Citation Nr: 1334405 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-25 080 ) 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 bilateral ankle disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for a bilateral elbow disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for a bilateral hip disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for a left shoulder disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 5. Entitlement to an initial disability rating greater than 0 percent for bilateral pes planus with plantar fasciitis prior to March 15, 2013. 6. Entitlement to an initial disability rating greater than 10 percent for bilateral pes planus with plantar fasciitis after March 15, 2013. 7. Entitlement to an initial disability rating greater than 0 percent for right lower extremity compartment syndrome (shin splints). 8. Entitlement to an initial disability rating greater than 0 percent for left lower extremity compartment syndrome (shin splints). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active military service from March 1988 to March 2008. He was awarded the Combat Action Ribbon and Combat Infantryman Badge for his service in Iraq and Panama. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2012, the Veteran presented testimony at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims folder. This matter was previously before the board in September 2012, at which time the Board remanded the appellate issues for additional development. During the course of the remand, a July 2013 rating decision increased the Veteran's disability rating for bilateral pes planus with plantar fasciitis to 10 percent, effective March 15, 2013. The U.S. Court of Appeals for Veterans Claims (Court or CAVC) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulation, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993) (indicating that where a claimant has filed a Notice of Disagreement as to a decision assigning a particular rating, a subsequent decision awarded a higher rating, but less than the maximum available benefit, does not abrogate the appeal). Accordingly, notwithstanding the assignment of a 10 percent rating, the Veteran's claim for a higher disability evaluation remains in controversy because he is nonetheless in receipt of less than the maximum available benefit. Therefore, the Board has modified the issues listed above to reflect the staged ratings assigned for bilateral pes planus with plantar fasciitis throughout the appeal period. Also noted in the Board's September 2012 decision and remand, the issue of service connection for bilateral radiculopathy/sciatica of the lower extremities was withdrawn by the Veteran in August 2010. See 38 C.F.R. § 20.204 (2012). However, the Veteran again raised the issue of service connection for bilateral radiculopathy/sciatica of the lower extremities at the May 2012 Travel Board hearing. If the RO has not already taken steps to address this matter pursuant to the Board's September 2012 decision, it is again hereby referred to the RO for appropriate action. The issues of entitlement to service connection for a bilateral hip disorder and left shoulder disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, entitlement to an initial disability rating greater than 0 percent for bilateral pes planus with plantar fasciitis prior to March 15, 2013, entitlement to an initial disability rating greater than 10 percent for bilateral pes planus with plantar fasciitis after March 15, 2013, entitlement to an initial disability rating greater than 0 percent for right lower extremity compartment syndrome (shin splints), and entitlement to an initial disability rating greater than 0 percent for left lower extremity compartment syndrome (shin splints) 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. The Veteran engaged in combat with the enemy. 2. The Veteran's bilateral ankle and bilateral elbow complaints have been attributable to known diagnoses. 3. Resolving doubt in the Veteran's favor, a bilateral ankle disorder (diagnosed as bilateral heel spurring) and bilateral elbow disorder (diagnosed as bilateral elbow spurring) are etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral ankle disorder, diagnosed as bilateral heel spurring, have been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303(2013). 2. The criteria for entitlement to service connection for a bilateral elbow disorder, diagnosed as bilateral elbow spurring, have been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303(2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). With regard to issues decided herein, to the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the claims given the favorable nature of the Board's decision herein. Inasmuch as the determination below constitutes a full grant of the benefits sought, any error in notice or assistance is harmless. II. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Establishing entitlement to service connection for a disability on a direct basis generally requires evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). After reviewing the evidence of record, the Board finds that the criteria for entitlement to service connection for bilateral ankle and bilateral elbow disorders have been met. As an initial matter, the evidence establishes a current disability during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). For the elbows, minimal olecranon spurring was confirmed on March 2013 X-rays. With regard to the ankles, the March 2013 VA examination also confirmed the presence of posterior calcaneal spurring, which the examiner explained might produced referred pain to the ankles. Turning to the next element, that of in-service incurrence or aggravation of a disease or injury, the Board notes that the Veteran's DD-214 reflects that he received the Combat Infantryman Badge and Combat Action Badge. This information indicates that the Veteran participated in combat and is there entitled to the presumptions of 38 U.S.C.A. § 1154(b) (West 2002). See 38 C.F.R. § 3.304(d). Therefore, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. Although the Veteran described the impact of airborne jumps on his body during his May 2012 Board hearing, he also described the wear and tear on his joints that he was exposed to during his career as a helicopter pilot and former infantryman. Specifically, he explained that he was subjected to vibrations, heavy weights of ballistic vests, heavy weights attached to his helmet, running, and "ruck marching" with over ninety pounds of gear. The Board finds that the events he described are consistent with the circumstances of combat service and concedes the in-service injuries to his joints. Having determined that the Veteran has a current diagnoses of the bilateral elbows and ankles and that he experienced joint injuries during service, the Board now turns to the remaining element of service-connection, that of a nexus between the present disability and the in-service events. The Board acknowledges that a June 2013 VA addendum opinion stated that the Veteran's bilateral ankle and elbow disorders were less likely than not incurred in or caused by a claimed in-service injury, event, or illness. However, the examiner improperly based the opinion on the absence of in-service complaints by stating that there were "[n]o complaints or evaluations related to his left elbow while on active duty" in violation of the presumption of in-service incurrence under 38 U.S.C.A. § 1154(b). Moreover, the examiner did not specifically explain the rationale for the ankle opinion. On the other hand, the March 2013 VA examiner stated that the Veteran had "spurring at the bilateral elbows and bilateral heels (which might produce referred pain to the ankle) - each of which are a disease/condition with a clear and specific etiology and diagnosis." Significantly, the examiner concluded that the diagnosed conditions were at least as likely as not incurred in or caused by/related to service. It was explained that "[g]iven the rigors of military duties of this Veteran to include []parachute [j]umps, heave ruck sack marches, long distance runs, [and] combat duty[,] it is medically reasonable to accept the Veteran's allegations of persistent and or recurrent symptoms of bilateral . . . ankle,[] and elbow pain since service." (Emphasis added). The examiner also provided ample rationale for these conclusions, stating that researched evidence suggests an association between occupational physical demands, repetitive joint loading, such as heave ruck sack marches, and g-force of impact from parachute landings with the occurrence of osteoarthritis and that, here, the Veteran's "spurring in the elbows and heels at age 44 present an early picture of the joint aging process." Because the March 2013 opinion is consistent with the documented history of in-service combat experiences, the Board finds no adequate basis to reject this positive evidence, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board finds that the third element of a nexus to service has sufficiently been demonstrated by the evidence in this case. Given the diagnoses rendered during the appeal period and the favorable nexus opinion of record, the Board resolves doubt in the Veteran's favor and finds that the evidence supports the establishment of service connection. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, the Veteran's service-connection claims for a bilateral ankle disorder and a bilateral elbow disorder are granted. ORDER Service connection for a bilateral ankle disorder, diagnosed as bilateral heel spurring with referred ankle pain, is granted. A bilateral elbow disorder, diagnosed as bilateral elbow spurring, is granted. REMAND Although any further delay is regrettable, the Board finds that a remand is necessary in order to afford the Veteran all due process with regard to his remaining claims. As an initial matter, the Board notes that additional records from Womack Army Medical Center have been received by the RO prior to certification of the appeal to the Board that were not addressed in the most recent July 2013 supplemental statement of the case. Notably, these records contain a routine physical evaluation that documents the Veteran's musculoskeletal physical findings during the appellate period. See April 2012 treatment report. These records are not duplicative and are relevant to the issues on appeal, all of which are musculoskeletal in nature. Thus, these records must be addressed by the agency of original jurisdiction (AOJ) in the first instance through the issuance of a supplemental statement of the case. 38 C.F.R. §§ 19.37(a), 19.31(b) (discussing when an agency of original jurisdiction will furnish the appellant and his or her representative a supplemental statement of the case)). Next, in the Board's September 2012 remand, it was directed that the "RO/AMC must provide the VA examiner with the pertinent FACT SHEET for Persian Gulf[] claims, which can be found in VBA Training Letter (TL) 10-01 (February 4, 2010). The VA examiner must indicate whether he or she reviewed this FACT SHEET." See Stegall v. West, 11 Vet. App. 268 (1998) (holding where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance). The Board notes that the March 2013 VA examination report does not expressly reflect that TL 10-01 was reviewed and although the June 2013 VA addendum did specifically reference this document, the Board finds that the June 2013 VA addendum opinion is inadequate. In this regard, the examiner improperly relied on the absence of documentation of bilateral hip and left shoulder complaints in service in violation of the presumption of in-service incurrence under 38 U.S.C.A. § 1154(b). Therefore, on remand, the Board determines that a new VA examination and opinion should be provided on remand that both is conducted pursuant to a review of TL 10-01 and also adequately contemplates the Veteran's combat service. Finally, if the Veteran has obtained any additional VA treatment with respect to any of the appellate issues, these records should also be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any relevant VA treatment records relating to the appellate issues. 2. Schedule the Veteran for a new VA Persian Gulf examination by an appropriate clinician to determine the diagnosis and etiology of the Veteran's left shoulder and bilateral hip complaints. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner. The VA examiner is requested to specifically address the following: (a) Whether Veteran's bilateral hip and left shoulder complaints are indicative of: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis. (b) If any condition is either a diagnosable chronic multi-symptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis, then an additional medical opinion must be provided as to whether it is "at least as likely as not" that any left shoulder or bilateral hip disorder is related to service, including his conceded combat experiences. The examiner is directed to presume that the Veteran was subjected to joint stress of the left shoulder and bilateral hips in service notwithstanding the lack of in-service documentation to this effect (combat veterans are entitled to certain presumptions under 38 U.S.C.A. § 1154(b)). He was subjected to vibrations, heavy weights of ballistic vests, heavy weights attached to his helmet, running, and "ruck marching" with over ninety pounds of gear. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. The RO/AMC must consider the evidence added to the record and readjudicate the issues of entitlement to service connection for a bilateral hip disorder and left shoulder disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, entitlement to an initial disability rating greater than 0 percent for bilateral pes planus with plantar fasciitis prior to March 15, 2013, entitlement to an initial disability rating greater than 10 percent for bilateral pes planus with plantar fasciitis after March 15, 2013, entitlement to an initial disability rating greater than 0 percent for right lower extremity compartment syndrome (shin splints), and entitlement to an initial disability rating greater than 0 percent for left lower extremity compartment syndrome (shin splints). If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. 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 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs