Citation Nr: 1316831 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-17 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for a right foot disability, claimed as numbness, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to November 1986 and from September 1993 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Salt Lake City, Utah (RO). Jurisdiction rests with the RO in Anchorage, Alaska, from which the appeal was certified. The Veteran testified in a May 2008 hearing before the Board, sitting at the RO. Because the Veterans Law Judge who conducted the hearing has since retired from the Board, a March 2011 letter notified the Veteran that he was entitled to have a hearing with the judge who would ultimately decide his claim. However, because no response to this letter was received, the Board finds that the Veteran has elected to forego an additional Board hearing. In its December 2009 Remand, the Board found that the issue of entitlement to a separate compensable rating for a neurological disability secondary to the Veteran's service-connected low back disability was raised by the record, and remanded the claim to the RO for consideration as an issue intertwined with the issue of entitlement to service connection for a right foot disability. The Board finds that the issue of entitlement to a separate compensable rating for a neurological disability is encompassed within the claim for entitlement to service connection for a right foot disability, and that the grant of entitlement to service connection for a right foot disability awarded herein accounts for the claim of entitlement to service connection for a separate compensable rating for a neurological disability. Further, the Board is granting the Veteran's claim for service connection for a right foot disability on a direct basis, and not as secondary to a service-connected low back disability, as the medical evidence currently of record does not establish that his right foot disability is secondary to his service-connected low back disability. Accordingly, because the evidence does not link the Veteran's right foot disability to his service-connected low back disability, there is no prejudice to the Veteran. Moreover, as the issue over which the Board currently has jurisdiction is entitlement to service connection for a right foot disability, the Board may not address the appropriate rating to be assigned for the Veteran's right foot neurological symptoms. As the Veteran's claim for service connection is granted herein, his claim will be returned to the RO to determine the appropriate evaluation for his service-connected right foot disability. FINDINGS OF FACT 1. The evidence of record reflects current diagnoses of neuropathy in the right foot. 2. The service treatment records show diagnoses of and treatment for right foot neuropathy. 3. The objective medical evidence of record reflects regular complaints of and treatment for neuropathy since the Veteran's discharge from active duty service, and the Veteran has provided competent and credible testimony that he has experienced right foot numbness since active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right foot disability have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303(a), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied with regard to the Veteran's claim for entitlement to service connection for a right foot disability, the Board is not precluded from adjudicating that issue. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). This is so because the Board is taking action favorable to the Veteran by granting entitlement to service connection for a right foot disability. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). The Veteran contends that he has a right foot disability which is related to his active duty service, or to his service-connected low back disability. During a May 2008 hearing before the Board, the Veteran testified that he began experiencing right foot numbness in 2004, and that he has had right foot numbness since that time. He described various accidents, including falls, since that time due to his right foot numbness. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's service treatment records reflect complaints of and treatment for right foot numbness during service. A June 1991 examination indicates that the Veteran's feet were normal. In a report of medical history, completed at that time, the Veteran denied a history of foot trouble, neuritis, and paralysis. A September 1993 examination reflects that the feet were normal. In a report of medical history, completed at that time, the Veteran denied a history of foot trouble as well as neuritis and paralysis. An April 1999 examination reveals that the feet were normal with the exception of a finding of pes planus. In a report of medical history, completed at that time, the Veteran denied a history of foot trouble and nerve injury. A May 2000 treatment record reflects complaints of low back pain with radicular symptoms. A May 2001 treatment record reveals that the Veteran reported right lower extremity radicular pain with pins and needles and sharpness. A June 2004 examination indicates that the feet were normal. In a report of medical history, completed at that time, the Veteran denied a history of foot trouble as well as numbness or tingling. An October 2004 treatment record reveals the Veteran's complaints of constant right foot numbness in the heel for the prior one and a half weeks. The Veteran reported that the numbness was located on the lateral side of his foot, towards the heel. There were no skin changes and there was no pain. He denied a history of trauma. The diagnosis was neuropathy in the sural nerve distribution. An October 2004 X-ray of the right ankle revealed degenerative changes of the tibiotalar and talocalcaneal joints, plantar calcaneal spur, and calcification on the tibial side of the insertion of the syndesmosis. Private treatment records from May 2005 note the Veteran's complaints of right foot numbness. The Veteran reported back pain since August 2004 with referred pain in the right foot, laterally. The diagnosis was lumbar degenerative disc disease. VA treatment records from June 2005 reveal that the Veteran complained of low back pain with persistent numbness in the right foot. Physical examination revealed 1/4 deep tendon reflexes in the knee and ankles and 5/5 strength with normal heel and toe walk. There was subjective decreased sensation to the lateral right foot. The diagnosis was chronic low back pain with known degenerative disc disease. In October 2005, the Veteran underwent a VA general medical examination. The Veteran reported numbness in his right foot, which he believed to be related to degenerative disc disease and nerve compression in the L5-S1 level with dorsal and lateral foot numbness. He also noted pain in the right foot and ankle. Examination demonstrated painful motion and X-rays were positive for degenerative joint disease of the right ankle with primary degenerative changes of the tibiotalar and talocalcaneal joints. Neurological examination showed that deep tendon reflexes were absent in the right ankle. Sensory examination was intact to light touch. Heel and toe and tandem gait were normal with pain on toe walk. Straight leg raising was negative to 90 degrees, bilaterally, with negative sciatic stretch. The diagnosis was no loss of sensory noted on examination, i.e., no numbness reported or found of feet or ankles. A February 2006 VA treatment record reflects that the Veteran complained of low back pain into his legs and feet. A February 2006 VA treatment record notes that a non-VA EMG report was scanned in, and to see Vista Imaging for an image of the report. An April 2006 treatment record notes that there was evidence of polyneuropathy. In August 2006, the Veteran complained of right lateral foot numbness. Neurological examination showed that the protective threshold was absent along the S1 distribution of the right foot. Deep tendon reflexes were +2/4. There was mild pes planus, bilaterally, and there was tenderness along the anterior talofibular (ATF) ligament, consistent with a grade 1 sprain. There was bilateral media malleolar tenderness along the spurs. Ankle dorsiflexion and plantar flexion were within normal limits. Gait appeared to be propulsive. The treatment record notes that a March 2006 EMG showed axonal polyneuropathy, and that X-rays revealed bilateral degenerative joint disease with spurring of the malleolus. The diagnosis was probable right S1 neuropathy/radiculopathy. May 2007 VA X-rays of the bilateral feet showed a 5 by 10 millimeter bone fragment in close proximity to the superior aspect of the distal right talus; a 3 by 6 millimeter osteocartilaginous element in the soft tissues adjacent to the articulation of the right calcaneus and cuboid; and tiny enthesophytes of each calcaneus at the insertion of the plantar aponeurosis. A December 2008 VA treatment record indicates that a non-VA EMG report was scanned in to Vista Imaging. Another December 2008 record notes that the EMG report was reviewed, but that it was incomplete. The physician recommended repeating parts of the study, but the Veteran declined. The Veteran underwent another VA examination in May 2009. The Veteran reported that his right foot symptoms started in 2004. The Veteran complained of right foot numbness to the lateral and dorsal aspect of the right foot. He described the numbness as constant, and extending to his fifth, fourth, and third toes. The Veteran denied any specific trauma or surgical intervention to the area. The examiner noted that the Veteran underwent a nerve conduction study and electromyography in 2006, but he was unable to complete the study due to pain. However, the results of the testing that was completed showed muscle membrane instability of the right foot suggesting peripheral neuropathy. A second attempt to complete the NCV/EMG studies was made in December 2008, but again, the Veteran was unable to complete the testing due to pain. The 2008 report stated that the partial results obtained were normal. The Veteran declined further attempts to reschedule the studies. Physical examination of the right foot showed no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight bearing. Posture was effective and ambulation was functional and effective with good balance, coordination, rotation, and heel stride. Weight transfer was with a lean to the right, and the Veteran ambulated without assistive devices. The diagnosis was right foot neuropathy of unknown etiology. The examiner concluded that, in the absence of results from NCV/EMG studies, she was unable to render an opinion as to the etiology of the Veteran's right foot neuropathy without resorting to mere speculation. In February 2010, the Veteran underwent another VA feet examination by the same examiner who provided the May 2009 examination. She noted that, earlier that month, the Veteran attended a neurology clinic to complete an EMG/NCV study, and that the test was partially completed. The report of the partial study showed that the Veteran refused to have any EMG study done, but that H-reflex testing was completed, and the results were normal. After reviewing this new evidence as well as the other evidence of record described in her May 2009 opinion, the VA examiner concluded that she was unable to render a diagnosis or a medical opinion due to a lack of evidence and the Veteran's refusal to complete necessary studies. She noted that the Veteran had a long history of scheduling EMG/NCV studies and only allowing partial completion of the studies or refusing all components of the study, and that the only studies that were partially completed were reported as essentially normal. She indicated that the Veteran reported symptoms of numbness of the lateral and dorsal aspect of the right foot. In April 2010, the Veteran underwent a VA spine examination. He complained of lumbosacral radiculopathy, described as pain going down both legs with numbness into his feet. He denied urinary incontinence, urgency, retention requiring cathertization, frequency, and nocturia. He reported mild fecal incontinence, described as occasional leakage. He also reported erectile dysfunction, numbness, and paresthesias. The Veteran denied obstipation, leg or foot weakness, falls, and unsteadiness. The examiner noted that numbness and paresthesia were secondary to degenerative disc disease of L5-S1, but in the wrong distribution for dermatomes. Physical examination of the spine was conducted. The examiner diagnosed degenerative disc disease and degenerative joint disease of the lumbosacral spine with no objective findings of radiculopathy, noting that a previously attempted EMG study which was incomplete found no radiculopathy as well. After thorough consideration of the evidence of record, the Board concludes that service connection for right foot neuropathy is warranted. There is a current diagnosis of right foot neuropathy. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Additionally, the Veteran's service treatment records show in-service complaints of and treatment for right foot neuropathy. Thus, there is evidence of in-service incurrence of right foot neuropathy. Although VA attempted to obtain a nexus opinion with regard to the Veteran's right foot neuropathy, the VA examiner in May 2009 and February 2010 was unable to render an opinion without resorting to mere speculation due to the Veteran's inability to complete necessary NCV/EMG studies. Because the VA examiner could not provide an opinion without resorting to speculation, the opinion is essentially non-evidence, as it does not provide a "yes" or "no" answer. Perman v. Brown, 5 Vet. App. 237, 241 (1993) (finding that an opinion that did not provide a yes or no opinion constituted non-evidence in support of service connection). Thus, the Board does not afford those opinions significant probative value. The Board acknowledges the arguments made by the Veteran and his representative during the May 2008 Board hearing that the Veteran began experiencing right foot numbness in 2004, during service, and has consistently experienced right foot numbness since that time. Neuropathy is not listed among the diseases recognized by VA as chronic in 38 C.F.R. § 3.309(a). Thus, continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to the Veteran's claim, and entitlement to service connection cannot be awarded on this basis. See Walker, 708 F.3d 1131. Nevertheless, a veteran's lay statements may be sufficient evidence to establish entitlement to service connection in any claim. See 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks service connection[,] must be considered on the basis of . . . all pertinent medical and lay evidence."; see also 38 U.S.C.A. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). In this case, there is in-service evidence of right foot neuropathy beginning in 2004. The medical evidence of record also shows that the Veteran sought treatment for right foot numbness as early as May 2005, less than one year after service discharge, and consistently since that time. With consideration of the medical evidence showing a diagnosis of and treatment for right foot neuropathy during service and persistent diagnoses of and treatment for right foot neuropathy since that time, along with the Veteran's lay statements that his symptoms began during service and have continued regularly since that time, the Board affords the Veteran the benefit of the doubt, and concludes that his current right foot neuropathy is related to his in-service right foot neuropathy. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Accordingly, entitlement to service connection for right foot neuropathy is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for right foot neuropathy is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs