Citation Nr: 1328707 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-30 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether there is new and material evidence to reopen a claim for service connection for a bilateral foot condition. 2. Entitlement to service connection for a back condition, including as secondary to the bilateral foot condition. 3. Entitlement to service connection for a leg condition, also including as secondary to the bilateral foot condition. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty in the U. S. Navy from June 15, 1972 to September 25, 1972 and from December 1, 1972 to January 18, 1973. This appeal to the Board of Veterans' Appeals (Board) is from August 2006 and September 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Board remanded these claims to the RO via the Appeals Management Center (AMC) for further development and consideration. Unfortunately, the claims require still further development before being decided on appeal, so the Board is again remanding them to the RO via the AMC. REMAND The procedural history of this case is somewhat complex. It was detailed in the Board's prior May 2011 remand so is incorporated herein by reference. Notably, in May 2011 the Board concluded that the new-and-material evidence claim stems from an earlier October 1988 rating decision that is a final and binding determination. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). The Veteran filed a petition to reopen this claim in May 2005. Finally decided claims cannot be reopened in the absence of new and material evidence. See generally 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). Furthermore, the Board pointed out that this initial determination of whether there is new and material evidence to reopen this claim pertaining to the feet must occur before adjudicating the other claims that are on appeal because they derive from the claim for a bilateral foot condition. This is because these remaining claims are predicated on the foot claim since the Veteran is alleging his back and leg conditions are secondary disabilities. See 38 C.F.R. § 3.310(a) and (b) (2012). Consequently, the adjudication of these derivative claims must be deferred pending completion of the development and adjudication of the underlying claim concerning the feet. That is to say, the Board indicated that the leg and back claims were "inextricably intertwined" with the feet claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (indicating claims are "inextricably intertwined" when they are so closely tied together that a final decision concerning a claim cannot be rendered until a decision regarding the other). See also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Hoyer v. Derwinski, 1 Vet. App. 208 (1991); and Holland v. Brown, 6 Vet. App. 443, 446 (1994) (collectively indicating these types of claims should be considered concurrently to avoid piecemeal adjudication of claims with common parameters). Also in May 2011, the Board determined an April 2007 VA examination was inadequate to answer the question of whether the Veteran's pre-existing disability of his feet was aggravated by his military service beyond its natural progression. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2012) (the statute and regulation discussing how to establishment entitlement to service connection on the basis of aggravation of a pre-service disability). The Board noted that VA's duty to assist by providing a VA medical examination did not attach to a finally decided claim unless and until such claim was reopened based on the submission of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii) (2012). The Board emphasized, however, that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board pointed out the April 2007 VA examiner was not asked, and therefore did not comment on, the most pertinent question, which was whether the Veteran's relatively brief period of service made his pre-existing foot deformities chronically, i.e., permanently worse beyond their natural progression. A pre-existing injury or disease will be considered to have been aggravated by active 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(a). If, as here, a pre-existing condition is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. But in that case, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). 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 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has 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. See Routen v. Brown, 10 Vet. App. 183, 189 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. Only if the Veteran manages to show a chronic worsening of his pre-existing condition during his service would the presumption of aggravation apply and, in turn, require VA to show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression. The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). See also 38 C.F.R. § 3.303(c) indicating that, in regard to pre-service disabilities noted in service, there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established no additional or confirmatory evidence is necessary. Section 3.303(c) goes on to indicate this determination includes situations where the manifestation of symptoms of chronic disease from the date of enlistment, or so close thereto, that the disease could not have originated in so short a period will establish pre-service existence thereof. Here, during his June 14, 1972 military entrance examination, the Veteran indicated that he had experienced foot trouble. The examiner described the Veteran's feet as "abnormal" and observed a moderate hammertoe deformity of the left foot, though asymptomatic, and a left ankle scar. There are three other records from his service regarding the evaluation and treatment for his feet. A June 21, 1972, record states "Podiatry-feet biplanar type correction due to painful calluses." A June 23, 1972, record indicates "NIMITL c/o and supports hurting ankles. To MO for evaluation." A June 26, 1972 record indicated pain and swelling left foot and ankle, X-ray to rule out pathology. During his January 1973 separation examination, the Veteran indicated he had had "ear, nose, or throat trouble," "severe tooth or gum trouble," and "cramps in [his] legs" but did not indicate "foot trouble" as he earlier had during his military entrance examination. The examiner merely observed a left foot scar. The April 1978 Review of Discharge references a record of a visit to sick bay on June 25, 1972, for pain and swelling in the left foot and ankle. The October 1988 rating decision references a service treatment record (STR) indicating the Veteran was seen in Podiatry one week after entering service with a complaint of painful feet and ankles, particularly on the left, for which he was given arch supports. The Board therefore found that a medical opinion was needed to determine whether the Veteran's military service had aggravated his foot deformities beyond their natural progression. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In June 2011, pursuant to this remand directive, the Veteran was afforded another VA examination of his feet. The examiner concluded that, after an examination of the record and review of the pertinent evidence, the Veteran's pre-existing bilateral foot disability was permanently aggravated by injury/illness incurred while on active duty service. The examiner failed to also indicate, however, whether the worsening was due to the natural progression of the condition or above and beyond that. He also did not provide any explanatory rationale, which is where most of the probative value of an opinion is derived, not just from review of the evidence in the claims file or what is ultimately concluded. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion containing only data and conclusions is accorded no weight). Thus, the examination report is inadequate. See 38 C.F.R. § 4.2 (indicating it is incumbent on VA in this situation to return the report for correction). The RO resultantly obtained an additional medical opinion in July 2012, but the rationale provided was inadequate because the examiner did not explain whether there was any worsening of the bilateral foot disability during the Veteran's service. He simply described what had happened before service and what had occurred since. He opined there was no aggravation of the condition in service beyond the normal progression on the condition. His rationale, however, was unresponsive. So this additional opinion is inadequate, as well. Id. Because the medical opinions obtained are inadequate, the RO/AMC failed to comply with the Board's remand order. And in this circumstance, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand order of the Board or the Court is not complied with, the Board errs as a matter of law in failing to ensure compliance). Consider also that a medical notation dated in May 1987 suggests the Veteran was applying for disability benefits from the Social Security Administration (SSA). Moreover, he told the June 2011 VA examiner that he had just applied for SSA disability benefits. Because these records are likely relevant to this appeal, especially seeing as though he has repeatedly complained of not being able to work because of his bilateral foot disability, they must be obtained. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (Fed. Cir. Jan. 4, 2010) (VA is required to obtain SSA records, albeit only when they may be relevant to the VA claim). Accordingly, these claims are again REMANDED for the following additional development and consideration: 1. Obtain from SSA the records concerning the Veteran's claim for disability benefits from this other Federal agency, including the medical records considered is determining his entitlement. Since these records are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts to obtain these records as this VA regulation requires. Also appropriately notify the Veteran if unable to obtain these records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule the Veteran for another VA compensation examination for a supplemental medical opinion on the likelihood (very likely, as likely as not, or unlikely) that his military service from June 15 to September 25, 1972 and from December 1, 1972 to January 18, 1973, chronically aggravated his pre-existing bilateral foot disability - meaning permanently worsened it above and beyond its natural progression. The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, rather, that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. It is most essential the examiner discuss the underlying medical rationale of the opinion, preferably citing to evidence in the file supporting conclusions. So it is not just the ultimate conclusion that is important, but also the reasoning supporting it. If this requested medical opinion cannot be provided, such as because it would require resorting to mere speculation, then the examiner should so state but must also discuss the reason(s) why a response is not possible. So merely saying he/she cannot respond will not suffice. 3. Then consider whether there is new and material evidence to reopen this previously denied, unappealed, claim for service connection for a bilateral foot condition. The RO/AMC must make this threshold preliminary determination first, and only if there is new and material evidence will it then be permissible to readjudicate this claim on its underlying merits (de novo). And since the remaining claims for service connection for back and leg conditions are predicated on the notion they are secondary to the bilateral foot condition, reconsider, as well, these other claims. If these claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit written or other argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).