Citation Nr: 1322571 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-21 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bilateral ankle disorder. 2. Entitlement to an initial rating higher than 10 percent for degenerative arthritis of the cervical spine. 3. Entitlement to an initial rating higher than 10 percent for right plantar fasciitis. 4. Entitlement to an initial rating higher than 10 percent for left plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran served on active duty from January 1987 to August 2007. This appeal to the Board of Veterans' Appeals (Board) is from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony in support of his claim of entitlement to service connection for a bilateral ankle disorder at a November 2012 videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. But well prior to that, in January 2008, he had submitted a Notice of Disagreement (NOD) concerning the initial 0 percent, i.e., noncompensable ratings assigned for the service-connected degenerative arthritis of his cervical spine and bilateral (right and left foot) plantar fasciitis. See 38 C.F.R. § 20.200 (2012) (providing, in pertinent part, that an appeal to the Board is initiated with the filing of a timely NOD in writing); see also 38 C.F.R. §§ 20.201 (2011) (setting forth required content of the NOD); 20.302(a) (2011) (setting forth time limits for submitting an NOD). In response to that NOD, the RO issued a May 2008 decision granting a higher 10 percent rating for the degenerative arthritis of his cervical spine and a May 2009 decision granting higher, and separate, 10 percent ratings for the plantar fasciitis of each foot. Nevertheless, because the higher ratings assigned for these disabilities are not the maximum possible ratings, and the Veteran has not indicated he is content with the ratings he received, even though greater than the ratings he had, the question remains as to whether he is entitled to even higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). Accordingly, he must be provided a Statement of the Case (SOC) concerning these claims. See 38 C.F.R. §§ 19.26, 19.29, 19.30 (2012). For this reason, the Board is remanding these claims to the RO via the Appeals Management Center (AMC). He then will have opportunity, in response to this SOC, to also file a timely Substantive Appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of these additional claims to the Board. 38 C.F.R. § 20.200 (2012). More recently, in November 2012, he submitted a claim for sleep disturbance and insomnia. This claim has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction to consider this additional claim so is referring it to the RO for appropriate development and consideration. This appeal was processed using the "Virtual VA" paperless claims processing system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. VA also is in the process of transitioning to an entirely new electronic medium - the Veterans Benefits Management System (VBMS). Use of this newer system reportedly will allow for even greater leveraging of information technology to allow for even quicker decisions on claims. FINDING OF FACT A bilateral ankle disorder, diagnosed as ankle equinus and instability of the ankles, first manifested during the Veteran's active military service and has continued to be diagnosed during the pendency of this claim, which was submitted shortly after his retirement from service. CONCLUSION OF LAW His bilateral ankle disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In deciding this claim, the Board has reviewed all of the evidence of record and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. This is especially true when, as here, the claim is being granted rather than denied. The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has distinguished two evidentiary requirements for establishing entitlement to service connection depending on the type of disorder being claimed. For any disorder not defined by VA as a "chronic disease," the Federal Circuit Court held that a three-element test must be satisfied under subsection 3.303(a) of the regulations in order to establish entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Id. However, claims for chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from somewhat more relaxed evidentiary requirements under subsection 3.303(b). See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases"). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Walker, 708 F.3d at 1338-1339. Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases. Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease"). A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. at 1338. In other words, while a current disability must always be established in any service connection claim, the evidence required to show that the disability was incurred in or aggravated by active service differs according to whether the disability is defined as a chronic disease. If the disability in question is not defined as a chronic disease, then a "medical nexus" between active service and the claimed disability must be established under the three-part test set forth in Shedden discussed above. If the claimed disability is considered a chronic disease, then a relationship to service may be established by a chronicity in service or a continuity of symptoms after service, which is a less demanding evidentiary showing. See id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits. Id. The Veteran has been diagnosed with bilateral ankle equinus and instability since 2006, while he was still on active duty, and during the pendency of this claim. Specifically, his service treatment records (STRs) show that in September 2006 he presented with bilateral leg and foot cramping. He was diagnosed with pes planus and an "increased Q angle" to the ankles. A November 2006 physical therapy record reflects that on examination his ankle motion was "extremely limited" bilaterally. A podiatrist diagnosed "ankle equinus" in December 2006. Physical therapy records dated in December 2006 show that on examination the Veteran had stiffness of the ankles and lack of motion. The physical therapist stated that the Veteran's ankle motion was so limited that it was surprising he could walk at all over rough terrain. He was prescribed orthotics. A January 2007 physical therapy record states that he had "functional motion" of the ankles but poor ankle control and 4/5 strength. After retiring from service in August 2007, the Veteran continued to receive treatment by a podiatrist at the same Air Force clinic for his ankle problems, and was again diagnosed with equinus and instability of the ankles after he submitted the present claim in October 2007. Specifically, a December 2007 podiatry record reflects that weight-bearing position tests of the talar heads showed medial bulges of both ankles. The podiatrist further noted that the Veteran's ankle motion was abnormal, with weakness on dorsiflexion and bilateral crepitus. The podiatrist also observed that the Veteran's flat feet were affecting his ankles and muscles. A January 2008 podiatry record notes tenderness on palpation of the ankles, as well as bilateral pain and crepitus on ankle joint range of motion. The podiatrist rendered diagnoses of equinus and joint instability of the ankles, as well as flat feet. A lace-up ankle brace was prescribed. Podiatry records from the Air Force clinic dated in February and March 2008 again show a diagnosis of "acquired" equinus. A July 2007 VA examination report reflects a general foot examination and X-rays of the foot, but does not reflect findings specifically referable to the ankles. A June 2008 VA examination report shows the examiner reviewed the VA treatment records, as well as some of the records from the Air Force clinic discussed above, which the Veteran had brought in for the examiner's review, and examined the Veteran personally. The examination included performing stability testing and obtaining an X-ray of the ankles. The examiner concluded the Veteran did not have pathology of either ankle. The examiner explained that the examination of the ankles was normal, including with regards to stability. Range of motion testing was also normal. The examiner acknowledged the diagnosis of instability of the ankles in the Air Force clinic records, but surmised the diagnosis did not appear to be based on actual instability testing. He also noted that the Veteran's ankle pain was attributed to the use of orthotics in a December 2007 STR. However, the Board notes that, as discussed above, the Air Force podiatrist did indeed examine the Veteran's ankles and perform "weight-bearing position tests," which showed medial bulges of both ankles. Moreover, it can be assumed that the Air Force podiatrist otherwise examined the Veteran's ankles and feet, including with regards to stability. For example, the podiatrist noted crepitus and pain on range of motion testing. Thus, the VA examiner's suggestion that the diagnoses of ankle instability were not based on objective findings is inaccurate. Indeed, the June 2008 VA examiner did not have all of the Veteran's STRs pertaining to his ankles available for review, only the scant few that were brought by the Veteran himself to the examination, and so did not have an opportunity to better assess the provenance of this diagnosis. The Board may favor the opinion of one competent medical expert over that of another, if an adequate statement of reasons or bases is furnished. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"). Here, the Board accords more probative weight to the Air Force clinic records, both during and after the Veteran's military career, than to the VA examination reports. In this regard, the former represent a longitudinal assessment of the Veteran's feet and ankles over several years, including multiple examinations by a podiatrist. The VA examination reports, by contrast, were only based upon a one-time examination of the Veteran's ankles. Moreover, as a specialist in foot and ankle disorders, the Air Force podiatrist possesses greater expertise in the relevant medical area than the VA examiner, who is not such a specialist. Thus, the Air Force clinic records, reflecting diagnoses of equinus and instability of the ankle joints, with objective findings of pain and crepitus, have more probative value and carry more weight than the VA examination reports. See Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (holding that in evaluating the probative value of medical opinion evidence, the medical expert's personal examination of the Veteran, the physician's knowledge and skill in analyzing the data, and the medical opinion that the physician reaches should be taken into consideration); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). To the extent there is any remaining doubt on the issue of whether the Veteran has had objective pathology of the ankles during the pendency of this claim, it is resolved in his favor. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Finally, insofar as whether the Veteran's ankle disorders had resolved by the time of the June 2008 VA examination report, the probative evidence shows diagnoses of ankle disorders based on objective findings during the pendency of this claim, as shown in the Air Force clinic treatment records discussed above. In this regard, the Veteran's claim for bilateral ankle disorders was submitted in October 2007 - per the July 2008 rating decision - and there are diagnoses of ankle instability, weakness, pain and equinus in December 2007, January 2008, February 2008, and March 2008, all of which were after submission of this claim. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the current disability requirement in a service connection claim is satisfied when a disability is shown at the time a claim for VA disability compensation is filed or during the pendency of that claim, and thus service connection may be granted even though the disability resolves prior to adjudication of the claim. Thus, the current disability requirement is satisfied. See Shedden, 381 F.3d at 1166-67; Walker, 708 F.3d at 1338-1339; see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In sum, the evidence shows that a disability of the ankles diagnosed as ankle joint instability and equinus first manifested during active service and has been continuously present since that time and through the pendency of this claim. Thus, the second and third Shedden elements are also satisfied. Shedden, 381 F.3d at 1166-67. Accordingly, the evidence is at least in equipoise. Consequently, the benefit-of-the-doubt rule applies, and service connection for a bilateral ankle disorder is granted. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Because the Veteran's claim of entitlement to service connection for a bilateral ankle disorder is being granted, the Board need not discuss whether there has been compliance with VA's duties to notify and assist the Veteran with this claim under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). This is because even were the Board to assume for the sake of argument there has not been this compliance, this could only at most amount to nonprejudicial, i.e., harmless error since the claim is ultimately being granted, regardless. Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009). See also 38 C.F.R. § 20.1102 (2012). ORDER The claim of entitlement to service connection for a bilateral ankle disorder is granted. REMAND As already explained, the Veteran submitted a January 2008 NOD contesting the initial noncompensable ratings assigned for the service-connected arthritis of his cervical spine and bilateral plantar fasciitis in a September 2007 rating decision. Although higher 10 percent ratings subsequently were granted in rating decisions dated in May 2008 and May 2009, these higher ratings do not abrogate the Veteran's appeal of these claims absent a communication from him indicating he is satisfied with these evaluations. See AB, 6 Vet. App. at 38-39. Accordingly, the appeal of the initial 10 percent evaluations assigned the Veteran's service-connected degenerative arthritis of the cervical spine and bilateral plantar fasciitis must be remanded so the RO/AMC may provide him an SOC concerning these claims. See 38 C.F.R. §§ 19.26(d), 19.29, 19.30 (2012); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16- 92). However, after issuance of the SOC and in response to it, he must complete the steps necessary to perfect his appeal of these claims by also filing a timely substantive appeal (VA Form 9 or equivalent statement). See 38 C.F.R. §§ 20.200, 20.202, 20.302, etc. (2012); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, these claims are REMANDED for the following action: Provide the Veteran an SOC addressing the issues of whether he is entitled to even higher ratings, meaning even higher than 10 percent, for the degenerative arthritis of his cervical spine and bilateral plantar fasciitis. Inform him that he still has to file a timely substantive appeal (VA Form 9 or equivalent statement) in response to this SOC to complete the steps necessary to perfect his appeal of these additional claims to the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b), etc. Only if he perfects his appeal of these additional claims should they be certified to the Board. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs