Citation Nr: 1327877 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 08-11 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, claimed as secondary to service-connected bilateral pes planus and metatarsus varus. 2. Entitlement to service connection for a right hip disability, claimed as secondary to service-connected bilateral pes planus and metatarsus varus. 3. Entitlement to service connection for a left hip disability, claimed as secondary to service-connected bilateral pes planus and metatarsus varus. REPRESENTATION Appellant represented by: Kenneth H. Dojaquez, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1967 to July 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran requested a Travel Board hearing on his Form 9 substantive appeal. In May 2008, the Veteran canceled his request for a Board hearing in writing. Therefore, the Veteran's request for a Board hearing is considered withdrawn. He did, however, testify at a hearing before a Decision Review Officer (DRO) at the RO in May 2008; a transcript of that hearing is of record. An April 2012 Board decision granted the Veteran's applications to reopen claims of entitlement to service connection for a lumbar spine disability, right hip disability, and left hip disability, and denied the claims on the merits. A March 2013 order of the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR) of the parties to vacate the April 2012 Board decision insofar as it denied the Veteran's claims, and to remand them to the Board for further review. The issue of entitlement to service connection for a left hip disability, claimed as secondary to service-connected bilateral pes planus and metatarsus varus is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran's lumbar spine disability was caused by his service-connected bilateral pes planus and metatarsus varus. 2. There is an approximate balance of positive and negative evidence as to whether the Veteran's right hip disability was caused by his service-connected bilateral pes planus and metatarsus varus. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). 2. The criteria for service connection for a right hip disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claims for service connection for a lumbar spine disability and a right hip disability are granted herein, as explained in detail below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected." 38 C.F.R. § 3.310(a) (2012). "Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence." 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). The Veteran served on active duty in the Air Force from July 1967 to July 1968. He is presently service-connected for bilateral pes planus and metatarsus varus (hereinafter "bilateral foot disability"). He claims that he has a lumbar spine disability and a right hip disability that are caused or aggravated by his service-connected bilateral foot disability. By way of background, with regard to the Veteran's claimed lumbar spine disability, VA and private treatment records dating back to 1973 reflect complaints of low back pain. Subsequently, VA treatment records note a history of lumbar spine discectomy surgery in 1980. See January 2005 and February 2005. More recently, April 2005 VA treatment records reflect that the Veteran underwent an L3, L4, and partial L2 laminectomy with fusion, and that his pre- and post-operative diagnosis was L3-L4 stenosis. With regard to his claimed right hip disability, private treatment records from G- Chiropractic dated in March 2000 and December 2003 reflect complaints of right hip pain. An August 2006 VA radiology report reflects diagnosed right hip osteoarthritis. See also VA Rheumatology, November 2006; VA Neurology, September 2006. The Board also acknowledges that VA treatment records reflect that the Veteran has walked with a limp with the use of a cane on the right side. See VA treatment record, February 2005. In light of the above, the Board finds that the Veteran clearly has a current lumbar spine disability and right hip disability. The Veteran was provided with VA examinations in May 2007 and December 2007 (and the Board acknowledges certain inadequacies noted in the JMR). The May 2007 VA examination report reflects diagnoses of prior lumbar spine surgery, stable on x-ray, right hip osteoarthritis, and osteoarthritis of both feet. No etiological opinion, however, was provided by the May 2007 VA examiner. The December 2007 VA examination report reflects the Veteran's complaints of back pain and bilateral hip pain, and recorded diagnoses of intervertebral disc syndrome, status post fusion, and bilateral foot osteoarthritis. The examiner opined that the Veteran's complaints of back pain and hip pain are not secondary to his bilateral foot condition, reasoning that the Veteran walked without an altered gait ("limp") for many years, because he also has cervical spine disease, and because his complaints sounded like radicular pain radiating down from his back rather than the pain originating from his feet. The Veteran recently submitted in support of his claim a June 2013 private medical opinion letter from Dr. E.A. (with a waiver of consideration by the RO). In his June 2013 opinion letter, Dr. E.A. opined that the Veteran's low back degenerative disc disease with radiculopathy and right hip osteoarthritis are related to his long-term altered gait pattern caused by his service-connected bilateral foot condition. Dr. E.A. reasoned that when the arches fail as in the Veteran's case, altered postures and altered walking patterns often result, and over time, these altered factors force one to compensate and can lead to other joint problems in the knees, hips, and back. Dr. E.A. noted that a January 1969 private treatment record documented pronation, subluxation, and splaying, that he reported back and hip pain in 1973 (albeit the Board notes the 1973 records show "leg" pain), and then in 1980, he underwent lumbar spine surgery, and that this timeline fits well with the expected course of lumbar and hip problems caused by several years of an altered gait. The Board also acknowledges several opinion letters submitted by the Veteran from B.Q., his private chiropractor, dated in May 2006, January 2007, and May 2008. In his May 2006 opinion letter, B.Q. noted that the Veteran presented to his office three days prior with complaints of right lumbo-pelvic region pain and right ankle pain, and that radiographic findings indicated right lumbo-pelvic misalignment. B.Q. opined that the Veteran's lumbo-pelvic misalignment was caused by a broken ankle incurred by the Veteran at eight years of age and aggravated by his active service, reasoning that it resulted in a change in the Veteran's gait. In his January 2007 opinion letter, B.Q. noted that radiographic findings included not only lumbo-pelvic misalignment, but also degeneration, and opined that these conditions were caused by his broken ankle at eight years of age that was aggravated by service. B.Q. reasoned that the Veteran's foot pain caused a marked effect on his gait, which played a "major part" in his lumbo-pelvic problems to date. In his May 2008 opinion letter, B.Q. wrote that he continued to treat the Veteran for lumbo-pelvic complaints caused by a severely altered gait that in turn is due to his history of foot problems since service. The Board also acknowledges a brief, single sentence opinion letter dated in February 2008 from Dr. F.G. attributing the Veteran's back condition to his legs and feet. Review of the December 2007 negative VA medical opinion indicates that it attributes the Veteran's low back and right hip disability to a cervical spine disorder, and negates the effect of an altered gait (presumably caused by the service-connected foot disorder), explaining that the Veteran did not have an altered gait for many years. By implication, however, the opinion appears to conceded that the Veteran does now have an altered gait (of unknown longevity) and presumably that an altered gait could cause such disabilities. Based upon the foregoing discrepancies, and in light of the positive June 2013 medical opinion from Dr. E.A. in which he opines that the Veteran's lumbar spine and right hip conditions are related to his service-connected bilateral foot condition, which opinion includes a thorough rationale, and having considered the opinion letters from B.Q., the Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran has a lumbar spine and right hip disability that were caused by his service-connected bilateral foot disability. Therefore, resolving doubt in favor of the Veteran, the Board will grant the Veteran's claims. In summary, the weight of the evidence of record is at least in relative equipoise, and resolving doubt in favor of the Veteran, service connection for a lumbar spine disability and a right hip disability as secondary to a bilateral foot disability is warranted. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a lumbar spine disability as secondary to a bilateral foot disability is granted. Entitlement to service connection for a right hip disability is granted as secondary to a bilateral foot disability is granted. REMAND The Veteran also claims that he has a left hip disability secondary to his service-connected bilateral foot disability. As noted in the March 2013 JMR, in June 2006, the RO requested copies of all of the Veteran's VA treatment records from the Charleston, South Carolina VA medical center dated from 1970 to present, albeit the request specified those records pertaining to the Veteran's claimed hearing loss (for which the Veteran is now service connected). The claims file contains the Veteran's VA treatment records from the Charleston VA medical center dated from January 2005 to May 2008. At the May 2008 DRO hearing, the Veteran indicated that he was treated at the Charleston VA medical center since 1972 for hip pain. Therefore, the Board finds that a remand is required so that copies of any outstanding VA treatment records dated from 1972 to 2004, and from June 2008 to present from the Charleston VA medical center may be associated with the claims file. In addition, the parties noted in their March 2013 JMR that the May 2007 VA examiner did not address whether the Veteran has a left hip disability secondary to his service-connected bilateral foot disability. The parties also noted that the December 2007 VA examiner did not indicate that the claims file was reviewed, which the parties noted contains in-service and post-service treatment records relating to the Veteran's service-connected bilateral pes planus and metatarsus varus. While the Board acknowledges several private medical opinion letters submitted by the Veteran in support of his claims herein from Dr. E.A., Dr. F.G., and from B.Q., the Board notes that none of these letters include any medical opinion that the Veteran has a left hip disability that was caused or aggravated by his service-connected bilateral foot disability. Therefore, the Board finds that a remand is necessary to provide the Veteran with a new VA examination relating to his claim, including one based on a review of the entire claims file. Finally, the Board finds that a new VCAA notice letter should be sent to the Veteran, including that explains how to substantiate a claim based on secondary service connection. See VCAA Notice, March 2007. Accordingly, the case is REMANDED for the following action: 1. Mail to the Veteran a VCAA notice letter relating to his claim for service connection for a left hip disability, including an explanation of how to substantiate a claim for secondary service connection. 2. Obtain copies of any outstanding VA treatment records from the Charleston, South Carolina VA medical center dated from January 1972 to December 2004, and from May 2008 to present and associate them with the paper or electronic claims file. If any of these records are found to be unavailable, this should be specifically noted in the claims file. 3. After all of the above development has been completed, schedule the Veteran for a new VA examination to address whether it is "at least as likely as not" (50-50 probability) that the Veteran has a left hip disability that was caused or aggravated by his service-connected bilateral pes planus and metatarsus varus. The Veteran alleges and the evidence supports that his bilateral foot condition caused an altered gait. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims file should be provided to the appropriate examiner for review. The examiner should note that the claims file has been reviewed. 4. Then, readjudicate the Veteran's claim. If his claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs