Citation Nr: 1332708 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-28 787 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a claimed low back disorder. 2. Entitlement to service connection for a claimed left hip disorder. 3. Entitlement to service connection for a claimed respiratory condition, to include bronchitis. 4. Entitlement to an increased rating for the service-connected bilateral plantar fasciitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from June 2004 to January 2006 The case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the RO. The matter arrived before the Board in June 2011. At that time, in addition to the above-captioned claims, a claim for service connection for a disability manifested by an abnormal pap smear, and a claim for a higher rating for allergic rhinitis were also on appeal. The Board adjudicated these two claims. The claims of service connection identified on the preceding page were remanded for additional development of the record. The Board also assigned an initial rating of 10 percent for the service-connected bilateral plantar fasciitis in June 2011 and remanded the matter of a rating in excess of 10 percent for further development. As such, the claim remains on appeal. The Board has considered documentation included in Virtual VA. In a July 2011 letter, the Veteran raised a claim for a temporary total rating based on hospitalization due to the service-connected foot disorder. As this claim has not been adjudicated by the Agency of Original Jurisdiction, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. The issues of service connection for a respiratory condition and an increased rating for the service-connected bilateral plantar fasciitis are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The currently demonstrated lumbosacral strain is shown as likely as not to have had its clinical onset during the Veteran's period of active service. 2. The currently demonstrated left hip strain is shown as likely as not to have had its clinical onset during the Veteran's period of active service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, her disability manifested by lumbosacral strain is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 2. By extending the benefit of the doubt to the Veteran, her disability manifested by a left hip strain is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance To the extent that the action taken hereinbelow is favorable to the Veteran, a full discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not required at this time. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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). Service connection may also 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). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") In addition, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). However, given the basis for the allowance, as noted below, any further discussion of the amendment is unnecessary. In June 2011, the Board remanded the claims for low back and left hip disorders, in order to ascertain whether there was any relationship between the disorders and service, or whether they were caused or aggravated by the Veteran's service-connected bilateral foot disorder. The Board noted that despite in-service lumbar spine and left hip complaints and post-service diagnoses, a January 2006 VA examiner had found no back or left hip abnormalities. In August 2011, the Veteran underwent a VA joints examination. The claims file was reviewed. With regard to the Veteran's feet, the examiner noted that she had recently undergone surgery in April 2011. The surgery involved resection of two Morton's neuromas from her right foot. She was also noted to have had a Morton's neuroma on the left foot, but had not wanted to undergo surgery on that foot yet. Since her surgery, the pain in both feet, her back, and her hip had improved. The examiner diagnosed the Veteran with two Morton's neuromas of the right foot, and one Morton's neuroma of the left foot. He found no evidence of plantar fasciitis. The examiner essentially found that the Veteran's bilateral foot disability had been mischaracterized as plantar fasciitis, and that the correct diagnosis was actually Morton's neuroma. He based this finding on the Veteran's history of symptoms, beginning while on active duty, and the clinical evidence supporting the diagnosis of Morton's neuromas. The examiner then determined that, "it [was] as likely as not that her lumbosacral strain and left hip strain [were] related to the gait disturbance caused by her Morton's neuroma and foot pain." The examiner further explained that, "[s]he [was] currently asymptomatic in regard to both disorders. This should confirm the above diagnosis and discussion and confirm the etiological cause of her back and hip condition to her bilateral foot condition, which in the right foot was worse than the left." The Board notes that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, despite the August 2011 VA examiner's findings that the Veteran's low back strain and left hip strain are asymptomatic, the presence of a current diagnosis is conceded. Initially, the Board notes that the examiner did not find that the Veteran did not have a left hip or lumbar spine disability; rather, he found that the Veteran's lumbosacral strain and left hip strain are not symptomatic at this time. Further, a review of the record preceding the August 2011 VA examination confirms diagnoses pertaining to the lumbar spine and left hip. In February 2006, the Veteran was diagnosed with causalgia of the lumbar spine and left hip. In March 2006, she was diagnosed with lumbago of the lumbar spine. On MRI at that time, she was also diagnosed with an incidental L5 vertebral body hemangioma. In June 2006, she was diagnosed with a left hip strain. In July 2011, she was noted to have hip arthralgia. Accordingly, on this record, the Board finds that the Veteran as likely as not suffers from a recurrent disability that had its clinical onset during service and has continued to be due to the service-connected bilateral foot disability. The Board further finds that there is no evidence to the contrary of the August 2011 VA examiner's opinion on the issue of service connection. The January 2006 VA examination report contains no opinion in this regard. The August 2011 report is fully adequate for purposes of adjudication. The claims file was reviewed and discussed. All diagnostic testing necessary for assessing the Veteran's disabilities was conducted, and all subjective and objective symptomatology was described. The medical examiner's findings were factually accurate and fully articulated, and valid medical analyses were applied. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion was based on a review of the claims file and examination of the Veteran, and the examiner explained the bases for the conclusions reached. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for a lumbosacral strain is granted. Service connection for a left hip strain is granted. REMAND After having carefully considered the case, and for the following reasons, the Board believes that the claims remaining on appeal must be remanded for further development of the record. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the claim for service connection for a respiratory condition, in June 2011 the Board remanded the claim in order to obtain a medical opinion on the nature and etiology of the disorder. Specifically, in Remand Directive #3, the examiner was to opine on whether it was at least as likely as not (a 50 percent or more probability) that any current respiratory disability is due to an event or incident of the Veteran's period of active service. The examiner was to explain the significance of January 2006 chest X-ray studies of the lungs that suggested bronchitis or asthma. On VA examination in August 2011, the examiner did not render the opinion requested. The examiner essentially found no respiratory abnormality. However, the examiner stated that while her chest CT was normal, "she will be scheduled for pulmonary function testing." As for the January 2006 findings, the examiner stated, "her chest x-ray studies of the lungs that indicated bronchitis, indicated bilateral lower lobe infiltrates, which were consistent with the diagnosis of bronchitis and she will have pulmonary function testing to determine if she has bronchospasm or asthma." No additional testing was conducted, and no addendum opinion was obtained. The Board finds that this testing must be completed, and the opinion requested obtained, prior to appellate adjudication. As for the increased rating claim involving the Veteran's bilateral feet, the Board is aware that a superficial review of the June 2011 decision/remand suggests this claim is no longer on appeal, as the Board ordered the assignment of an initial 10 percent rating for bilateral plantar fasciitis. However, the Board further remanded the claim based on the Veteran's complaints that the condition had worsened since the last VA examination. In August 2011, a VA examination was conducted. As discussed in the decision above, the examiner essentially determined that the Veteran's service-connected foot disability has been misdiagnosed as plantar fasciitis, and that the correct diagnosis is Morton's neuromas. After completing the requested action, the RO was to readjudicate the claim. In Remand Directive #6, the RO was specifically instructed that if any benefit remained denied, the Veteran and her representative were to be furnished a supplemental statement of the case (SSOC) and afforded an appropriate time period for response before the claims file was returned to the Board for further appellate consideration. The RO issued an SSOC in September 2012, but did not readjudicate the claim for an increased rating for plantar fasciitis. Under these circumstances, the Board has no alternative but to, again, remand the claim involving plantar fasciitis for action in compliance with the prior remand. See Stegall, 11 Vet. App. at 271. Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. The RO should schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed respiratory disorder. The examiner should review the claims folder, including a copy of this remand, and acknowledge such review in the examination report. Based on a thorough review of the case and the findings of examination, including the Veteran's lay assertions, the examiner should opine as to whether it at least as likely as not (a 50 percent or more probability) that any current respiratory disability is due to an event or incident of the Veteran's period of active service. In this regard, the examiner should explain the significance of the January 2006 chest X-ray studies of the lungs that suggested bronchitis or asthma. The August 2011 examiner indicated that pulmonary function testing was needed to address this. Accordingly, any and all studies, tests, and evaluations deemed necessary should be performed. If pulmonary function testing is not performed, the reason for this must be clearly explained for the record. 2. The Veteran is hereby notified that it is her responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 3. After the requested examination has been completed, the RO should review the examination report to ensure it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence on file. In readjudicating the Veteran's claim for an increased rating for her bilateral foot disability, the RO should consider the August 2011 VA examiner's findings that the disability has been misdiagnosed as plantar fasciitis, and that the correct diagnosis is Morton's neuromas. The RO should take any appropriate action in this regard. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs