Citation Nr: 1332558 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-12 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right foot disability. 2. Entitlement to service connection for left foot disability. 3. Entitlement to service connection for right knee disability. 4. Entitlement to service connection for left knee disability. 5. Entitlement to an initial rating in excess of 20 percent for lumbar spine disability (herniated disc). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1999 to May 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a February 2010 rating decision, the RO increased the disability rating for lumbar spine disability from 10 percent to 20 percent disabling, effective February 12, 2009. The Veteran was advised of the February 2010 rating decision, but did not express agreement with the decisions or withdraw the appeal. A claim for an initial or increased rating presumes the claimant is seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Because the currently assigned 20 percent disability rating is not the maximum benefit available for this service-connected disability, this appeal continues for the entire initial rating period. In March 2010 and April 2010 substantive appeals, via a VA Form 9, the Veteran requested a hearing before the Board. In April 2010, the Veteran submitted a written request to withdraw these requests. The Board finds there is no hearing request pending at this time. 38 C.F.R. § 20.702(e) (2013). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence. The issues of service connection for right knee disability, service connection for left knee disability and an initial rating in excess of 20 percent for lumbar spine disability 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. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran incurred plantar fasciitis while in service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for right foot disability have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for left foot disability have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). In addition, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). On a February 2009 Application for Compensation and/or Pension Benefits, via a VA Form 21-526, the Veteran requested service connection for a bilateral foot condition that began during service in 1999. In a September 2009 notice of disagreement, via a VA Form 21-4138, he specified the claim on appeal as bilateral plantar fasciitis. Review of the service treatment records reveal the Veteran incurred plantar fasciitis while in service, as documented in November 2001. Additional records note his complaints and treatment, to include temporary profile, for feet pain in July 1999, December 2001, and February 2002. Review of the record demonstrates that, since separation from service, the Veteran has current right foot and left foot disabilities, specifically plantar fasciitis, and the Board finds that his current plantar fasciitis is related to the in-service incurrence of plantar fasciitis. The Veteran sought private treatment, in pertinent part, for foot pain, primarily on the plantar surface. The pain initially began more than five years ago and the precipitated event was wearing military footwear. Clinical findings revealed bilateral pain elicited over the central calcaneus, and the Veteran was diagnosed with plantar fasciitis. It was explained that "[the Veteran] suffers from severe foot pain secondary to plantar fasciitis, which in [his] medical opinion was caused by [the Veteran's] military foot wear and the job he had while serving in the [A]rmy. [The Veteran] was required to walk around on hard floors for periods of 10-15 hours daily with days of rest often coming at 60-90 day intervals." On the question of relationship of the right foot and left foot disabilities to service, the only probative nexus opinion on file, in September 2009, weighs in favor of these claims on appeal. The September 2009 private medical opinion is considered competent and of high probative value because it is factually accurate, supported by sufficient rationale, and rendered after a thorough clinical examination of the Veteran's feet. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt exists because the approximate balance of positive and negative evidence, either qualitatively and quantitatively, does not satisfactorily prove or disprove the claim. It is substantial doubt and one within the range of possibility as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b). For these reasons, the Board finds that the evidence of record shows credible reports of an in-service diagnosis of plantar fasciitis and a current diagnosis of plantar fasciitis, which the September 2009 private physician opined is related to service. Given the facts of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for right foot and left foot disabilities are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Given the fully favorable decision discussed below for the issues on appeal, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the Veteran is moot or represents harmless error. As to additional notice regarding the rating percentage and effective date to be assigned, the RO will address these matters in effectuating the awards. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). ORDER Service connection for right foot disability is granted. Service connection for left foot disability is granted. REMAND With regards to the issues of service connection for right and left knee disabilities, a September 2009 private treatment record documents the Veteran has osteoarthritis of the knees, rendered in the absence of x-ray findings of the knees. Service treatment records show complaints of bilateral knee soreness and pain in 1999 after falling down stairs and tripping over someone who fell in front of him during a run. The September 2009 private treatment record provides an opinion that the Veteran's knee pain is caused by in-service trauma to both knees, and the Veteran asserted on the February 2009 VA Form 21-526 that his bilateral knee condition began during service in 1999. As a result, the Board finds there is competent evidence of persistent or recurrent symptoms of a disability, evidence establishing that an event or injury occurred in service, and an indication that the current knee symptoms may be associated with the Veteran's service. Nevertheless, there is insufficient competent medical evidence of record to make a decision on these claims because there are certain medical questions that cannot be answered by the Board and are not addressed by the evidence of record. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Specifically, these questions concern the existence, if any, of current right and left knee disabilities and a relationship between such disabiities and active service, to include the documented in-service complaints and treatment for bilateral knee pain. These questions should be addressed by the appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). A VA examination with medical nexus opinion will assist in determining the nature and etiology of the Veteran's claimed right and left knee disabilities. With regard to the issue of an initial rating in excess of 20 percent for lumbar spine disability, since issuance of the December 2012 supplemental statement of the case (SSOC) and prior to certification of the case to the Board in September 2013, additional pertinent evidence has been associated with the claims file on VBMS and not initially reviewed by the agency of original jurisdiction (AOJ). Such evidence includes a May 2013 VA outpatient treatment record that notes the Veteran has "episodes of sever[e] back pain and stiffness where he is incapacitated for days at a time, recurring in January intermittently and states he lost his job due to it." As a result, the Board finds this claim must be remanded to the AOJ for initial review of the additional evidence of record. See 38 C.F.R. § 20.1304(c) (2013). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for the appropriate VA examination to determine: (a) whether there is a relationship between a bilateral knee disability (if any is found at this time) and military service; and (b) the current nature and extent of the back disability. The relevant medical records should be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review has been accomplished. The VA examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) that the currently diagnosed bilateral knee disability (if any is found at this time) had its origin in service or is in any way related to the Veteran's military service, to include the documented in-service complaints of knee pain, from April 1999 to May 2002. A rationale should be given for all opinions and conclusions expressed and should not be solely based on the absence of treatment records during or after service. If an opinion cannot be rendered without resorting to speculation, the VA examiner should explain why it would be speculative to respond. 2. Thereafter, the issues on appeal should be readjudicated, to include a review of the entire evidentiary record. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). 032607617 These claims must be afforded expeditious treatment. The law requires that all claims 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. 2013). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs