilities, including arthritis, were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for service connection for a bilateral foot disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a March 2009 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The March 2009 letter informed the Veteran of what information or evidence was needed to support her claim, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The March 2009 notice also explained how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). All of the Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file. The Veteran has not identified any outstanding, relevant treatment records for VA to obtain. In this regard, the Board notes that in December 2012, the Board remanded the Veteran's claims so that, among other things, the Veteran could be provided with another opportunity to identify any outstanding treatment records. Pursuant to the Board's remand directive, in December 2012, the RO sent a letter to the Veteran requesting that she identify any outstanding treatment records relating to her claims, and to that end, provide completed Forms 21-4142 authorizations; the Veteran did not reply. Therefore, the Board finds that there has been substantial compliance with the Board's remand directive, and that the record contains sufficient evidence to make a decision on the Veteran's claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was provided with a VA examination relating to her claim in May 2009. In December 2012, the Board remanded the Veteran's claim for a new VA examination because the May 2009 VA examiner did not provide an etiological opinion. Pursuant to the Board's remand directive, the Veteran was provided with a new VA examination in January 2013. The January 2013 VA examiner reviewed the claims file, interviewed and examined the Veteran, addressed all of the questions posed by the Board in its December 2012 remand, and provided adequate reasoning for his conclusions. Based thereon, the Board finds that there has been substantial compliance with the Board's remand directives, and that the January 2013 VA examination report is sufficient upon which to base a decision with regard to the Veteran's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). 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) (2012). 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 Veteran served on active duty in the Navy from May 2002 to May 2007. She contends that she has a bilateral foot disability, to include arthritis, that is related to service. Specifically, she asserts it is the result of working on the flight deck and walking on cement floors in the hangars. See Claim, February 2009. The Veteran's service treatment records are silent as to any foot problems such as arthritis (although the Board acknowledges that one September 2006 record reflects a diagnosed left hallux ingrown toenail). The first medical evidence of record of any foot problems is reflected in the May 2009 VA examination report. The Veteran denied a history of any trauma to her feet, and reported that she had been told that she walked with a limp and that she had a flat right foot. She reported that on occasion she would get pain in the balls of her feet. She also reported a new pain in the second toe of the right foot. She reported increased discomfort with nonsupportive shoes, and that in service she had tried shoe inserts but they were not helpful. Physical examination revealed a normal gait and posture, no abnormal weightbearing on the Veteran's feet, no pes planus or cavus were noted, and no tenderness with palpation of the feet. Some tenderness in the medial aspect of the second right toe was noted, and some slight erythema to the region. The examiner opined that very mild breakdown of the skin at the nailbed was causing the discomfort. X-rays revealed mild degenerative changes in each first metatarsophlangeal joint with mild hallux valgus bilaterally, greater on the left than right, as well as bilateral talonavicular joints, greater on the right than left. The examiner recorded diagnoses of mild degenerative changes of each first metatarsophlangeal joint with mild hallux valgus on the left, and mild degenerative changes of the bilateral talonavicular joints. The examiner did not, however, provide any etiological opinion. A January 2013 VA examination report reflects that the Veteran reported that she was diagnosed with flat foot at separation from service, and she denied having any other diagnoses relating to her feet or having been treated by any podiatrist in service or after her discharge. She reported that in service, she was not aware of having any foot problems, except that her combat boots were painful and that she would try over-the-counter orthotics and some stretching for relief. She reported that she presently had no pain in her feet or any other symptomatology. She reported working as a nurse, and that her feet did not impact her work. The examiner acknowledged that the May 2009 VA examiner noted that x-rays revealed mild degenerative changes of each first metatarsophlangeal joint with mild hallux valgus on the left, and mild degenerative changes of the bilateral talonavicular joints. The examiner noted that a review of the Veteran's service treatment records revealed no evidence of any diagnosis or treatment for flat feet or any other foot condition. Examination of the Veteran's feet revealed no pain, swelling, calluses (including caused by a flatfoot condition), marked deformity, marked pronation, or any other pertinent objective physical findings. The examiner noted that x-rays revealed small bunion deformities at the first metatarsal phalangeal joints with mild degenerative changes. He emphasized that based on his examination, there was no diagnosis of flat feet, there was no loss of arch, and there was no indication of any other foot deformities on examination. The examiner opined that the Veteran's current foot disorder was less likely as not related to service. The examiner reasoned that there was no indication that the Veteran had been treated for any problems with her feet in service, there was no diagnosis noted on her separation physical, and discomfort of the feet with wearing combat boots was a common occurrence. The examiner added that the Veteran separated from service in 2007 but the mild degenerative changes were not diagnosed until 2009. The Board finds that the opinion of the January 2013 VA examiner is the most probative evidence of record with regard to whether the Veteran has a current bilateral foot disability that is related to service. The January 2013 VA examiner reviewed the claims file, interviewed the Veteran and examined her, and provided a thorough rationale for his conclusions. The Board acknowledges that the Veteran has reported working as a nurse and attending nursing school, and that she therefore has some medical training and experience and may have some level of competency in opining regarding matters involving medical etiology. Even assuming she is competent to render an etiological opinion in this matter, the Board nevertheless finds the medical opinion of the January 2013 VA examiner to be by far more detailed and thorough and, therefore, more probative than the Veteran's general contention that her foot is related to service, including working on a flight deck and walking on cement. The Board notes in this regard that the Veteran herself reported to the January 2013 VA examiner that she presently had no symptomatology, and that she had never sought treatment in service or since service for any foot condition, which facts the Board finds weigh heavily against her claim and credibility on the issue of nexus. While the Board acknowledges that she asserts that she was told at separation from service that she had flat feet, she does not have a current diagnosis of flat feet, such that even if that were true, there may still be no service connection for any flat foot condition. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, in light of the above, the Board finds that a preponderance of the evidence is against granting service connection for bilateral foot disabilities; the benefit of the doubt rule is not for application, as there is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral foot disabilities, including arthritis, is denied. (CONTINUED ON NEXT PAGE) REMAND A. Residuals of a Pelvic Fracture/Hip Disability The Veteran claims that she had a preexisting pelvic fracture injury and hip disability (due to a horse riding accident) that was aggravated by service, including due to boot camp and other physical activity in service. When a preexisting disease or injury is noted on the entrance examination report, 38 U.S.C.A. § 1153 provides that "[a] preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 C.F.R. § 3.306(a) (2012). With regard to veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where a pre-service condition underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2012); Cotant v. Principi, 17 Vet. App. 116, 124, 130 (2003). Temporary or intermittent flare-ups of symptoms of a preexisting condition alone do not constitute sufficient evidence for a non-combat veteran to show increased disability for section 1153 purposes unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346- 47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). As an initial matter, the Board notes that the Veteran's service treatment records include copies of pre-service (June 2001) private hospital records from the North County Regional Hospital reflecting treatment for a fractured pelvis due to a horse bucking her off and landing on her. The Veteran's February 2002 report of medical history (relating to her service entry examination) reflects that she reported the injury and that she had no symptoms from it currently. The physician noted her pre-service history of a pelvic fracture. Clearly, therefore, the Veteran's pre-service pelvic fracture injury was noted on entry. The issue, therefore, is one of whether there was in-service aggravation of the preexisting disability. An October 2004 service treatment record reflects that the Veteran sought treatment for pain in her right hip and in her back. The treating clinician noted evidence of pain with hip flexion. The assessment was hip flexor strain. The remainder of the service treatment records are negative for findings specific to the hip and pelvis. The Veteran was provided with a VA examination in May 2009, which report reflects diagnosed left hip coxa saltans; however, the examiner did not provide an etiological opinion. Therefore, the Board remanded the Veteran's claim in December 2012, so that a new VA examination could be performed and an etiological opinion could be provided. The Veteran was provided with a new VA examination in January 2013. The January 2013 VA examiner recorded a diagnosis of coxa saltans, left, and opined that it was less likely as not that the Veteran preexisting pelvic fracture condition increased in severity as a result of her service. The examiner's reasoning included the fact that the Veteran had not sought any treatment since service and that there were no current symptoms except for popping in her hip. Contrary to this assertion, however, the Board notes that the Veteran did seek post-service treatment for her hip pain, as reflected in a July 2009 VA treatment record. The examiner also noted that there was no definitive diagnosis of the hips; however, the evidence of record documents a diagnosis of coxa saltans of the left hip. Thus, the bases for the opinion are inaccurate, rendering the opinion inadequate for purposes of the appeal. Therefore, the Board finds that a remand is necessary to obtain clarification from the January 2013 VA examiner, after a review of the July 2009 VA treatment record and the diagnosis of record, as to whether the Veteran's preexisting pelvic fracture/hip disability was aggravated by service. B. Internal TMJ Derangement The Veteran also claims that she has internal TMJ derangement that is related to her active service. Specifically, she asserts that it had its onset in service when her jaw "locked up." With regard to the Veteran's service treatment records, an October 2006 service treatment record reflects that she reported that she had experienced jaw pain and stiffness the day before that had since resolved after seeing a private chiropractor. A diagnosis of jaw pain, resolved, was recorded. Post-service, a December 2007 private chiropractic record reflects that the Veteran reported that she had in the past and presently experienced symptoms of jaw pain and that it "pops in and out, jaw locked up and couldn't move it." A diagnosis of left and right TMJ crepitus with abnormal motion upon opening was recorded. The Veteran was provided with a VA examination in May 2009. The May 2009 VA examination report reflects that she reported a history of her jaw locking in service, but that it has not recurred since. She also reported experiencing jaw popping, sometimes accompanied by pain. Examination revealed noticeable joint crepitus/popping bilaterally, and the examiner noted that her joints could be heard popping across the room. A diagnosis of internal derangement of TMJs bilaterally, without loss of function was recorded. The examiner did not, however, provide an etiological opinion. The Board remanded the Veteran's claim in December 2012 so that, among other things, she could be provided with a new VA examination to address whether the Veteran's current jaw disorders were related to her in-service jaw complaints. A January 2013 VA examination report reflects, among other things, that the Veteran reported one episode of locked jaw (in service), without recurrence. She also reported that she had experienced clicking of her jaw since the age of 13. She also reported experiencing intermittent pain. A diagnosis of intermittent anterior displacement of the articular disc with reduction was recorded. The examiner opined that the Veteran's TMJ issues were not caused by or related to service. The examiner reasoned that the Veteran's clicking and popping sounds were not the source of any discomfort reported by her, and that her soft tissue tenderness issues appeared to be muscle and habit related. The examiner further explained, citing a dental journal article, that 33 percent of asymptomatic children and young adults examined had disc displacement, such that not everybody having disc displacements suffers from it, and not every disc displaced is the source of the patient's symptoms. Having carefully considered the January 2013 VA examination report, particularly the Veteran's reported onset of jaw clicking at the age of 13, unfortunately, the Board finds that the January 2013 VA examiner's opinion is not sufficient upon which to base a decision, and a remand is necessary to obtain clarification as to whether the Veteran's anterior displacement of the articular disc preexisted service, and if so, whether it was aggravated by service beyond the natural progress of the disease. See Stegall v. West, 11 Vet. App. 268 (1998). Also, the Board requires clarification as to the relationship between the Veteran's diagnosed anterior displacement of the articular disc and her episode of a locked jaw in service. 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. Ask the same examiner who performed the January 2013 VA examination relating to the Veteran's residuals of a pelvic fracture/hip disability claim (or suitable substitute) to review the entire claims file, including a copy of this remand, and provide an opinion clarifying: a) Whether the Veteran's coxa saltans of the left represents a residual of her pre-service pelvic fracture injury, and if so, whether it is clear and unmistakable that the Veteran's pre-service pelvic fracture injury was aggravated by service (i.e., whether it increased in severity beyond the natural progress of the disease, resulting in the coxa saltans). The examiner must provide the underlying reasons for any opinions provided. 2. Ask the same examiner who performed the January 2013 VA examination relating to the Veteran's claim for internal TMJ derangement (or suitable substitute) to review the entire claims file, including a copy of this remand, and provide an opinion clarifying: a) Whether the Veteran's diagnosed anterior displacement of the articular disc with reduction constitutes a congenital or developmental "defect" or "disease." If it constitutes a congenital "defect,"' whether it was subject to any superimposed disease or injury in service. If it constitutes a congenital "disease," whether it was aggravated by service or whether any increase in disability was due to the natural progression of the disease. b) If it does not constitute a congenital or developmental "defect" or "disease," please opine as to i) whether there is clear and unmistakable evidence that the condition preexisted service. If so, opine as to ii) whether there was any increase in severity during service beyond the natural progression of the disease, or whether there is otherwise clear and unmistakable evidence that the condition was NOT aggravated by service. c) Also please explain the relationship between the Veteran's diagnosed anterior displacement of the articular disc with reduction and her locked jaw in service. The examiner must provide the underlying reasons for any opinions provided. Clear and unmistakable means that it is obvious and manifest. 3. Then, readjudicate the Veteran's claims. If her claims remain denied, she should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. 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). 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). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs