Citation Nr: 1334308 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 04-16 776A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of a left foot injury. 2. Entitlement to service connection for a left knee disorder, to include as secondary to residuals of a left foot injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to February 1983. This matter arises to the Board of Veteran's Appeals (Board) from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought on appeal. The Board remanded the case for development in August 2007 and November 2008. In June 2009, the Board denied both service connection claims; however, in an April 26, 2011-dated Memorandum Decision, the United States Court of Appeals for Veterans Claims (hereinafter: the Court) vacated and remanded the Board decision. In an order issued on January 30, 2013, the United States Court of Appeals for the Federal Circuit affirmed the Court's decision in this matter (the Federal Circuit considered whether the Court should have reversed the Board's decision, rather than vacating and remanding the Board's decision). The Veteran's representative recently submitted additional evidence and argument with respect to secondary service connection for the left knee, but did not submit a waiver of the Veteran's right to initial RO review of this evidence. Because that issue must be remanded for development, the RO will have opportunity to review the recently-submitted evidence and argument prior to Board adjudication. With respect to the left foot injury claim, the Board will proceed with its decision. Entitlement to service connection for a left knee disorder, to include as secondary to residuals of a left foot injury, 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. FINDING OF FACT 1. The Veteran's Service Treatment Reports (STRs) document a left foot and left ankle injury. 2. Competent medical evidence relates left Achilles tendonitis and left subtalar arthritis with an active service injury. CONCLUSION OF LAW Left Achilles tendonitis and left subtalar arthritis were incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. As set forth at 38 U.S.C.A. §§ 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), and 3.159, VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefits sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2013). 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); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, only a diagnosis offered by a medical professional is "competent" evidence of a diagnosis; however, when a condition may be identified by its unique and readily identifiable features and capable of lay observation, the lay diagnosis of the disorder is also competent. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). This is especially true where the lay diagnosis supports a later diagnosis offered by a medical professional. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The phrase "chronic disease" refers to those diseases listed under 38 U.S.C.A. § 1101 (3) and 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) ("The clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. The evidentiary requirements for service connection afforded combat Veterans under 38 U.S.C.A. § 1154(b) are relaxed, but, because the Veteran was not in combat, he will not be afforded this consideration. The Veteran's enlistment examination report of January 1979 reflects that pes planus was found, although the severity of it was not recorded. On a report of medical history questionnaire at entry, the Veteran reported no previous foot trouble. The Veteran's STRs reflect treatment several times for left foot and left ankle problems. The STRs document that the Veteran reported an injury on October 14, 1982. He reported sharp pain in the ankle area. He reported for treatment again on October 25 and on November 1. The diagnosis was ankle strain. During November 1, 1982, follow-up treatment, a left foot sprain was noted. The Veteran was treated again on November 29th for a possible foot sprain. That report mentions numbness of the medial aspect from time to time. He received an Ace wrap. During his February 1983 separation examination, he completed another report of medical history questionnaire and checked "yes" to a history of foot trouble and "yes" to swollen or painful joints. The examiner indicated that the feet were normal, but did not address the medical history questionnaire, which clearly reported foot and joint disorders. The Veteran underwent a physical examination in October 1985 for enlistment into a Reserve component unit. He completed a medical history questionnaire and checked "no" to foot trouble. In May 1986, however, he was seen at Fort McCoy, Wisconsin, complaining of sore feet. A DA (Department of the Army) Form 2173, Statement of Medical Examination and Duty Status, reflects that a temporary disability may result from this and that the individual was not under the influence of alcohol at the time. In July 1990, the Veteran completed another medical history questionnaire and again checked "yes" to history of foot trouble and swollen and painful joints. The Veteran applied for service connection for a bilateral foot condition in December 2000. He later explained that he had injured the left foot in October 1982 and recalled that extreme pain required the use of crutches. After that, the left foot became painful from time to time. Currently, the left foot hurt all the time. VA out-patient treatment reports also reflect treatment for right foot and right toe pains from time to time, but this appears to be unrelated to the instant claim. In December 2002, the Veteran's private physician, D. Carrillo, M.D., reported having treated the left foot problems for a long time and further reported that these foot problems are "military service related." The rationale was that the problem began in the military in the performance of usual military service activities. Dr. Carrillo noted that she/he had seen the October 1982 STR and other STRs. Dr. Carrillo reported that this foot problem is consistent with normal service activities such as marching and hiking. The Veteran sought VA treatment in July 2003 for left ankle and heel pain. A diagnosis of bilateral plantar fasciitis and left ankle pain were offered. In August 2003, November 2003, January 2004, and March 2004, the Veteran received additional VA treatment for the left foot/ankle/heel. In October 2004, a VA physician examined the left foot and noted pain and tenderness in the foot and ankle. The diagnoses included posterior tibial tendonitis, left Achilles tendonitis, and Shepherd's fracture of the left ankle. In December 2004, R. DiBacco, D.P.M., treated the left foot and ankle upon referral from the Veteran's family physician. The Veteran reported a history of left foot pain. The physician opined that the current left foot disability was caused by an original injury of 1982. A September 2008 private magnetic resonance imaging study showed minimal degenerative changes at the left ankle. In October 2008, a physician offered a diagnosis of subtalar arthritis of the left foot. Pursuant to a Board remand instruction, the Veteran underwent a VA examination in December 2008. The examining physician noted (erroneously) that the Veteran did not report any foot problem during his separation examination. The examiner stated that imaging studies of the left ankle were normal. The diagnosis was residuals of left ankle sprain with pain and limitation of motion, the onset of which was November 29, 1982. However, in an addendum report, the physician then opined that it is unlikely that the current problem is related to active service. The rationale was that the original injury was a quarter century ago, arthritis is a wear and tear disease, and the Veteran's occupation and weight are risk factors. As mentioned in the introduction, in June 2009, the Board denied the claim, but in April 2011, the Court vacated that decisoin and remanded the case back to the Board. Because there is conflicting medical evidence of etiology, the Board must weigh the evidence carefully. Concerning the two favorable private opinions, these are persuasive, as they are based on accurate facts and are supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Concerning the December 2008 VA negative opinion, that opinion is based on the erroneous foundation that the Veteran did not report a left foot problem at the time of separation. The STRs clearly reflect otherwise. Because the opinion is based on an inaccurate factual premise, it cannot be afforded any weight in this matter. The Board must also address the competency, credibility, and probative value of the lay evidence. 38 U.S.C.A. § 7104(d)(1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran has reported that his left foot pains date back to active service. This evidence is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005); 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). In this case, because the reported symptoms support a diagnosis offered by a medical professional, the lay evidence must be accorded weight in the matter. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim. Service connection for residual of a left foot injury, including Achilles tendonitis and subtalar arthritis, must therefore be granted. ORDER Service connection for left Achilles tendonitis and subtalar arthritis of the left foot is granted. REMAND The Veteran has claimed that a left knee disorder is caused by, or aggravated by, his now-service-connected left foot and ankle disorder. VA's duty to assist includes offering a VA compensation examination to develop this claim. Accordingly, the case is REMANDED for the following action: 1. The AMC should obtain any relevant VA treatment reports not already of record and associate them with the claims files. As of the date of this writing, a Virtual VA file had not been established for this Veteran. 2. Following the above, the AMC should arrange for an appropriate examination to determine the nature and etiology of any left knee disorder. The physician should review the pertinent medical history, elicit a history of relevant symptoms from the Veteran, examine the left knee, and offer a diagnosis, if forthcoming. The physician is asked to accept as credible the Veteran's claimed symptoms. The physician is asked to address whether it is at least as likely as not (50 percent or greater probability) that any left knee-related disability shown is related to active military service. If the answer above is "no," then the physician is asked to address whether it is at least as likely as not that any left knee-related disability was caused by, or aggravated by, the service-connected left ankle/foot disability, including any gait disturbance. The physician should offer a rationale for any conclusion in a legible report. 3. After the development requested above has been completed to the extent possible, the AMC or RO should re-adjudicate the service connection claim. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond. 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). Failure to report for a scheduled VA examination without good cause may have adverse consequences on this claim. 38 C.F.R. § 3.655. This claim 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs