Citation Nr: 1326406 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 08-21 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for tension headaches. 4. Entitlement to service connection for a sleep disorder, to include as secondary to the lumbar spine disorder and cervical spine disorder. 5. Entitlement to service connection for numbness and tingling, to include neuropathy and radiculopathy, of the bilateral upper extremities, and to include as secondary to the cervical spine disorder. 6. Entitlement to service connection for nerve damage with numbness, to include neuropathy and radiculopathy, of the bilateral lower extremities and the feet, and to include as secondary to the lumbar spine disorder and secondary to the service-connected plantar fasciitis of the bilateral feet. 7. Entitlement to an increased rating for plantar fasciitis of the right foot, currently evaluated as 10 percent disabling. 8. Entitlement to an increased rating for plantar fasciitis of the left foot, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2003 to September 2004. The Veteran's service connection claims come before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. The Veteran then perfected timely appeals of these issues. The Veteran's increased rating claims come before the Board on appeal from a July 2009 rating decision of the RO in New Orleans, Louisiana, which denied the benefits sought on appeal. The Veteran then perfected timely appeals of these issues. In September 2012, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a videoconference hearing held at the local RO. A copy of the hearing transcript has been associated with the claims file. The RO certified this appeal to the Board in August 2009. Subsequently, the Veteran submitted additional medical evidence. However, she waived her right to have the RO initially consider this evidence in a statement dated in October 2012. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Veteran's Virtual VA records were also reviewed and considered in preparing this decision and remand. Finally, the Board notes that the issues of entitlement to service connection for a cervical spine disorder and entitlement to service connection for numbness and tingling, to include neuropathy and radiculopathy, of the bilateral upper extremities, were previously addressed as one issue. However, since the Board is granting service connection for a cervical spine disorder in this decision, the Board has split the appeal into two issues and recharacterized the issues as shown on the title page. The issues of: (1) entitlement to service connection for a sleep disorder, to include as secondary to the lumbar spine disorder and cervical spine disorder; (2) entitlement to service connection for numbness and tingling, to include neuropathy and radiculopathy, of the bilateral upper extremities, and to include as secondary to the cervical spine disorder; (3) entitlement to service connection for nerve damage with numbness, to include neuropathy and radiculopathy, of the bilateral lower extremities and the feet, and to include as secondary to the lumbar spine disorder and secondary to the service-connected plantar fasciitis of the bilateral feet; (4) entitlement to an increased rating for the plantar fasciitis of the right foot, currently evaluated as 10 percent disabling; and, (5) entitlement to an increased rating for the plantar fasciitis of the left foot, currently evaluated as 10 percent disabling, 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. FINDINGS OF FACT 1. The Veteran's current lumbar spine disorder is shown to be etiologically related to her active military service. 2. The Veteran's current cervical spine disorder is shown to be etiologically related to her active military service. 3. The Veteran's current tension headaches are shown to be etiologically related to her active military service. CONCLUSIONS OF LAW 1. Service connection for a lumbar spine disorder is established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. Service connection for a cervical spine disorder is established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 3. Service connection for tension headaches is established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the Board is granting the service connection claims for lumbar spine disorder, cervical spine disorder, and headaches. Thus, there is no prejudice to the Veteran and no further discussion of the VCAA is required. II. Service Connection A. General Regulations and Statutes Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis, including degenerative joint disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Regarding the cervical spine and lumbar spine claims (in which the Veteran has current diagnoses of degenerative joint disease) only, service connection may be awarded for a "chronic" disorder when: (1) a chronic disorder manifests itself and is identified as such during the active military service (or within the presumption period under 38 C.F.R. § 3.307, and the Veteran presently has the same disorder); or (2) a disorder manifests itself during the active military service (or during the presumptive period), but is not identified until later, there is a showing of continuity of symptomatology after the military discharge, and medical evidence relates the symptomatology to the Veteran's present disorder. 38 C.F.R. § 3.303; see Walker v. Shinseki, 708 F.3d 1331 (the theory of continuity of symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). For the showing of chronic disease during the active military service, there is a required 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." 38 C.F.R. § 3.303(b). If a chronic disease is shown during the active military 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). However, continuity of symptoms is required where a disorder is noted during the active military service, but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1331. The claimant bears the burden of presenting and supporting her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. As noted above, the first element of service connection requires medical evidence of a current disorder. Here, current diagnoses have been established. Regarding the lumbar spine disorder, in May 2008, the Veteran was diagnosed by the VA Medical Center (VAMC) with lumbago. In June 2009, the Veteran was diagnosed with degenerative joint disease of the back by the VAMC. In September 2012, the Veteran's private physician found that the Veteran had lower back disc injuries, based on a magnetic resonance imaging (MRI) scan. Regarding the cervical spine disorder, in November 2005, the Veteran was diagnosed by the VAMC with degenerative spondylosis of the cervical spine based on an X-ray. In June 2009, the Veteran was diagnosed with degenerative joint disease of the cervical spine by the VAMC. In September 2012, the Veteran's private physician diagnosed her with "neck disc injuries" based on an MRI scan. Regarding the headaches, the Veteran was diagnosed with muscle tension headaches at the December 2004 VA examination. The Veteran was also diagnosed with persistent occipital headaches by a private physician in September 2012. Thus, the Veteran has satisfied the first element of service connection for each of these claims. As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran's service treatment records (STRs) show that she entered the active duty in September 2003 without any back, neck, or head injuries or complaints. At her Board hearing, the Veteran testified that her headaches began during her active military service due to the stress of the military. In October 2003, the Veteran's STRs document a complaint of headaches. Furthermore, at her Board hearing, the Veteran testified that these incidents were due to a November 2003 in-service injury. The Veteran stated that she was involved in a hand-to-hand combat training with a fellow male solider, when the male solider tossed the Veteran off of him. The Veteran fell with her neck overextended. She reported that when she got up, she immediately felt as though she had a pulled muscle. The Veteran testified that she sought treatment from the sick call. The Veteran testified that her current lumbar spine disorder, cervical spine disorder, and headaches were due to this November 2003 injury. In this regard, the Veteran's STRs document that, in November 2003, the Veteran was seen by sick call for a sprained back muscle precipitated by hand arm combat training. Following this injury, the Veteran was subsequently treated in May 2004 on two occasions for a back ache. In May 2004, the STRs contain a sick slip for the "back" with no further information provided. In July 2004, the Veteran was seen for back pain spasms. The Veteran's active military service ended in September 2004. Thus, the second element of service connection has been satisfied. Post-service, in an August 2005 VA treatment record, the Veteran complained of pain in her neck since her basic training injury. Additionally, in a May 2006 letter, M.T., PA-C, stated that he treated the Veteran in-service on two occasions in May 2004 for an acute non-traumatic low back. In a September 2006 letter, S.W., FNP, reported that the Veteran was being currently treated by her, and noted the Veteran's report of sustaining an in-service injury during hand-to-hand combat with an injury to her neck after being thrown to the ground. The Veteran reported that her neck became overextended with persistent neck pain and daily headaches following the in-service injury. Further, in an August 2012 lay statement, J.H., a retired Lieutenant Colonel who recruited the Veteran into the military, stated that, in 2003, the Veteran began to complain to him of back pain, neck pain, and headaches. During subsequent conversations, the Veteran told him that she did not feel well due to an injury sustained during basic training. Since her discharge, the Colonel indicated that he had witnessed the Veteran struggle with back pain, muscle fatigue, neck pain, and back pain. J.H. reported that post-service the Veteran has not been involved in any major car accidents, nor has she sustained any other injuries from a private sector job. The Colonel added that the Veteran was honest and a person of strong ethical and moral character. As previously mentioned, the third element of service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury. Here, the only medical nexus opinion of record is positive. In this regard, in a September 2012 letter, the Veteran's treating private physician noted that he reviewed the Veteran's medical records from November 2003. The physician also indicated that he had been treating the Veteran since October 1996 - before, during, and after her active military service. The physician then concluded that the Veteran's current lumbar spine disorder, cervical spine disorder, and headaches "probably" resulted from injuries sustained in combat training in army service training. The physician added that the Veteran's injuries sustained in November 2003 had persisted to the present. The Board finds this private medical opinion to be both competent and credible, as the physician has been the Veteran's treating physician for almost twenty years and as the physician reviewed the Veteran's STRs in forming his medical opinion. The treatment records do not provide contrary evidence. To date, the Veteran has not been afforded VA medical opinions for these claims; however, the Board finds that based on the evidence already of record, a VA medical opinion is not necessary. In summary, the only medical nexus opinion of record is positive concerning the Veteran's current lumbar spine disorder, cervical spine disorder, and headaches. There are no contrary medical opinions in the claims file. The lay statements, along with the VA and private treatment records and letters, support the private medical nexus opinion. Accordingly, given the STRs, the Veteran's lay statements, and the post-service medical opinion that attributes the Veteran's current disorders to her active military service, service connection for a lumbar spine disorder, cervical spine disorder, and headaches is warranted. The evidence favors the Veteran's claims and there is no evidence holding otherwise. Service connection for a lumbar spine disorder, a cervical spine disorder, and tension headaches is granted. ORDER The claim for service connection for a lumbar spine disorder is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. The claim for service connection for a cervical spine disorder is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. The claim for service connection for tension headaches is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the remaining claims can be properly adjudicated. Initially, regarding the increased rating claims, the Veteran's last VA examination to assess the current severity of her service-connected plantar fasciitis of the bilateral feet was in April 2009. At her September 2012 Board hearing, the Veteran testified that her plantar fasciitis of the bilateral feet had worsened since that examination. Thus, there is evidence of record indicating that there has been a material change in the severity of the Veteran's service-connected plantar fasciitis of the bilateral feet since she was last examined. See 38 C.F.R. § 3.327(a) (2012). Where the evidence of record does not reflect the current state of a Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the April 2009 VA examination is inadequate to assess the Veteran's current level of severity. A new VA examination is required to assess the current severity of the Veteran's service-connected plantar fasciitis of the bilateral feet. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995); see, as well, VAOPGCPREC 11-95 (April 7, 1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Additionally, regarding the service connection claims, in the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Here, current diagnoses pertaining to the neurological and sleep disorder claims are of record. Specifically, the Veteran was diagnosed with insomnia by her private physician in July 2011, and complaints of fatigue are shown in the recent VA treatment records. In September 2006, the Veteran was diagnosed with generalized polyneuropathy based on an electromyography (EMG) by her private physician. In April 2009, the Veteran was diagnosed with foot numbness by the VAMC. In September 2009, VAMC treatment records listed a history of radiculopathy in the lower extremities. The VA treatment records also include neuropathy in the current diagnoses list. The Veteran's STRs also contain pertinent complaints. Specifically, in February 2004 and June 2004, the Veteran was seen for complaints of fatigue and prescribed sleep medication. On her August 2004 exit examination, fatigue was noted. The claims file contains an August 2012 lay statement indicating that the Veteran's sleep changed after her active military service. Regarding an in-service incurrence of the neurological disorder, in February 2004, the Veteran's STR document sharp pain through her right arm. In May 2004, she received a sick slip for her foot with no further information provided. In a May 2006 letter, M.T., PA-C, stated that the Veteran was seen on two occasions in service for a tingling sensation in her feet. Additionally, the Veteran is currently service-connected for plantar fasciitis of the bilateral feet and, as of this Board decision, for a cervical spine disorder and lumbar spine disorder. At her Board hearing, the Veteran testified that her current neurological and disorders were due to her active military service, or in the alternative, were due to her service-connected disabilities. To date, the Veteran has not been afforded a VA examination and medical opinion for these claims, and no nexus opinions, either addressing direct service connection or secondary service connection, are of record. Thus, the Board finds that VA examinations and medical opinions are necessary before these claims can be decided on the merits. Therefore, upon remand, the Board finds that the RO/AMC must provide the Veteran with VA examinations and medical opinions addressing the etiology of her sleep disorder and neurological disorder. See 38 C.F.R. § 3.159(c)(4). Finally, the most recent outpatient treatment records from the VAMC in Shreveport, Louisiana, are dated from September 2012. On remand, all pertinent VA treatment records since this date should be obtained and added to the claims file. All private medical records contained in the claims file should also be updated. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). The Veteran is hereby notified that it is her responsibility to report for all examinations scheduled in connection with this REMAND at whatever location it is scheduled, and to cooperate in the development of her case. The consequences of failure to report for a VA examination may include denial of her claims. 38 C.F.R. §§ 3.158, 3.655 (2012). Accordingly, the case is REMANDED for the following actions: 1. Obtain all pertinent VA outpatient treatment records from the VAMC in Shreveport, Louisiana, since September 2012 that have not been secured for inclusion in the record. Ensure that the Veteran has not been recently treated by any other local VAMCs. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 2. Update all private treatment records currently contained in the claims file. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 3. Schedule the Veteran for a VA neurological examination with an appropriate expert to determine the nature and etiology of her neuropathy and radiculopathy in the bilateral upper and lower extremities, to include the feet. The VA examiner should thoroughly review the Veteran's VA claims file, to include her STRs, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: a. State whether the Veteran has a current neurological disorder, to include neuropathy and radiculopathy, of the bilateral upper extremities and bilateral lower extremities, to include the feet. b. For each current diagnosis, is it at least as likely as not that the disorder is casually related to the Veteran's active military service? c. For each current diagnosis, is it at least as likely as not that the disorder is due to or aggravated beyond the normal progress of the disorder by the Veteran's service-connected cervical spine disorder and/or service-connected lumbar spine disorder and/or service-connected plantar fasciitis of the bilateral feet? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. In forming his or her opinion, the VA examiner is asked to consider the Veteran's lay statements regarding the progression of the disorders, and comment on whether the Veteran's statements make sense from a medical point of view. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The VA examination report prepared must be typed. 4. Schedule the Veteran for a VA examination with an appropriate expert to determine the nature and etiology of her sleep disorder. The VA examiner should thoroughly review the Veteran's VA claims file, to include her STRs, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: a. State whether the Veteran has a current sleep disorder. b. Is it at least as likely as not that any currently diagnosed sleep disorder is casually related to the Veteran's active military service? c. Is it at least as likely as not that any currently diagnosed sleep disorder is due to or aggravated beyond the normal progress of the disorder by the Veteran's service-connected lumbar spine disorder and/or service-connected cervical spine disorder? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. In forming his or her opinion, the VA examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The VA examination report prepared must be typed. 5. Schedule the Veteran for a VA foot examination in order to assist in evaluating the severity of her bilateral plantar fasciitis. Properly notify the Veteran by sending notice of the details of the examination to the Veteran at her correct address. The Veteran's claims folder must be reviewed by the examiner. Ask the examiner to discuss all findings in terms of the diagnostic codes, particularly Diagnostic Codes 5003 (degenerative arthritis), 5020 (synovitis), and 5284 (other foot injuries). The pertinent rating criteria must be provided to the examiner. The findings reported must be sufficiently complete to allow for rating. All indicated tests and studies should be accomplished. All clinical findings should be reported in detail. The examiner must describe all symptomatology associated with the bilateral plantar fasciitis. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. After the above actions have been completed, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran and her representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. 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 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). ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs