Citation Nr: 1329040 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-22 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left foot and right foot disorder. 2. Entitlement to service connection for a left hip and right hip disorder. 3. Entitlement to service connection for a left ankle and right ankle disorder. 4. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from January 1979 to January 2001. These matters come before the Board of Veterans' Appeals (BVA or Board) from November 2008 and January 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Pertinent medical records have been added to the claims file subsequent to the June 2009 statement of the case. The Veteran, through her representative, has waived initial RO consideration of this evidence. See Statement dated June 2013. The issue of entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran had problems with her feet in service and has provided credible lay evidence of continuity of symptoms of the feet in service and since service. 2. The Veteran has not had a chronic disorder of the hips or ankles at any time since, or just prior to, when she filed her claim in November 2008. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disorder and a right foot disorder (degenerative changes of the feet) are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for a left hip disorder, right hip disorder, left ankle disorder, and right ankle disorder have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Duty to Notify Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran was notified via letters dated in March 2006 and November 2007 of the criteria for establishing service connection, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. She also was notified of how VA determines disability ratings and effective dates if service connection is awarded. VCAA notice was completed prior to the initial AOJ adjudication of the claims. Pelegrini. Duty to Assist Service treatment records are associated with the claims file, as are identified VA and private medical records. Records related to the Veteran's claim for Social Security Administration (SSA) benefits are also of record. No outstanding records have been indentified that have not otherwise been obtained. The Veteran has undergone a VA examination to address the issues on appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the VA opinions obtained in this case are more than adequate. The opinions considered the pertinent evidence of record, the Veteran's personal/lay history, and provided a rationale for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Recognition is given to the fact that the aforementioned VA examination did not directly address the etiology of the Veteran's asserted ankle disability. The lack of a nexus opinion suggests inadequacy. However, the Board finds that the examinations were sufficiently adequate, and that no useful purpose would be served in remanding these issues for an additional medical opinion. Specifically, as will be discussed in greater detail below, the evidence does not show complaints, treatment, or diagnosis of ankle disability (or symptoms related thereto) in service, and a current ankle disability has not been shown. Given this evidentiary record, any opinion solicited from a VA examiner would be speculative in nature. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Applicable Laws-Service connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease 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). 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain specified chronic diseases, such as arthritis, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Board notes that although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). I. Disability of the feet In a September 2007 statement the Veteran asserted that she had chronic pain and swelling in her feet during service, with limited range of motion, which she attributed, in part, to parachute jumps made during service. She also indicated that she had experienced foot problems related to her service boots. A January 1988 service treatment record noted that the Veteran had right foot pain due to a plantar wart that had "callused over" and resulted in pain upon walking. An August 1988 service treatment record noted that the Veteran complained of left heel pain secondary to a parachute jump. A September 1988 service treatment record noted that the Veteran complained of left heel pain that occurred especially when wearing her boots; examination revealed moderate tenderness over the heel with an assessment of a deep bruise. A September 1990 service treatment record revealed that the Veteran complained of painful swelling of the left foot. A September 1992 record noted that the Veteran suffered an injury to her right great toe; a hematoma under the nail was noted and the Veteran was instructed to wear soft shoes. An October 1999 service treatment record indicated that the Veteran complained of corns and calluses of both feet the prior two years. A May 2006 private record noted that the Veteran complained of left heel pain. The left foot had tenderness on palpation of the calcaneal tuberosity. In a July 2006 private record the Veteran complained of bilateral heel pain that would prevent her from sleeping. The examiner noted that there was tenderness on palpation of both heels. At the October 2008 VA examination the Veteran complained of constant pain in her heels which required her to wear flat shoes and heel/arch supports. She stated that she had received cortisone shots for bilateral foot pain, including in June 2008. She would treat her foot pain with rest and Epsom salts. The Veteran stated that during service she had several hard landings with foot pain as a result of parachute jumps. Examination revealed some mild-moderate wear of her shoes. Mild hammertoes, 2nd to 5th, bilaterally, were noted. Tenderness to palpation of the posterior plantar mid-heel region was noted, bilaterally. X-rays were undertaken. The diagnoses included left foot and right foot degenerative changes and bilateral hammer toes, asymptomatic. The examiner indicated that it was likely that the Veteran's disability of the feet was not related to her military service. The Board finds that the Veteran's statements as to the onset of bilateral foot troubles and continuity of symptomatology since service are credible, and the Board finds that the Veteran's lay statements are sufficient to establish continuity of symptomatology of degenerative changes of the feet in this case. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of the Veteran's service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In this regard, while the VA opinion of record is not favorable to the Veteran, the October 2008 VA examiner did not overtly dissociate the Veteran's degenerative changes of the feet from her service. Further, the Veteran clearly sought treatment for her feet on numerous occasions during service, and the Board recognizes that the Veteran had documented parachute jumps during service. In addition, the Veteran's assertions that she had problems with her boots during service are also clearly documented. The Board is unable to dissociate the Veteran's bilateral degenerative changes of the feet from her active service. The competent evidence is in equipoise as to a nexus to service and in such cases, doubt is resolved in the Veteran's favor. As such, service connection for degenerative changes of the feet is warranted. II. Disability of the hips and ankles The Veteran asserts that she has left and right hip and ankle disability that is related to her military service. In a September 2007 statement she indicated that she had pain and swelling in her hips and ankles during service due, at least in part, to various parachute jumps performed during service. An April 1989 service treatment record noted that the Veteran had a bruise on her right thigh secondary to a parachute landing fall. A September 1993 service treatment record noted that the Veteran complained of right hip pain related to a parachute jump. A November 1993 record also noted the Veteran's complaints of right hip pain; the examiner believed that the symptoms were not musculoskeletal in nature. An August 1996 record indicated that the Veteran had complained that her right hip would go numb when laying on her side. A November 1996 record noted that the Veteran complained of right hip pain. A January 1997 record noted follow-up for right hip pain. An April 2000 service treatment record noted that the Veteran complained of hip pain that had lasted 3-7 days. The assessment was muscle strain with possible mild greater trochantric bursitis. No ankle or hip disability was identified by the Veteran or noted upon examination on her service retirement examination. A January 2001 VA (QTC) examination noted that the Veteran's hips were normal in outline and symmetric in form and function. A July 2003 private treatment record noted left ankle swelling. A June 2005 private record noted that right hip trochanteric bursa did not show tenderness on palpation. X-rays of the right hip were normal. A May 2006 private record noted minimal swelling of the left ankle for an unknown reason. No ankle disability was noted on examination. An October 2008 private medical record noted that the Veteran's hips had full and painless range of motion. At an October 2008 VA examination the Veteran related that in 1998 she had been dragged by a parachute and sought treatment for her right hip the day after. Her current symptoms included constant right lateral thigh pain, with no radiation. Examination of the right hip revealed no tenderness with flexion to 55 degrees, without pain. Right hip extension, adduction, and abduction were to 20 degrees, with rotation, external and internal, to 35 and 40 degrees, respectively, without pain. The examiner indicated that there was no definite right hip abnormality noted on the examination. This case turns on the current disability element of a service connection claim. The preponderance of the evidence of record shows that the Veteran has not had a left or right hip or left or right ankle disability during the course of his claim and appeal. The Veteran is competent to report symptoms of her ankles and hips such as pain. It is important to note that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. Principi, 239 F. 3d 1356 (2001). Nothing in the record, however, demonstrates that the Veteran received any special training or acquired any medical expertise in diagnosing orthopedic disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Whether she has a current hip or ankle condition is not within the realm of knowledge of a layperson. Diagnosing a hip or ankle condition is a matter not determinable merely by observation of the senses. For these reasons, the Board finds the Veteran's lay diagnosis is not competent evidence in this regard. The Veteran's representative has submitted a medical article discussing hip disability. The article, however, is not specific to the Veteran and does not show that the Veteran has a current hip disability and is therefore of no probative value in this case. The preponderance of evidence is against a finding that the first element of a service connection claim for a hip or ankle disorder has been met at any time since or just prior to the Veteran filing her claim in September 2007. Therefore the appeal as to the hips and ankles must be denied. Brammer v. Derwinski, 3 Vet. App. 223. 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no reasonable doubt to be resolved as to these issues. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for degenerative changes of the left foot and right foot is granted. Service connection for a left hip and right hip disorder is denied. Service connection for a left ankle and right ankle disorder is denied. REMAND The Veteran seeks service connection for sleep apnea, including as due to service-connected disability. In addition to direct serve connection, secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran's service-connected disabilities include right wrist carpal tunnel syndrome, thoracic spine disability, left and right knee degenerative arthritis, hyperthyroidism, and by virtue of this decision, degenerative changes of the left and right foot. The Veteran assets that her sleep apnea is related to her service or to service-connected disability. In particular, the Veteran asserts that medications taken for her service-connected orthopedic disabilities have given her digestive problems which in turn aggravate her sleep apnea. The Veteran also asserts that her sleep apnea is related to or aggravated by her service-connected hyperthyroidism disability. The Board finds the medical evidence of record is not sufficient to decide the sleep apnea claim. As such, the Veteran should be afforded a VA examination that addresses the medical matters raised by this issue. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain and associate the Veteran's complete VA treatment records since October 16, 2008. 2. The Veteran should be scheduled for the appropriate VA examination(s) regarding the claimed sleep apnea condition. The examiner must be provided the Veteran's claims file for review, and any indicated studies must be completed. Following examination of the Veteran and review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has sleep apnea that (a) had its onset in service, (b) is etiologically related to her active service, (c) is proximately due to service-connected disability (to include medications taken to treat those disabilities), (d) was aggravated (made worse) by service-connected disability. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The AOJ should then, based on all the evidence of record, readjudicate the issue of entitlement to service connection for sleep apnea, to include as secondary to service-connected disability. If the benefit sought is not granted, a supplemental statement of the case should be issued, and the Veteran and representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs