Citation Nr: 1335984 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-06 807A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral ankle/foot disability. 2. Entitlement to service connection for a low back disability, to include as secondary to a bilateral ankle/foot disability. 3. Entitlement to service connection for a right elbow disability, to include as secondary to a bilateral ankle/foot disability. REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to October 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for bilateral ankle and low back disorders. This matter further comes before the Board on appeal from an October 2009 rating decision in which the RO denied service connection for a right elbow disorder. In August 2011, the Veteran testified at a Travel Board hearing, at the RO, before the undersigned Veterans Law Judge. In December 2011, the Board remanded this matter to the RO/Appeals Management Center (AMC) in Washington, DC, for further development, to include providing the Veteran with proper VCAA notice; obtaining updated treatment records, and obtaining a VA examination and opinion. A review of the record shows that a VCAA letter was sent in December 2011 and in April 2013, updated treatment records were obtained, and the Veteran underwent a VA examination with opinion in January 2012; thus there has been substantial compliance with Board's December 2011 remand. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for a low back disability and for a right elbow disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO. VA will notify the appellant if additional action is required on his part. FINDING OF FACT With consideration of the doctrine of reasonable doubt, the Veteran sustained a bilateral foot disability, bilateral midfoot osteoarthritis, that has been medically related to his service. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, a bilateral foot disability, bilateral midfoot osteoarthritis, was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159, 3.326(a). As the Veteran's claim is being granted herein, there would be no useful purpose in discussing whether VA satisfied the duties to notify and to assist the Veteran. II. Factual Background Service treatment records (STRs) show that in October 1984, the Veteran was seen for a twisted "ankle." At that time, he gave a history of having right ankle pain that had its onset one day previously after he had twisted it. An assessment of mild sprain was entered. In November 1984, the assessment was strain versus normal examination. An April 1985 emergency care and treatment report reflects that the Veteran was seen for a right ankle injury and possible fracture. At that time, he reported having had a "bad bone bruise" since the 5th week of basic training. He indicated he had re-injured his [right] ankle two days previously while running. X-rays of the right ankle were negative for any fractures or dislocations. He was issued crutches and a posterior splint for five days, and was instructed not to engage in any physical training for five days. STRs further show that in May 1985, the Veteran complained of having injured his right ankle during basic training. A physical evaluation of his feet revealed large and small lumps on both sides. An assessment of rule out tendonitis was recorded. In June 1985, he complained of having painful lumps on the lateral aspect of both feet that had been present for the previous six months, and an assessment with respect to the Veteran's feet was deferred. In January 1986, he complained of having bilateral arch pain for the previous two days, and on physical evaluation, the tops of both of his feet were swollen and red. There was pain with palpation and with pressure on the balls of the feet. An assessment of rule out tendonitis was entered. In June 1987, he was seen for bilateral lower extremity pain that had its onset after a 12-mile road march. An assessment of overuse syndrome was entered. A separation examination report is not of record. Post-service VA and private treatment records show that in early March 2005, the Veteran was seen at a VA clinic and gave a history with respect to the in-service injury to his ankles/feet that was consistent with that previously reported herein. It was noted that x-rays of his feet, performed in August 2004, showed a Lisfranc's deformity and degenerative joint disease in the forefoot. Impressions of Lisfranc's deformity of the right foot and ganglion cyst and degenerative joint disease of the right foot were entered. When the Veteran returned to the VA clinic a few days later in March 2005, his past medical history included Lisfranc's deformity of the right foot (past compound fracture of the right ankle). On a VA examination in February 2007, the examiner opined, after review of the claims folder and physical evaluation of the Veteran's ankles that included range of motion testing and x-rays, that his bilateral ankle pain was less likely as not (less than 50/50 probability) caused by or a result of his military service. In formulating this opinion, the VA examiner reasoned that the Veteran had sustained minor injury to both ankles in service, but was currently without any clinical or radiographic findings other than pain. On a VA disability benefits questionnaire (DBQ) in January 2012, it was noted that the Veteran reported a crush injury to his bilateral feet in 1985 after a large piece of metal fell directly onto him. He reported he was evaluated by medical personnel and X-rays were initially thought to be negative, but he had since been told that he suffered bilateral Lisfranc injuries. He claimed he was put on profile several times and reported constant pain since the injury. He also reported repeated twisting injuries to his bilateral ankles that occurred during active duty. The diagnoses were bilateral ankle arthralgia, bilateral ankle instability, crush injury to bilateral feet, bilateral midfoot osteoarthritis, bilateral pes cavus, and bilateral hallux valgus. The examiner was asked to opine as to whether it was at least likely as not that the Veteran currently had a bilateral ankle/foot disability that was etiologically related to, or had its onset during a period of active military service or as to arthritis within a year of service discharge in 1987. The VA examiner opined that the "claimed condition" was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner noted that the Veteran was evaluated on several occasions [in service] for ankle/foot complaints and that this was well documented in his file. The examiner further noted that the Veteran currently had x-ray and CT evidence of prior trauma to his feet, and that it was known that trauma can lead to and/or accelerate degenerative changes of the foot and ankle. The examiner opined that it was as likely as not that the trauma that he sustained on active duty was the cause of his current conditions VA records show that in February 2012, a CT of the Veteran's lower extremity was conducted. For the clinical history it was noted that he had a crush injury to the top of the feet in 1985, and had been in constant pain since. Examination showed severe pain in the first metatarsocuneiform joint on the right and mild pain in the cuneiform-navicular joint medial aspect on the left. It was noted that standard radiographs did not show much abnormality, and a CT scan was the next step in trying to unravel the problems with the afflicted joints. The impressions were bony excrescence arising dorsomedially from the base of the second metatarsal, consistent with the given history of prior trauma; mild degenerative changes at the second tarsometatarsal joint; evidence of prior avulsion injuries at the lateral malleolus and anterior process of the calcaneus; and small bone islands. On a VA DBQ addendum in April 2013, the examiner was asked to evaluate the Veteran's bilateral ankle and foot conditions and their relation to right ankle sprain, right ankle pain, right foot arch pain, lower extremity pain/overuse syndrome or painful lump on right foot, all of which occurred in service. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner noted that the Veteran's current ankle and foot deficits may be due to a crush injury, and were not likely due to the following service-related events: right ankle sprain, right ankle pain, right foot arch pain, lower extremity pain/overuse syndrome or painful lump on right foot which occurred in service. The examiner noted that bilateral ankle arthralgia, instability and midfoot arthritis would require a significant traumatic event to occur simultaneously, and that bilateral pes cavus and hallux valgus may occur due to a number of conditions but did not likely occur secondary to right ankle sprain, right ankle pain, right foot arch pain, lower extremity overuse, or a painful lump on the right foot. On another VA DBQ addendum in June 2013, the examiner was asked to evaluate the relationship between injuries documented in the STRs and the Veteran's current ankle and foot condition and arthritis onset within one year of service discharge. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner indicated that the Veteran's current ankle and foot conditions and arthritis within one year of service discharge on October 9, 1987 did not likely occur secondary to the Veteran's injuries documented in his STRs, including right ankle sprain and pain, bilateral lower extremity pain with overuse, bilateral foot arch pain, and painful lumps on sides of feet. On a third VA DBQ addendum in July 2013, the examiner was asked to opine whether it was at least as likely as not that the Veteran's current ankle and foot condition manifested as arthritis within a year of service discharge on October 9, 1987. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner opined that the Veteran's current ankle and foot condition, including arthritis, did not likely occur within a year of service discharge on October 9, 1987, secondary to service-documented conditions. The examiner was not aware of any evidence indicating Veteran had arthritis of his ankle or feet within one year after discharge from service. III. Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The United States Court of Appeals for the Federal Circuit recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that arthritis is listed under 38 C.F.R. § 3.309(a). Further, 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 order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, etiology of current bilateral foot/ankle foot disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra (lay persons not competent to diagnose cancer). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). IV. Discussion The Veteran essentially contends that he injured his ankles/feet when a 10-foot-long, 200-pound, pole fell off the wall in the motor pool and struck both of his ankles during military service in 1984 or 1985. The Veteran maintains that after the above-cited incident, he was placed on light duty for three to four months and was issued crutches. He contends that ever since the motor pool incident, he has had continued problems with his ankles and feet. Turning to the facts of this particular case, review of the record shows that the Veteran has been diagnosed with foot disabilities, to include bilateral midfoot osteoarthritis; thus, there is sufficient evidence of a current disability. While STRs show that the Veteran was seen for complaints regarding his ankles and feet, such records did not include a notation of the Veteran's reported in-service injury when a pole fell off the wall in the motor pool and struck his ankles and feet. The Board, however, finds the Veteran to be competent and credible to report that a pole fell and struck his ankles/feet. Moreover, his reports in this regard have been consistent. What is needed in this case is competent medical evidence linking a current ankle/foot disability to the Veteran's service. To that end, the Board notes that the Veteran's foot disability (bilateral midfoot osteoarthritis) has essentially been medically linked, by the January 2012 VA examiner, to his reported injury in service that he claimed occurred when a pole fell on his ankles and feet. While the VA examiner did not specify the nature of the "claimed condition" in rendering the opinion, a reading of the examiner's rationale shows that the Veteran's foot disability (essentially the bilateral midfoot osteoarthritis) was related to the reported injury in service. Thus, the Board finds the VA examiner's opinion in January 2012, to be definitive and includes an explanation for the opinion rendered. There is no positive medical opinion linking any other foot/ankle disorder to the Veteran's active service. It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. Thus, the Board, after having carefully reviewed the record, and weighing the evidence both in support of and against the claim, finds that the evidence is in relative equipoise as to whether the Veteran has a bilateral foot condition related to his active service. Resolving any doubt in the Veteran's favor, entitlement to service connection for a bilateral foot disability has been established, and the appeal is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for a bilateral foot disability, bilateral midfoot osteoarthritis, is granted. REMAND Regarding his low back and right elbow disorders, the Veteran testified that these disabilities are the result of post-service falls and Canadian crutches that can be related/attributed to instability caused by his bilateral ankle/foot disability. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). A review of the VA examiners' opinions from 2012 and 2013 shows that the issue of secondary service connection was not addressed. Further, in June 2013, the Veteran submitted a letter from a VA physician who reported treating him for several years for arthritis in his feet, and that the Veteran had recently been having more difficulty with maintaining his balance and had fallen several times. The VA physician noted that the Veteran had a cavus foot that produced lateral postural instability. The VA physician opined that it was as likely as not that the Veteran's pain in the feet and foot type combined together to exacerbate any tendency to fall and make it more difficult to regain his balance if a fall was imminent. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the grant of service connection for a bilateral foot disability, the fact that the VA examiners did not address the issue of secondary service connection in rendering the opinions in 2012 and 2013, and the June 2013 opinion from a VA physician, the Board concludes that a medical opinion is needed on the question of whether the Veteran's low back and/or right elbow disabilities are as likely as not related to and/or aggravated by his service-connected bilateral foot disability. Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records should be obtained and added to the claims folder. 2. Following completion of the above, arrange for the VA examiner who provided the VA DBQ opinions in April, June, and July 2013 to review the Veteran's claims folder, and specifically note that such review has been accomplished. The examiner should be requested to offer an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent degree of probability) that any current low back disability was caused or aggravated by his now service-connected bilateral foot disability. The examiner should also be requested to offer an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent degree of probability) that any current right elbow disability was caused or aggravated by his now service-connected bilateral foot disability. The examiner must explain the rationale for any opinions given. If the examiner cannot answer the above questions without resorting to mere speculation, the examiner should state why this is so. If the original VA examiner (from 2013) is not available, please forward this request to another qualified examiner in order to comply with the aforementioned request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted 3. Readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims folder is returned to the Board for further appellate consideration. 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). 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs