Citation Nr: 1336377 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 07-25 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for low back disorder, to include as secondary to pes planus disability. 2. Entitlement to an evaluation in excess of 10 percent for pes planus. 3. Entitlement to a finding of total disability due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from October 1985 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO), which denied the claim for service connection for a low back disorder, and denied an evaluation in excess of 10 percent for pes planus. In June 2010, the Veteran testified before the undersigned during a Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims folder. The Travel Board hearing was sufficient to fulfill his right to a hearing under 38 C.F.R. § 20.700(a) (2013). The Board remanded the claims for service connection and increased rating in August 2010 to the RO (via the Appeals Management Center (AMC)) for additional development, to include seeking the Veteran's assistance in obtaining any outstanding records of pertinent treatment and providing the Veteran with a VA examination in conjunction with his claims. When the matters returned to the Board in July 2012, the Board denied the Veteran's claim for an evaluation in excess of 10 percent for pes planus and remanded the service connection claim for additional development. The Board acknowledges that August 2013 supplemental statement of the case (SSOC) incorrectly identifies the remanded issue on appeal as an increased rating claim for pes planus disability. However, in the body of the SSOC, the AMC addressed the additional evidence, the merits of the service connection claim for low back disorder, and ultimately, re-adjudicated the claim following the additional development. Moreover, the Veteran was notified in August 2012 by the AMC that his low back claim was being further developed. The Veteran also attended a February 2013 VA spine examination in conjunction with his claim. Although the August 2013 SSOC misstated the issue being adjudicated, the Veteran had actual knowledge that the AMC had developed his claim and the merits of low back claim were discussed in the body of that SSOC. The Board finds that the Veteran is not prejudiced by the determination below. As such, the Board finds that there has been substantial compliance with the requested development, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran appealed the Board's denial of his increased rating claim to the United States Court of Appeals for Veterans Claims (Court). By order dated June 2013, the Court granted a Joint Motion for Partial Remand, vacated the Board's July 2013 denial of an increased rating claim, and remanded the case for compliance with the terms of the joint motion. In the Joint Motion, the parties agreed that the Board failed to consider whether the evidence of record suggested that the Veteran was unable to maintain "substantially gainful employment." In Rice v. Shinseki, the Court of Appeals for Veterans Claims (Court) held that a TDIU rating claim is part of an increased rating claim when such claim is raised by the record. See Id., 22 Vet. App. 447, 453 (2009). In September 2013, the Veteran reported that due to severity of his pes planus disability he was no longer able to work in the construction industry. Given the Veteran's various statements, an issue of TDIU has been raised by the record. Thus, the issues on appeal are as noted on the title page. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. 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 an increased rating for pes planus and entitlement to TDIU 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's current low back disorder, to include degenerative arthritis, was not first manifested in service or for more than a decade after his separation from service. 2. There is no competent and credible evidence linking the Veteran's current low back disorder, to include degenerative arthritis, directly to any aspect of his period of service. 3. The preponderance of the competent and credible evidence is against a finding that the Veteran's current low back disorder, including degenerative arthritis, is proximately caused or aggravated by his service-connected pes planus. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty 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, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, VA sent letters to the Veteran in March 2006 and August 2012 that addressed the notice elements concerning his claim for service connection. The letter informed the Veteran of what evidence is required to substantiate the claim, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. VA also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has obtained the Veteran's service treatment records as well as obtained any available pertinent records adequately identified by the Veteran. Despite repeated requests for apparently outstanding private treatment records, the Veteran has not authorized VA to obtain additional records on his behalf. VA also has provided the Veteran with VA spine examinations in April 2006, December 2010, and February 2013, and VA obtained a supplemental VA medical opinion in August 2013. Each of the VA examination reports shows that the examiner recorded the Veteran's reported medical history as well as the findings from clinical examination. Any deficiencies noted in the VA examination reports were addressed by the August 2013 VA examiner in the supplemental VA medical opinion report. The August 2013 supplemental VA medical opinion report shows that the examiner reviewed the claims folder, including the Veteran's reported history and the findings from the previous clinical evaluations, and then provided medical opinion, supported by rational statement, on the nature and etiology of the Veteran's claimed low back disorder. The Board finds that the August 2013 medical opinion is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the opinion expressed, in conjunction with the February 2013 examination, fulfills the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Id. In order to establish service connection on a direct basis, the record must contain: (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). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, a disability that is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. 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. Id. A disability which is aggravated by a service-connected disorder may be service connected, but compensation is only available for the degree to which that condition was made worse by the service-connected condition - only to the degree that the aggravation is shown. 38 C.F.R. § 3.310. In such a situation, VA laws require that the medical evidence must show a baseline level of severity of the nonservice-connected disease or injury, which is established by medical evidence created before the onset of aggravation. Id. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for low back disorder. In particular, he asserts that his low back disorder is secondary to his service-connected pes planus disability. He feels that the bilateral foot pain has progressed up his legs and aggravated his low back disorder. Although the Veteran does not assert (nor does the evidence of record show) that his current diagnosed low back disorder, degenerative arthritis, is directly related to service, or that it is entitled to presumptive service connection, the Board will first address the Veteran's claim for service connection on those bases. Again, the Board notes that in order to support an award of service connection on direct basis there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, the evidence of record clearly establishes that the Veteran has degenerative arthritis of the lumbar spine. However, the evidence of record does not show that the Veteran had degenerative arthritis of the lumbar spine in service, at separation, or until a decade after his discharge from service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection on a direct or a presumptive basis is not warranted. The Veteran's service treatment records show he complained of recurrent back pain on his January 1987 report of medical history, but clinical evaluation revealed a normal spine examination at that time. None of the subsequent service treatment records show complaints, treatment or diagnosis for any back related problems. The February 1990 examination report prior to separation shows the Veteran's spine was evaluated as normal, and on his associated medical history report, the Veteran denied that he experienced any recurrent back pain. In addition, the clinical evidence does not reflect, nor has the Veteran's provided lay statements to the effect that he has experienced symptoms of low back problems since service. Significantly, it was not until December 1999, almost a decade after the Veteran's discharge from service, that his VA treatment records show he complained of back problems. The treatment note shows that the Veteran sustained a back injury the night before when he had been assaulted by a police officer and the police offer had pressed his knee into the Veteran's back. Subsequent VA treatment records do not show findings of chronic low back disorder, degenerative arthritis, until April 2006, when the Veteran underwent a VA spine examination in conjunction with his claim. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Turning to the Veteran's primary assertion, entitlement to service connection on a secondary basis, the remaining question is whether the current low back disorder is proximately caused or aggravated by his service-connected pes planus. See 38 C.F.R. § 3.310. An April 2006 examiner opined that the pes planus and back disability were "entirely separate entities," but failed to provide a clear rationale, and did not clearly address the question of secondary aggravation. The December 2010 examiner repeated the conclusion verbatim, and so also failed to provide a rationale or consider aggravation. Neither examination is therefore assigned any probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The February 2013 VA examiner noted complaints of pain in the feet which progressed and radiated up to the back with prolonged walking or activity like climbing ladders. He opined that there is no clear connection between the Veteran's flat feet and his back disability. Medical literature does not suggest a link, and given the commonness of pes planus problems, there would be such evidence if a connection actually existed. The examiner also noted that the Veteran stated that no medical professional had told him a relationship existed; it was his opinion based on the fact that with activity he had pain in his feet first, and then later in the back. The examiner indicated this was merely a temporal relationship, not a causative one. Essentially, the prolonged activity caused pain in the feet and the back independently, with the feet painful first. The February 2013 VA examiner failed to review the claims file in conjunction with the examination, but considered an accurate history as reported by the Veteran. Nonetheless, to ensure compliance with the Board's remand directives, the file was submitted for a records review and nexus opinion by the AMC. In August 2013, a VA doctor affirmed the examiner's opinion following review of the claims file. She also expanded on the rationale offered. The medical literature does not indicate a causal link between the two conditions, and additionally the clinical findings were consistent with a normal and natural aging process; there was no aggravation of the back. Further, the pes planus was present in service, but was not reported to have caused any back problems at that time. In short, all the medical evidence of record is against the claim. While both pes planus and low back disabilities are diagnosed, there is no causal relationship, to include aggravation, between them. The Veteran has expressed his own lay opinion and belief that his pes planus is contributing to his low back problems. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the interplay between disabilities and biomechanics involved here falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). This is not a situation where the Veteran is reporting an observed cause and effect relationship, Layno v. Brown, 6 Vet. App. 465 (1994), the Veteran is applying analysis and reasoning which requires knowledge beyond the ken of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In contrast, a statement to the effect that "when I limp more, I get more back pain as I list to one side" would reflect observation and competent lay reasoning; no such statements are reflected here, and no altered gait or weight bearing are shown. His belief is based on the fact that foot pain manifests before back pain when he has both, but this does not account for any mechanism through which such could happen. The medical professionals have identified none, highlighting the Veteran's lack of expertise and qualifications. His belief, while sincerely held, is not competent nexus evidence. In sum, the competent evidence of record is against the claim; there is no doubt to be resolved. Service connection for a low back disorder is not warranted. ORDER Entitlement to service connection for a low back disorder, to include as secondary to pes planus disability, is denied. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the appellant's claims. A review of the record indicates that the Veteran's last VA examination for his service-connected pes planus was in December 2010. Since then, the Veteran has submitted a September 2013 private medical evaluation that indicates that his pes planus disability has worsened. Upon review, the Board finds that a more current examination is necessary to properly evaluate the severity of these conditions. The Board also notes that the VA treatment records demonstrate that the Veteran has been receiving continuous treatment for his service-connected disability at his local VA outpatient treatment facility. Given that the most recent VA outpatient treatment records are dated in 2010, a request for additional records must be made. Finally, as noted above, the Court has found that the record has raised a claim for a TDIU rating, as marginal employment is indicated. Rice v. Shinseki, supra. In light of Rice, the fact that a TDIU rating claim is inextricably intertwined with the increased rating claim and the fact that the Veteran has not received appropriate notice regarding the TDIU issue, the Board finds that the claim for a TDIU rating must also be remanded. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Inform the Veteran of the elements of a claim for a TDIU under 38 C.F.R. § 4.16; and permit him the full opportunity to supplement the record as desired. Any additional development, to include a request for a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, should be undertaken as necessary. 2. Obtain and associate with the claims file all outstanding records of VA treatment since 2010. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 3. Schedule the Veteran for a VA examination of the feet to ascertain the severity of his bilateral pes planus. His claims file should be available to and reviewed by the examiner in conjunction with the examination. All tests deemed appropriate should be performed including range of motion testing. The examiner must comment on the impact of the Veteran's bilateral pes planus disability on his occupational functioning, to include his ability to perform sedentary and heavy labor tasks. The examiner must discuss the rationale for all opinions expressed. If an examiner is unable to address any inquiry sought above, then he or she should explain why. 4. After accomplishing any additional development deemed appropriate, readjudicate the claims for increased rating for the service-connected pes planus and TDIU. The adjudication the TDIU claim should include consideration for a referral to VA's Director of Compensation and Pension (C&P) for consideration under 38 C.F.R. § 4.16(b) if the Veteran's service-connected disabilities do not satisfy the percentage requirements set forth in 38 C.F.R. § 4.16(a). If the benefits sought in connection with the claims remain denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. 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). ______________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs