Citation Nr: 1324538 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-48 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder. 2. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1982 to June 1986. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, a videoconference Board hearing was held before a Veterans Law Judge who is no longer with the Board; a transcript of that hearing is included in the claims file. In July 2011 the Board sought an advisory medical opinion in these matters from the Veterans Health Administration (VHA), which was received in September 2011. In January 2012 the Board sought clarification concerning the September 2011 medical opinion, which was received in May 2012. In May 2012, the Veteran was notified that the Veterans Law Judge before whom he had testified was no longer with the Board, and he opted for another hearing before the Veterans Law Judge who would decide his appeal. In July 2012, the Board remanded the matter to schedule the Veteran for a video conference hearing. In May 2013 such hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claim file. FINDINGS OF FACT 1. During service the Veteran was seen for stress fractures of the feet and tendonitis, associated complaints of which eventually resolved with no residual pathology; a chronic bilateral foot disability was not manifested in service; arthritis/gouty arthritis of the feet was not manifested in the Veteran's first postservice year; and the preponderance of the evidence is against a finding that his current bilateral foot disability is related to an event, injury, or disease in service. 2. The Veteran was a parachutist in service; knee complaints diagnosed as patellofemoral syndrome became manifest in service and were noted at separation; it is reasonably shown that the problem has persisted since, (with current diagnoses including degenerative joint disease (DJD). CONCLUSIONS OF LAW 1. Service connection for a bilateral foot disability is not warranted. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Service connection for bilateral knee disability to include DJD is warranted. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. December 2007 and March 2008 letters informed him of the evidence and information necessary to substantiate the claims, the information required of him to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the type of evidence he should submit; they also advised him of effective date and disability rating criteria. The Veteran's service treatment records (STRs) are associated with the record and pertinent postservice treatment records were secured. He was afforded VA examinations in connection with his claims for service connection in March 2008 (feet) and October 2008 (joints). The Board secured a VHA medical opinion (with addendum) in these matters. The Board finds the VHA opinion, with addendum clarification, to be adequate for rating purposes with respect to the foot disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The opinion and examination reports are accompanied by a thorough explanation of rationale, and reflect familiarity with the factual evidence; the opinion also includes discussion of medical principles. He was afforded the opportunity for a videoconference hearing before the undersigned. At that hearing, he was advised of what is still needed to substantiate his claims; his testimony reflects that he is aware of what remains necessary. The Veteran has not identified any pertinent evidence or information that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The Board has reviewed all of the evidence in the appellant's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge. 38 C.F.R. § 3.303(b). Disorders initially diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) . Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's STRs show that on his pre-service medical examination in February 1982, he reported a history of three cracked toes in the right foot in 1981. An August 1982 STR notes his complaints of both feet hurting. On examination, both second metatarsal joints were tender to palpation and there was mild edema. The assessment was stress fractures of both second metatarsals. X-ray examination, however, showed fractures in the third metatarsals. In September 1982 the Veteran was seen with complaints of bilateral foot pain for three days. He was put on a limited-duty profile of no running, marching, or physical training for 72 hours. A medical record shows that three days later, his right foot was back to normal but the left foot still had pain. On evaluation, there was mild edema in the left foot with tenderness on the third metatarsal joint. Pain also was elicited on third digit hyperextension. The assessment was bilateral stress fractures of the third metatarsal joints, right resolved, left symptomatic. His limited profile was continued for one week. In a September 1982 treatment record (one week later) it was noted that left foot pain continued and the right foot pain had increased during any physical training, running, or marching. Both feet were placed in soft casts. The assessment was unresolved stress fractures. The limited profile was extended for another week. An October 1982 treatment record notes complaints of pain in both feet (of one week duration), with a history of bilateral stress fractures of the third metatarsal joints. There was tenderness to palpation at the third metatarsal joint in both feet, and the Veteran was referred to podiatry for follow-up. An October 1982 podiatry clinic record shows that both feet were hurting again. On evaluation, there was discomfort over the third metatarsal joints in both feet. He was given another limited-duty profile, for 12 days. A July 1983 record shows he had warts on his right toe that were treated by freezing with liquid nitrogen. In October 1985, he was seen for complaints of Achilles tendon pain (of four days) that increased with marching. On evaluation there was erythema in both feet and edema in the left foot. The assessment was tendonitis. He was put on a limited profile of no running or marching for 48 hours, and was given a soft shoe. In August 1985, the Veteran was seen with complaints of knee pain of two weeks duration; he indicated that his knees had hurt at times over the past two to three years. No specific injury was reported. In the past two weeks his symptoms had increased, especially at night after the workday. He indicated that prolonged standing and walking might be a cause. On evaluation, the pain was located in the upper suprapatellar region. He stated that the pain was dull without radiation proximally or distally. There was crepitus bilaterally. The assessment was patellofemoral syndrome. In November 1985, the Veteran was seen again complaining that his knees had been hurting for six months during road marches. On physical examination the knees were found to be normal. At discharge from service in June 1986, the Veteran indicated that he had slight knee problems. His feet and lower extremities were normal on clinical evaluation. In September 1996 the Veteran was seen at a private hospital for complaints of severe left foot pain with walking, for the past two days. It was noted that he had a history of bilateral stress fractures. The assessment was "rule out" stress fracture and gout, etc. The diagnosis was gout, left foot. An October 1996 emergency room record notes that the Veteran had pain in the dorsum of the foot the previous day, and treated it with ice and elevation. He had no history of trauma, but he had a similar episode involving his great toe a month and a half earlier and was seen at a private hospital. At that time he was given a tentative diagnosis of gout; his symptoms had resolved with medication. The assessment was acute gout attack in the left foot. In November 1997, the Veteran was seen at a private medical facility for complaints of left knee pain. It was noted that medicine was not helping. A January 2008 letter from a private nurse notes that she had been treating the Veteran for 10 years for debilitating episodes of gout in both feet and legs. It was her finding that many of the auto-immune diseases like gout tend to frequent areas of previous injury, thus leaving the Veteran open for the most frequent and worst cases in his feet and ankles. On March 2008 VA feet examination, the examiner noted that the claims file and medical records were reviewed, and noted the Veteran's history of treatment in service for bilateral foot fractures in September and October 1982. The examiner also noted the post-service episode of gout in the left foot in October 1996, and that in December 2007 the gout had moved from the foot to the knees. The Veteran reported that he sustained stress fractures during basic training, was treated with elastic bands for six to eight weeks, and returned to full duty. He was trained as a parachute jumper, which he did for four years. He did 40 jumps, and ran up to 15 miles a day as needed. As a civilian he initially was a deputy sheriff, and then he owned a business repairing windshields (for the past 10 years). He stated that, through the years, he had experienced minimal pain until he was seen for the attacks of gout in 1982. When there was gout pain, it was in the dorsum of each foot, the area of the previous pain from stress fractures. He had no history of knee injuries, but started having knee pain on one side or the other the year after he was in service. He stated that he still has gout attacks (lasting three to eight days) every four to six weeks,. He did not walk for recreation, but worked on a 22-acre farm, which required substantial walking and lifting. He did not use corrective shoes or orthotics. The assessment was that his history was classic for a diagnosis of gout, in that there was recurrence of pain in the joint. The examiner determined that pain related to his stress fractures would not be episodic, but would be there pretty much on a continuing basis. In June 2009, a private physician noted that the Veteran was referred to him by a private nurse practitioner for chronic gout. The Veteran reported a 12-to-13-year history of gout. He described the first episode of podagra (foot pain generally associated with gout) with several recurrences at the midfoot, arch, and knees. The episodes were migratory, and typically occurred every six to eight weeks. Major episodes might last up to eight days. There were no apparent triggers to these gout attacks. The doctor noted the Veteran's military history that included being a paratrooper, with some repetitive trauma to both lower extremities involving his feet and knees. In addition, he had suffered bilateral stress fractures involving both feet during basic training. The details of the injuries were not available, but the physician noted that the Veteran provided an excellent account. The Veteran denied any particular family history of gout, and reported no history of nephrolithiasis. On physical examination, the knees revealed some mild bony changes with crepitation but no inflammatory features. The feet revealed dorsal midfoot osteophytes that were tender to palpation but without inflammatory features. He also had some mild forefoot degenerative changes at the first metatarsophalangeal joint with a mild hallux valgus deformity, and had early crossover of the left fifth and fourth toes. There were no features of active gout. The impression was the Veteran presented with a convincing history of gout dating back some 12 to 13 years, which was a bit "early". The physician noted that the Veteran had some degenerative changes involving his feet that could be, at least in part, attributable to the repetitive trauma of paratrooping. In addition, he had insufficiency fractures (stress fractures) during his basic training. Lastly, there might be some knee arthritis. The physician reiterated that a component of these logically tied back to wear and tear that he experienced in the military. The doctor said it is also true that gout attacks are more likely to be seen at sites where there was a previous injury or arthritis. Further, he noted that there is a potential connection between the locations of the gout attacks and possibly the frequency. However, he stated that gout is caused by elevated levels of uric acid which are deposited within joints and soft tissues, and that the root of the problem in gout is metabolic in nature, and not related to trauma. The physician noted that it is likely that the Veteran would have had gout whether he had served in the military or not. The physician noted that the repetitive trauma to the Veteran's joints which he suffered in the military might affect the location and frequency of gout attacks. He concluded by stating that he had no further insight into any potential connection and would defer to other providers in this regard. On October 2009 VA joints examination (for the knees), the Veteran reported that he had complained of bilateral knee pain since 1985. He stated that he initially noticed the pain in service (while doing parachute jumps and carrying heavy loads). The pain was located behind the patellas and superiorly. He stated that he also has had gout since service. He related that both knees had a dull ongoing pain behind the kneecaps, and cold weather made the pain worse. Following discharge from service, he has been a deputy sheriff for seven years and was self-employed repairing windshields. The course of his knee pain since its onset had been progressively worse. X-ray examination of the knees showed questionable mild cartilage space loss medially with weight-bearing; bony structures were otherwise normal. The diagnosis was bilateral knee DJD. The examiner noted that, in determining whether the bilateral knee DJD is related to service, STRs and VA treatment records were reviewed (but not private medical records). The examiner found that mild DJD of the knees was less likely as not (less than 50/50 probability) caused by or the result of military service. The examiner noted that the Veteran stated that his knees still hurt (and related the pain to complaints in service which had required a single minor medical visit). He noted that the Veteran had been out of the service for 20-plus years. The examiner found that it was far more likely that the Veteran's mild degenerative joint disease was caused by aging and wear and tear over the years since he got out of the military. He stated that there was no reasonable way to connect military service to his present symptoms. At the August 2010 videoconference hearing the Veteran testified that he sustained stress fractures of the feet in service but still pushed himself to get through jump school. He stated that his drill sergeants were particularly abusive toward his unit, and that he later testified against them during court martial proceedings resulting in the Judge Advocate General filing criminal charges against the drill sergeants. He recalled that he completed approximately 42 to 45 parachute jumps in service and that the wear and tear of extra demands such as carrying heavy loads, etc., took its toll on his knees. He reiterated that he started out in boot camp with problems with his feet (stress fractures) and after paratrooper training he began having problems with his knees. He stated that stress fractures on his feet are noted in STRs starting in August 1982 and continued throughout service. He indicated that he continued to have knee and feet problems after service, for which he took Aleve and Tylenol, elevated his feet, and used ice. When he was not having a gout flare-up, he still had pain in the feet and knees. He stated that he is limited in how long he can stand or walk. The Board sought a VHA medical advisory opinion in these matters. The August 2011 response (with addendum in May 2012) indicates that "It is NOT likely that the Veteran's current foot and knee problems were caused by or aggravated by events in the service." The provider explained that the Veteran's injuries in the service (stress fractures, blisters and ligamentous strains) were self-limiting and responded well to the treatment he received in service, and gradually he returned to duty. She explained that gout, by contrast, is a progressive arthritis that can progress over years to decades into a chronic, debilitating polyarthritis involving any peripheral joint in the body. It is caused by elevated serum urate, very common in Western culture. An acute injury may cause a flare-up of gout, or a gouty attack, but remote injuries or injuries themselves do not cause gout (elevated serum urate). She opined that "It is UNLIKELY that the Veteran's gout was caused by any event in the service." She explained that hyperuricemia is an elevated serum level of urate, and that risk factors included hypertension, metabolic syndrome, obesity, thiazide diuretic, low-dose aspirin, diet and recipients of organ transplants. Men are 3 to 6 times more likely to develop gout than women. Increasing age is related to the onset of gout. Factors that may provoke episodes of acute gout include trauma, surgery, starvation, overindulgence in certain high-purine foods, and ingestion of any medication that raises or lowers serum urate. These factors do not cause gout itself, but rather a flare-up of the disease. Because the Veteran's representative argued that the August 2011 advisory opinion was inadequate in that it did not specifically discuss the Veteran's contention that his claimed bilateral foot and knee disorders were related to repeat trauma from multiple parachute jumps in service, an addendum opinion was sought. The May 2012 addendum by the VHA expert addressed the question "what is the likelihood that the multiple in-service parachute jumps in which the Veteran participated during service (reportedly 42-45 jumps) and/or the wear and tear of carrying heavy ...loads, etc., caused or aggravated his current bilateral knee and/or foot problems, to include consideration of the diagnosis of gout?" The expert noted that although the Veteran had a strenuous job in the service with some degree of repetitive micro-trauma in landing parachute jumps and carrying heavy loads, there is no indication from the medical records that he ever sustained an injury to the knee or foot joint surfaces or their stabilizing ligaments of the severity required to be precursors to joint damage. The fractures that he had, metatarsal stress fractures, do not involve the joint surfaces and, thus, do not cause arthritis; metatarsal stress fractures affect the shafts of the bones which are not involved in arthritis. Patellofemoral syndrome, which refers to pain in the front of the knee, (in the patellofemoral joint), specifically describes joint pain without articular cartilage damage. The Veteran did not injure his menisci. The ligamentous strains sustained did not cause joint instability. Tendonitis does not affect the joint surfaces. Responding to the question - "If the current knee and/or foot problems are associated only with the veteran's gout, please determine whether it is at least as likely as not that the Veteran's gout has been caused by any event in the service, or is such a relationship unlikely?", the consulting expert stated that gout is a metabolic disease which may cause arthritis over time as urate crystals deposit in joints. Gout is not caused by trauma. Once the disease is present, however, trauma may precipitate a gouty attack. There is no evidence from the medical records that the Veteran had gout during his time in the service; thus it is unlikely that his gout or gouty arthritis was caused by an event in the service. At the May 2013 videoconference hearing before the undersigned, the Veteran testified that the stress fractures of his feet in service resulted from a 14-mile road march; a blister covered his foot from the heel to the ball and caused him to walk oddly, and shift the weight to the other foot. He stated that "by the time it was all said and done...[he] had stress fractures" and was seen by doctors several times and they finally admitted that he had stress fractures. He stated that current X-rays show that the affected joints are the same affected joints (general dorsal area of the foot) that involved the stress factor, and the reason he is having "basic gout and arthritis suffering[.]" It is not in dispute that the Veteran now has a bilateral foot disability (diagnosed as gout) and a bilateral knee disability (diagnosed as bilateral knee DJD). Regarding the gout/gouty arthritis in the feet, there is no evidence that such disease was manifested in service. That it became manifest about 10 years postservice is acknowledged by the Veteran's private provider. It is also not in dispute that the Veteran sustained stress fractures of the toes in service, and had an episode of Achilles tendonitis therein. The critical question is one of a nexus between the foot injuries in service and the gout that became manifest postservice. That is a medical question beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). There is conflicting medical evidence on this point: an opinion by a private provider in support of the Veteran's claim, and VA opinions, to include by a VHA expert, against the claim. The 2008 VA examiner's opinion was accompanied by inadequate explanation of rationale and has been deemed lacking in probative value. The opinion is only partially supportive of the Veteran's claim. The provider noted that the anatomical location of an acute gout attack was likely to be a site of arthritis or previous trauma. But he indicated that the cause of gout was metabolic and that it was unrelated to trauma in the feet. While he indicated that the degenerative changes "could" "at least in part" be related to trauma in service, that opinion is stated in speculative terms, and therefore is lacking in probative value. Finally the VHA expert provided a definitive opinion against this claim. First, the expert explained that based on the type of arthritic changes found, the current arthritis in the feet was unrelated to stress fractures in service (as such do not affect the joints). The VHA expert did not dispute that previous arthritis or trauma provides a host area for gout. Discussing the pathogenesis of gout the expert indicated that it would not have been caused or aggravated by trauma in service. The expert cited to various nonservice-related risk factors for gout (among them, age and male gender). The consulting expert expressed familiarity with the history of the Veteran's gout, cited to supporting factual data/clinical findings, addressed the observation by the private provider, and gave a thorough explanation of rationale. The VHA expert's opinion is very probative evidence, and in light of a clear opinion to the contrary, persuasive. Accordingly, the Board finds that the preponderance of the evidence is against this claim. Regarding the claim of service connection for a bilateral knee disability, the Board finds significant initially that the Veteran earned a Parachutist Badge (which denotes completion of jump school and a specified number of jumps). Furthermore, he was seen in service for knee complaints, and bilateral patellofemoral syndrome was diagnosed. It does not escape the Board's attention that a 6-month history of such complaints was noted in service, and that knee complaints were noted at separation. Although clinical evaluation at separation was normal, such finding does not preclude that there may have been some latent knee pathology. The Veteran has reported, including in sworn testimony the Board finds credible, that he had the onset of recurring knee complaints in service that have persisted since (and were initially self-treated with over-the-counter medication). The history of continuity of symptoms is somewhat supported by the occasional postservice clinical notations beginning in the 1990's. The Board is aware of the VHA opinion against this claim. However, the consulting expert does not account for the Veteran's lay accounts of continuity of complaints/symptoms, does not appear to acknowledge the persistent nature of the complaints in service, and does not appear to be fully aware of the extent of trauma to weight-bearing joints to which a parachutist in service would have been subjected. Therefore, that opinion is insufficient to overcome the credible and probative evidence supporting the Veteran's claim. Accordingly, service connection for a bilateral knee disability (to include DJD) is warranted. ORDER Service connection for a bilateral foot disorder is denied. Service connection for a bilateral knee disorder (to include DJD) is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs