Citation Nr: 1325103	
Decision Date: 08/07/13    Archive Date: 08/13/13

DOCKET NO.  05-38 837A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for bilateral flat feet. 

2.  Entitlement to a higher initial rating for radiculopathy of the right lower extremity, evaluated as 10 percent disabling from November 7, 2011. 

3.  Entitlement to a higher initial rating for radiculopathy of the left lower extremity, evaluated as 10 percent disabling from November 7, 2011. 

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Appellant represented by:	The American Legion



WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel

INTRODUCTION

The Veteran had active service from November 1993 to September 1996 and from February 2003 to July 2003. 

This matter is before the Board of Veterans' Appeals (Board) (in pertinent part) on appeal of a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama that denied service connection for bilateral flat feet.  This service connection issue was most recently before the Board in December 2012 when it was remanded for additional development.

The Veteran testified during a March 2008 hearing at the Montgomery RO.  In October 2010 he testified before the undersigned Veterans Law Judge at a hearing at the Atlanta RO.  Transcripts of both hearings have been associated with the record on appeal.  

Jurisdiction of this case currently resides with the RO in Atlanta, Georgia. 

This matter is also before the Board on appeal of an August 2012 rating decision in which the Appeals Management Center (AMC) granted service connection for radiculopathy of the right and left lower extremities and awarded separate 10 percent disability ratings effective November 7, 2011.  The Veteran appealed the ratings assigned.  These increased rating issues were most recently before the Board in December 2012 when they were remanded for additional development.

In addition, during the course of a claim for increased rating for low back disability, the Veteran reported that his flare-ups of low back pain decreased his concentration at work.  This evidence raised the issue of entitlement to a TDIU.  Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board remanded this issue for additional development in December 2012.  The issue subsequently was adjudicated by the agency of original jurisdiction (AOJ) in a May 2013 Supplemental Statement of the Case.  (The claim for increased rating for low back disability was decided by a December 2012 decision of the Board and is no longer on appeal to the Board.)  

In July 2013, additional evidence [a July 2013 award letter from the Social Security Administration (SSA)] was received.  VA regulations provide that any pertinent evidence submitted by an appellant without waiver of RO consideration must be referred to the RO for review and preparation of a Supplemental Statement of the Case.  38 C.F.R. § 20.1304 (2012).  However, upon review of the additional evidence, the Board finds that it does not relate to or have a bearing on the service connection issue decided herein.  Therefore, the provisions of the regulation do not apply, and the case need not be returned to the RO. 

As noted by the Board in December 2012, in a June 2010 rating decision, the AOJ denied, inter alia, entitlement to service connection for gastroesophageal reflux disease (GERD).  The Veteran was notified of the decision but did not appeal.  As such, the decision is final.  In a November 2012 Written Brief Presentation, the Veteran's representative argued that the denial of the claim for service connection for GERD in June 2010 was the result of clear and unmistakable error (CUE).  In so claiming, the representative argued that the Veteran's GERD was related to medications the Veteran was taking to treat his service-connected chronic low back strain.  In light of this argument, the representative appears to be seeking a reopening of the previously denied and final claim of service connection for GERD.  Likewise, the Veteran seeks service connection for GERD, as secondary to the service-connected low back strain (including medication taken therefore).  The issues of whether there was CUE the June 2010 rating decision which denied the claim for service connection for GERD and entitlement to service connection for GERD, to include on a secondary basis, are once again referred to the AOJ for appropriate action.  
The issue of entitlement to service connection for bilateral flat feet is addressed in the decision below.  The remaining issues on appeal 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.  VA will notify the Veteran if further action on his part is required.


FINDING OF FACT

There is clear and unmistakable evidence the Veteran had pre-existing bilateral flat feet prior to entrance into service in 1992 and that such disability was not permanently aggravated during service beyond its natural progression during either of his periods of active duty. 


CONCLUSION OF LAW

Bilateral flat feet were not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. 

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

Regarding the service connection claim, the Veteran was mailed letters in July 2005 and September 2011 advising him of what the evidence must show and the respective duties of VA and the claimant in obtaining evidence, as well as the appropriate notice with respect to the disability-rating and effective-date elements of the claims.  Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  In this regard, the Board notes that, following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim.  See May 2013 Supplemental Statement of the Case (SSOC).  There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). 
Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records has been completed.  The Veteran's available service treatment records (STRs) are associated with his claims file.  Pertinent post-service treatment records have been associated with the claims file.  He has not identified any outstanding, available evidence, to include medical records, which could be obtained to substantiate the claims.  [Although the record shows the Veteran is presently receiving SSA disability benefits, the basis of the award was that the Veteran was disabled due to obstructive sleep apnea, chronic low back strain, bilateral lower extremity radiculopathy, depression and posttraumatic stress disorder (PTSD).  There is no indication that any evidence associated with that claim is relevant to the issue herein on appeal.]  The Veteran provided testimony at hearing before the RO and the Board.  He was provided the appropriate VA examinations, most recently in February 2013.  

Accordingly, the Board is satisfied that VA has complied with its duties to notify and assist the Veteran. 

II.  Service Connection Claim

      A.  Law and Regulations 

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment (the disease or injury need not be symptomatic, but only noted on entrance, Verdon v. Brown, 8 Vet. App. 529, 534-535 (1996)), or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111. 

A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. 

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  38 C.F.R. § 3.306(b).  The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will also not be considered service connected unless the disease or injury is otherwise aggravated by service.  38 C.F.R. § 3.306(b)(1). 

Intermittent or temporary flare-ups during service of a pre-existing injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened.  Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  Accordingly, "a lasting worsening of the condition"-that is, a worsening that existed not only at the time of separation but one that still exists currently-is required.  Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); Verdon, supra. 

In general, in order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

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). 

      B.  Factual Background and Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

The Veteran first period of active duty service was from November 1993 to September 1996.  At service entrance, a November 1992 report of medical examination reflects the examiner's finding of mild pes planus, asymptomatic.  A July 1996 report of medical examination at the time of separation from service does not identify any foot trouble. 

The Veteran subsequently enlisted in United States Air Force National Guard.  In a February 2000 report of medical history associated with that enlistment, the Veteran reported no foot troubles.  In a February 2000 report of medical examination, the examiner noted that the Veteran had mild pes planus that was asymptomatic.  
The Veteran was subsequently called up and served on active duty from February 2003 to July 2003.  An October 2003 National Guard health questionnaire reflects that the Veteran did not have any problems or symptoms that bothered him, and that he exercised twice a week. 

A May 2004 VA treatment note reflects the Veteran's complaint of pain in both his feet.  He requested modified shoes to wear.  A July 2004 VA podiatry consult report notes that the Veteran reported that he had a back problem which caused him to walk awkwardly and caused his flat feet to hurt.  In a November 2004 National Guard health questionnaire, the Veteran reported he had problems with back spasms, but did not otherwise report problems with his feet.  Subsequent VA medical records reflect the Veteran's treatment for pain in his feet, to include a diagnosis of plantar fasciitis. 

The Veteran submitted an initial claim seeking service connection for bilateral flat feet in May 2005. 

A November 2011 VA disability benefits questionnaire (DBQ) notes that X-ray studies of the Veteran's feet revealed mild pes planus (flat feet) as well as minimal degenerative changes.  The examiner discussed the Veteran's medical history concerning the Veteran's feet and commented that the Veteran's "separation exam from July 2003 was reported to show symptomatic pes planus with orthotics."  She also commented, "There were no treatment records found between February 2003 and July 2003 which showed any worsening symptoms involving the feet or any recurrent visits for worsening pain involving the feet."  The VA examiner ultimately opined that the Veteran's bilateral pes planus was aggravated by his period of active duty from February 2003 to July 2003. 

A May 2012 VA podiatry clinic report notes that the Veteran was seen with complaints of pain and swelling around the arches of both feet.  Examination revealed decreased arch height but no edema.  He was referred for custom orthotics.

Upon review of this claim in December 2012, the Board was unable to locate in the claims file (or VVA file) the July 2003 separation examination with reportedly identified symptomatic pes planus with orthotics referenced by the November 2011 VA examiner.  In this regard, the Board pointed out that, according to the November 2011 VA examiner, the July 2003 examination "was reported to show" symptomatic pes planus with orthotics.  Thus, it was not clear whether the examiner actually reviewed the July 2003 separation examination.  The Board also noted that, if the Veteran did have problems with his feet in July 2003, it would be surprising that he did not report such problems in the above noted October 2003 National Guard health questionnaire.  Therefore, the Board remanded the claim, in part, to obtain an addendum medical opinion. 

A February 2013 flatfoot VA DBQ notes the Veteran's complaints of pes planus that existed prior to service but worsened therein, which the Veteran attributed to running and wearing boots.  Currently, the Veteran complained of pain and intermittent swelling in his feet.  Examination revealed no edema, no calluses and tenderness to palpitation at the heel.  Arch height was decreased on weight-bearing.  Imaging showed arthritis bilaterally.  The diagnosis was bilateral pes planus.  After reviewing the claims file, the examiner clarified that the July 2003 separation examination report was not found in the claims file.  Her statement in November 2011 that the Veteran's "separation exam from July 2003 was reported to show symptomatic pes planus with orthotics" was based on statements made in a February 2010 Informal Hearing Presentation, not on review of an actual STR.  The examiner also opined that the Veteran's mild pes planus predated his entry into military service in 1992 and that it was less likely than not that his pes planus was aggravated or permanently worsened during service.  In this regard, the examiner noted that the Veteran's STRs do not document any foot complaints.

The Veteran has stated and the medical evidence of record shows that the Veteran had pre-existing bilateral pes planus at the time of his entry into service in 1992; however, this disability was not aggravated by service.  Specifically, a November 1992 service entrance examination report notes findings of mild pes planus, asymptomatic.  Moreover, in various statements, including during a February 2013 VA examination, the Veteran reported that his pes planus pre-existed service.  Therefore, the Board does not find that the onset of pes planus was during a period of active duty, but rather prior to active duty. 
During his two periods of active duty service, the Veteran made no complaints related to his pes planus.  Moreover, on examination in February 2000, the Veteran's pes planus was again noted to be mild and asymptomatic.  No separation examination report is of record for the Veteran's service separation in July 2003; however, just a few months later, in October 2003, the Veteran reported that he did not have any problems or symptoms that bothered him, and that he exercised twice a week.  Moreover, the February 2013 VA examiner essentially opined that the Veteran's pes planus pre-existed service and was not permanently aggravated beyond the natural progression of the disease during service.  Reasons and bases for this opinion were provided (as noted above).  [While the same VA examiner provided an opinion in support of aggravation in November 2011, the Board notes that this was not based on the evidence of record, but on statements made by the Veteran's representative.  The examiner revised her opinion based on an accurate review of the STRs in February 2013, and this opinion is not otherwise refuted by any other medical evidence of record.]  

The Veteran himself believes that his current bilateral pes planus was aggravated during his active service.  Among the Veteran's specific contentions are that his symptoms were worse during and after service.  In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation.  Here, however, medical expertise is required to answer the question of whether the Veteran's current pes planus was aggravated by his active service.  The Veteran's lay opinion concerning this matter requiring medical expertise is of no probative value. 

The Board has considered the benefit of the doubt doctrine.  As the November 2011 medical opinion and subsequent 2013 addendum constitute clear and unmistakable evidence that the Veteran had pre-existing pes planus prior to service that was not permanently aggravated during service beyond its natural progression, the preponderance of the evidence is clearly against the Veteran's claim, that doctrine does not apply. Gilbert, 1 Vet. App. 49, 54.  Accordingly, the claim must be denied. 


ORDER

Service connection for bilateral flat feet is denied.


REMAND

Higher Initial Ratings for Radiculopathy of the Lower Extremities

As noted above, in July 2013, the Veteran was awarded disability benefits from the SSA.  In particular, the Veteran was found by the SSA to be disabled, effective from October 21, 2011, due in part to his bilateral lower extremity radiculopathy.  The medical records used in support of the SSA decision have not been obtained and associated with the claims folder.  Such should be accomplished on remand.  Thereafter, any additional evidentiary development suggested by the newly obtained information should be undertaken.

TDIU

Historically, the Veteran submitted a claim for an increased rating for chronic low back strain in February 2004.  This issue was decided by a December 2012 decision of the Board.  However, during the course of this appeal, particularly in a November 2011 VA examination report, the Veteran reasonably raised the issue of entitlement to a TDIU.  Specifically, the Veteran reported that his flare-ups of low back pain decrease his concentration at work.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  This issue was remanded by the Board in December 2012 and then adjudicated by the agency of original jurisdiction in a May 2013 Supplemental Statement of the Case (SSOC).  [In the December 2012 decision, the Board decided the increased rating issue.]  

Subsequent to the Board's remand, the Veteran submitted a December 2012 statement from his former employer that his PTSD rendered him disabled for his position as a patient support assistant, and his disability retirement was approved.  This evidence, along with a November 2011 statement from Ausborn Behavioral Care which references an apparent worsening of the Veteran's psychiatric symptoms and includes a notation that the Veteran was no longer able to work in an employment setting due to his PTSD, raises a claim for increased rating for PTSD.  Although the Board referred this issue to the AOJ for adjudication in December 2012, this issue has not yet been adjudicated.  

As the issue of entitlement to an increased rating for PTSD is inextricably intertwined with the current issue of entitlement to a TDIU, the increased rating issue must be adjudicated prior to the AOJ's consideration of the TDIU issue.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  Moreover, the TDIU issue is inextricably intertwined with the claim seeking higher initial ratings for radiculopathy of the right and left lower extremities; these increased rating issues also must be adjudicated prior to the AOJ's consideration of the TDIU issue.  Id.

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the Veteran's VA claims file copies of the medical records used in support of the July 2013 SSA decision awarding disability benefits to the Veteran.  If any such documents are not available, that fact should be noted in the claims file. 

2.  Any additional evidentiary development suggested by the newly obtained information should be undertaken regarding the claims for higher initial ratings for radiculopathy of the right and left lower extremities. 

3.  After obtaining the appropriate release of information forms where necessary, procure records of recent PTSD treatment.  If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents, should be made in the claims file.  All such available reports should be associated with the claims file.

4.  If and only if any records are obtained, accord the Veteran an appropriate VA examination to determine the current level of severity of his service-connected PTSD, and to address his employability in light of his service-connected disabilities.  The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report.  All indicated tests, should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file.  

All pertinent manifestations of the service-connected PTSD should be annotated in the examination report. 

The examiner should opine as to whether the Veteran's service-connected disabilities, to include PTSD, preclude him from engaging in substantially gainful employment.  Consideration should be given to the November 2011 statement from Ausborn Behavioral Care and the December 2012 statement from the Veteran's former employer.

A complete rationale should be given for all opinions and conclusions expressed.  

5.  Adjudicate the issue of entitlement to an increased rating for PTSD.  The Veteran should be notified of his appellate rights.  This issue should only be returned to the Board if the Veteran perfects a timely appeal of a denial of the claim. 

6.  Then, readjudicate the issues of entitlement to higher initial ratings for radiculopathy of the right and left lower extremities and entitlement to a TDIU.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided an SSOC and given an appropriate opportunity to respond.  The case should then be returned to the Board for further consideration, if otherwise in order.

No action is required of the Veteran until he is notified by the RO or the AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims.  38 C.F.R. § 3.655.  He has the right to submit additional evidence and argument on the matters that the Board has remanded.  See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs