Citation Nr: 1335672 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-21 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral lower leg and foot disorder, to include peripheral vascular disease (PVD), arthritis of the feet, and a neurological disorder. 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from May 1955 to May 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio (Tiger Team). Jurisdiction has been retained by the RO located in Montgomery, Alabama. In August 2012 and April 2013, these matters were remanded by the Board for further development. Such development has been completed and associated with the claims file, and these matters are returned to the Board for further review. The Board notes by way of background that in August 2012 and April 2013, the Board also remanded the issues of entitlement to service connection for a neck/upper spine disorder, a low back disorder, and residuals of broken toes for further development. Subsequently, the RO granted service connection for a cervical spine disability, lumbar spine disability, and residuals of broken toes (bilateral) by way of an August 2013 rating decision. The Board also notes that in its August 2012 remand, the Board referred the issue of entitlement to service connection for tinnitus to the agency of original jurisdiction (AOJ) for adjudication, which claim was subsequently granted by way of an August 2012 rating decision. Therefore, as these claims were all granted in full, they are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a bilateral knee disability and for a bilateral lower leg and foot neurological disorder 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 preponderance of the evidence establishes that the Veteran has bilateral foot arthritis that is etiologically related to an injury incurred during his active service. 2. The preponderance of the evidence is against a finding that the Veteran has PVD that is etiologically related to his active service. CONCLUSIONS OF LAW 1. Service connection for bilateral foot arthritis is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. Service connection for PVD is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As explained in detail below, service connection for bilateral foot arthritis is granted herein. Therefore, with regard to the Veteran's claim for service connection for a bilateral foot disability, the Board finds that any error under the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the Veteran's claim for service connection for a bilateral lower leg disorder as it relates to PVD, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2013). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2013). The 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a May 2008 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013). The May 2008 VCAA letter informed the Veteran of the information or evidence was needed to support his claim, what types of information or evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The notices also explained how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's VA treatment records and private treatment records have been associated with the claims file. In this regard, the Board notes that the Veteran's service treatment records have been shown to be fire-related. See NPRC Response, September 2008. In September 2008, the Veteran submitted an NA Form 13055 to attempt to reconstruct the medical data, on which he reported he had been treated at a medical facility in service between 1956 and 1957 with the 8th Army Headquarters. A request was made by the RO in October 2008 to the National Personnel Records Center (NPRC) for a search of the morning reports of the 8th Army Headquarters, and a negative reply was received in December 2008. The RO sent a December 2008 follow-up notice to the Veteran explaining that his service treatment records were unavailable, informing him of alternate sources of evidence, and asking that he submit copies of any such records in his possession. A December 2008 formal finding of the unavailability of the Veteran's service treatment records was also prepared. Based thereon, the Board finds that the RO exhausted all administrative efforts to obtain copies of the Veteran's service treatment records. With regard to the Veteran's private treatment records, as outlined in the Board's prior remands, the Board acknowledges that the Veteran identified private treatment by Drs. S., P., Wo., M., H., Wh., R., and G. The Board directed in its August 2012 remand that these records be obtained, and that the RO provide the Veteran with an opportunity to identify any other outstanding treatment records relating to his claim. Pursuant to the Board's remand directive, in August 2012 and December 2012, the RO sent the requisite letters to the Veteran. In response, in August 2012, the Veteran submitted copies of treatment records from Drs. H., Wh., R., and N. (the last of whom he had not previously identified). In a September 2012 Form 21-4142, the Veteran reported that several of the other doctors were either deceased or retired. In October 2012, he submitted additional copies of private treatment records from Dr. Wh. dated from February 2006 through August 2011. Also on the September 2012 Form 21-4142, the Veteran identified outstanding private treatment records from Dr. J.C. at the Medical Arts Center, noting that he was presently his primary care doctor; the Board acknowledges that the RO made two requests for these records in December 2012, and followed up twice with the Veteran that same month. Later in December 2012, a negative response was received from the Medical Arts Center (noting they had no records concerning the Veteran). He also explained on the September 2012 Form 21-4142 that Dr. S. was with the East Alabama Medical Center (a private facility) in Opelika, Alabama. In its April 2013 remand, the Board directed that the RO obtain copies of any outstanding private treatment records from Dr. S. at the East Alabama Medical Center. Pursuant to the Board's remand directive, in April 2013, the AMC requested that the Veteran provide a completed Form 21-4142 so that copies of any of the private treatment records from Dr. S. could be obtained. In May 2013, the Veteran replied that the records were unavailable. With regard to the Veteran's VA treatment records, in its August 2012 remand, the Board noted that the Veteran reported that he had received treatment in the 1990s at the Tuskegee and Montgomery VA medical centers (VAMCs), and that he had been treated at the Birmingham VAMC but no dates were provided by him, and directed that the RO ask the Veteran to identify when he was treated at each of these VAMCs. Pursuant to the Board's remand directive, the RO sent an August 2012 request to the Veteran that he clarify the location and dates of treatment at VA facilities. In August 2012, the Veteran replied that he was treated at the Tuskegee and Birmingham VAMCs from 2000 to present, which records are associated with the claims file. He also submitted a copy of a notice from the Birmingham VAMC regarding a July 2009 vascular appointment, whereas there was no copy of any such treatment record in the claims file. Therefore, in April 2013, the Board also remanded the Veteran's claim so that a copy of any outstanding July 2009 VA vascular treatment record could be obtained. Pursuant to the Board's remand directive, in April 2013, the RO requested from the Birmingham VAMC a copy of all of the Veteran's treatment records dated from January 2009 to August 2009, including in particular a copy of any July 2009 vascular treatment record. In May 2013, the Birmingham VAMC replied with copies of all of the Veteran's treatment records from 2008 to 2010, including a record reflecting that the Veteran was a no-show for the July 2009 scheduled appointment. Also, in April 2013, the Board directed that the RO obtain copies of all of the Veteran's VA treatment records dated after June 21, 2012. Pursuant to the Board's remand directive, copies of all of the Veteran's VA treatment records dated from June 2012 to present were associated with the electronic claims file. In addition, the Board acknowledges that records in the claims file indicated that the Veteran is in receipt of benefits from the Social Security Administration (SSA). In that regard, in its August 2012 remand, the Board directed that copies of the Veteran's medical records be obtained from SSA. Pursuant to the Board's remand directive, in August 2012, a request was made to SSA for copies of his SSA records. Later, in August 2012, SSA replied (twice), and ultimately explained that the Veteran was not in receipt of disability benefits and that his records were destroyed. The Veteran was notified of such in January 2013. In January 2013, the Veteran reported that he received retirement income from the SSA, not disability benefits. Therefore, the Board finds that any further attempts to obtain these records would be futile. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In August 2012, the Board remanded the Veteran's claim so that he could be provided with a VA examination. Pursuant to the Board's remand directive, the Veteran was provided with a VA examination in September 2012, but the examiner did not provide any rationale for his conclusions. Therefore, in April 2013, the Board again remanded the Veteran's claim for a new VA examination. Pursuant to the Board's remand directives, the Veteran was afforded a new VA examination in September 2013. The Board finds that the September 2013 VA examination is adequate upon which to base a decision with regard to the Veteran's claim. The examiner had an opportunity to review the claims file, interview the Veteran and examine him, and provided a rationale for his conclusions. In light of all of the above, the Board finds that the duty to assist was met. In addition, the Board finds that there was substantial compliance with all of the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). 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) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran served on active duty from May 1955 to May 1958. He claims that he has a bilateral lower leg and foot disorder, to include PVD, foot arthritis, or a neurological disorder as a result of an in-service injury. Specifically, the Veteran asserts that he injured his legs and feet in December 1956 in Korea when a 55 gallon drum of heating oil fell off the back of a truck and rolled over him from head to toe. See, e.g., Statements, May 2008, January 2009, October 2012, January 2013, and February 2013. He reports that his feet were swollen so badly that his boots had to be cut off and he was on profile for no duty for a week, and then light duty for the rest of his tour in Korea. As noted in the VCAA section, the Veteran's service treatment records are fire-related. Nevertheless, the Board finds the Veteran's detailed account of having the 55 gallon drum roll over him from head to toe in service to be credible, competent and probative. An April 2009 VA podiatry consult record reflects, among other things, diagnosed DJD of the metatarsal joints. A September 2012 VA examination report reflects the examiner opined that it was less likely than not that the Veteran's bilateral foot condition was incurred in or caused by the claimed in-service injury. The examiner reasoned that there was no evidence in the claims file to support the Veteran's claim, but did not provide any further rationale. A July 2013 VA examination report and August 2013 addendum reflect, among other things, that x-rays of the Veteran's feet revealed mild arthritis involving the cuneiform metatarsal and interphalangeal joints. Also diagnosed was metatarsalgia. The examiner opined that it is at least as likely as not that the Veteran's foot conditions are the result of his in-service injury, reasoning that the crushing effects from the in-service injury would have affected multiple joints in a pattern consistent with the diffuse degenerative foot changes found on x-rays. While the Board acknowledges that the September 2012 VA examiner opined that it was less likely than not that the Veteran's bilateral foot condition is related to his in-service injury, the Board notes again that the examiner did not provide an adequate rationale for his conclusion, such that his opinion carries little or no probative value. By contrast, as discussed above, the July/August 2013 VA examiner attributed the Veteran's bilateral foot arthritis to his in-service injury, which opinion was supported by an adequate rationale and was based on an interview and examination of the Veteran and a review of the claims file. As the September 2012 VA examiner's opinion carries no probative value, the July/August 2013 VA examiner's opinion is uncontradicted. Therefore, the Board finds that a preponderance of the evidence shows that the Veteran's bilateral foot arthritis is etiologically related to his conceded in-service injury, and the Board will grant the claim. The Board notes that the Veteran is separately service-connected for residuals of broken toes, including cavus feet. The August 2013 rating decision which granted service connection for residuals of broken toes and assigned a 10 percent rating for each foot pursuant to Diagnostic Code 5278 noted that the assigned rating for claw foot was based on all toes tending to dorsiflexion, definite tenderness under the metatarsal heads and dorsiflexion of the great toe. There is no indication that service connection was granted for arthritis. With regard to the Veteran's claimed bilateral leg disorder of PVD, a February 2008 VA treatment record reflects that the Veteran complained of cramping in both of his legs when walking. An April 2008 vascular ultrasound revealed PVD. A June 2008 VA treatment record reflects that the Veteran reported experiencing numbness of the legs and feet. A June 2008 VA vascular surgery consult reflects that the physician opined that after reviewing the Veteran's history and the studies, it was unlikely that his complaints were related to his diagnosed PVD, and that it was possible that nerve compression relating to his back condition was causing his symptoms (which neurological finding is addressed in the remand section below). The Veteran is presently service-connected for a back disability. A September 2013 VA examination report reflects that the VA examiner opined that the Veteran's PVD is less likely as not incurred in or caused by his in-service injury. The examiner reasoned that the Veteran did not develop symptoms until the recent past, and had the in-service injury impacted his blood vessels, his symptoms would not have taken such a long time to manifest. Furthermore, the VA examiner noted that the Veteran had diagnosed atherosclerotic heart disease, which the examiner opined involves a predisposition to developing obstructive plaques in blood vessels unrelated to trauma. In light of the above opinion of the September 2013 VA examiner, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection as it relates to his claimed PVD (any claimed neurological disorder of the bilateral lower legs and feet is addressed in the remand below). While the Board has conceded that the Veteran incurred injuries in service due to the 55-gallon drum rolling over him, and while the evidence shows diagnosed PVD, the September 2013 VA examiner opined that the Veteran's PVD is not related to his in-service injury, which opinion is not contradicted by any other medical evidence of record. The VA examiner reviewed the claims file, interviewed and examined the Veteran, and provided a rationale for her conclusions. The Board acknowledges that the Veteran has asserted that he has experienced leg pain for over 50 years. The Board also acknowledges that the Veteran has reported that he was hospitalized for treatment of leg pain between 1960 and 1970. See Statement, May 2008. As noted in the VCAA section, the RO made exhaustive efforts to assist the Veteran in obtaining these early private treatment records, but the Veteran ultimately replied that they were not available (and otherwise did not return completed Forms 21-4142). Even if the Veteran's account were credible regarding receiving post-service treatment as early as 1960, the Board finds that his lay history is by far outweighed by the competent medical opinion of the September 2013 VA examiner, as the Veteran is not competent to etiologically link leg pain or cramping to a blood vessel disorder such as PVD, which requires medical expertise and diagnostic testing. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). In summary, the Board concludes that a preponderance of the evidence is in favor of granting service connection for bilateral foot arthritis, but that the preponderance of the evidence is against granting service connection for the Veteran's claim as it relates to his diagnosed PVD (a claimed neurological disorder of the lower leg and foot is addressed in the remand section below). The benefit of the doubt rule is not for application, as there is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral foot arthritis is granted. Entitlement to service connection for PVD is denied. REMAND A. Lower Leg and Foot Neurological Disorder With regard to the Veteran's claim for service connection for a lower leg and foot disorder, the Board has granted service connection for bilateral foot arthritis and denied service connection for PVD. Also, as noted above, the Veteran is service-connected for residuals of broken toes, including pes cavus. Therefore, the issue remains whether the Veteran has a neurological disorder of the lower leg and foot that was caused by the in-service 55-gallon drum incident, or that is secondary to his service-connected back disability. In that regard, February 2008 to June 2008 VA treatment records reflect that the Veteran complained of cramping in both of his legs, numbness of the legs and feet. A June 2008 VA vascular consult record reflects the physician opined that nerve compression due to the Veteran's back condition could be causing his symptoms. A September 2009 VA treatment record reflects diagnosed neuritis. More recent VA treatment records also reflect diagnosed neuropathy. See Podiatry, October 2010; cf. VA Examination (spine), September 2012 (no findings of radiculopathy); August 2011 (negative for neuropathy in feet). While the Veteran has been provided with orthopedic and vascular VA examinations, he has not been provided with a VA examination addressing any possible neurological disorder of the bilateral lower legs and feet. In light of the Veteran's complaints and the above medical evidence of record, the Board finds that a remand is necessary so that the Veteran may be provided with a VA examination to address whether he has any neurological disorder of the lower legs and feet that is related to his in-service injury or his service-connected back disability. B. Right Knee The Veteran also claims that he incurred a bilateral knee disability as a result of the in-service drum injury. A VA examination was provided in September 2012, but the VA examiner did not provide any rationale for his conclusions. In April 2013, the Board remanded the Veteran's claim for a new VA examination, which was provided in July 2013. An addendum opinion was prepared in August 2013 after a review of the claims file. The VA examiner opined in August 2013 that the Veteran's advanced degenerative arthritis of the bilateral knees that led to his bilateral total knee replacements is less likely as not related to his in-service injury, reasoning that x-rays of the Veteran's knees in 2000 showed no arthritis. The Board notes, however, that an August 2000 VA treatment record notes that the Veteran had a history of right hip surgery and notes diagnosed degenerative joint disease (DJD) of the right knee with a shortened biceps femoris secondary to a right hip fracture immobilization. The Board notes that another August 2000 VA treatment record reflects that diagnosed left knee DJD was also noted (albeit unclear whether "left" rather than "right" was a typographical error). Therefore, the Board finds that a remand is necessary for clarification after a close review of these records dated in 2000 showing diagnosed arthritis as to whether the Veteran's bilateral knee arthritis that led to his bilateral total knee replacements is related to his in-service drum injury. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Provide the Veteran with a notice compliant under the VCAA regarding his claim for service connection for a neurological disorder of the bilateral lower legs and feet, including for secondary service connection. 2. Ask the same examiner who provided the July 2013 VA examination and August 2013 VA medical opinion to review the claims file, particularly the August 2000 VA treatment records reflecting diagnosed right and left knee degenerative joint disease (DJD), and to clarify whether it is at least as likely as not that the Veteran has a left or right knee disability, to include arthritis, status post bilateral total knee replacements, that is related to his conceded in-service drum incident. 3. Schedule the Veteran for a VA neurologic examination. Please ask the examiner to address the nature and etiology of any neurological disorder of the lower legs and feet, including his diagnosed neuritis of the feet and neuropathy. In this regard, the examiner's attention is directed to February 2008 to June 2008 VA treatment records reflecting that the Veteran complained of cramping in both of his legs, numbness of the legs and feet. A June 2008 VA vascular consult record indicates that nerve compression due to the Veteran's back condition could be causing his symptoms. A September 2009 VA treatment record reflects diagnosed neuritis. More recent VA treatment records also reflect diagnosed neuropathy. See Podiatry, October 2010; cf. VA Examination (spine), September 2012 (no findings of radiculopathy); August 2011 (negative for neuropathy in feet). The examiner is requested to opine as follows: a. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's neurologic disorder is related to his conceded in-service drum incident; b. whether it is at least as likely as not that the Veteran's neurologic disorder is due to or caused by the service-connected back disability; and c. whether it is at least as likely as not that the Veteran's neurologic disorder is aggravated (i.e., worsened) beyond the natural progress by the service-connected back disability. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's neurologic disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected low back disability. 4. Then, readjudicate the Veteran's claims. If the claims remain denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The appellant 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. 2013). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs