Citation Nr: 1336991	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  10-17 358	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for bilateral plantar fasciitis and pes cavus.

2.  Entitlement to service connection for headaches, secondary to the service-connected lumbar spine disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse



ATTORNEY FOR THE BOARD

F. Yankey, Counsel


INTRODUCTION

The Veteran served on active duty from January 1983 to March 1984.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision on behalf of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which in pertinent part, denied service connection for headaches (shown as cluster/migraine headaches) and granted service connection for bilateral fasciitis and pes cavus, evaluated as 10 percent disabling effective July 31, 2008.

The Veteran testified before the undersigned at an August 2012 Travel Board hearing.  The hearing transcript is of record.  Following the hearing, he submitted additional evidence with a waiver of initial RO consideration.  See 38 C.F.R. § 20.1304 (2013).  

The issue of an increased initial rating for bilateral plantar fasciitis and pes cavus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if additional action is required on his part.


FINDING OF FACT

Headaches were not present in service or for years thereafter, and are not etiologically related to service or a service-connected disability.



CONCLUSION OF LAW

The Veteran's headaches were not incurred or aggravated during active duty, and are not proximately due to, the result of or aggravated by service-connected disability.  38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Pelegrini v. Principi (Pelegrini), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In an August 2008 letter, issued prior to the adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection.  The letter satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them.

The Veteran has substantiated his status as a veteran.  He was notified of all elements of Dingess, including the disability-rating and effective-date elements of the claim, in the August 2008 letter.

VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  

The Duty to Assist

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103S; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.1599(c)(4).

VA has obtained records of treatment reported by the Veteran, including service treatment records, and VA and private treatment records.  Additionally, the Veteran was provided an appropriate VA examination for his headaches in November 2008.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits.

Legal Criteria

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013).
Establishing service connection generally requires (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 disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303 (2013).

An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology.  38 C.F.R. § 3.303(b) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303(b) (2013).  The theory of continuity of symptomatology can be used only in cases involving those disabilities explicitly recognized as chronic.  38 C.F.R. § 3.309(a) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits.  38 U.S.C.A. 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1337 (Fed. Cir. 2006).

Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  Wilson v. Derwinski, 2 Vet. App. 16 (1991).  Once evidence is determined to be competent, the Board must then determine whether that competent evidence is also credible.  Competency is a legal concept determining whether testimony may be heard and considered, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Layno v. Brown, 6 Vet. App. 465 (1994)

Service connection may 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) (2013).

With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b) (2013).  However, that does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection may be granted for disability which is proximately due to or the result of service-connected disability.  38 C.F.R. § 3.310(a).  Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a).  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512-514 (1998).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).  

Analysis

The Veteran does not contend nor is there any medical evidence suggesting that his currently demonstrated cluster/migraine headaches were incurred during his active military duty.  Rather, he contends that they are directly related to his service-connected lumbar spine disability.  Specifically, he claims that he began experiencing migraine-type headaches, which he had never experienced before, in 1983, after his first lumbar spine surgery.  He has described the headaches as occurring in the frontal area or radiating up from the back of the neck and head to the top of the head, and behind the right eye.  See November 2008 VA examination report and August 2012 Travel Board hearing transcript.

Service connection is in effect for prolapsed disc, status postoperative, L5-S1 with spinal stenosis, L4-L5 with bilateral lower extremity radiculopathy, evaluated as 60 percent disabling from April 24, 2002.

Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to headaches, and the Veteran was not diagnosed with headaches at the time of his discharge.

The post-service medical evidence of record documents VA treatment as early as 2002 for what the Veteran reported as migraine-type headaches, caused by chronic low back pain, since lumbar spine surgery in 1983.  In addition, private treatment records from T.M., M.D. show that the Veteran was treated for headaches in February 2010, which Dr. T.M. determined were better classified as tension headaches.  He also noted that the Veteran's headaches were present at the time of his chemolysis, prior to his surgery.  These records do not indicate that the Veteran's headaches are related to his active military service or his service-connected lumbar spine disability.

During a May 2003 VA examination, the Veteran complained of low back pain and right leg symptoms for many years.  The examiner also noted his reports of chymopapain treatment for disc pathology in his low back in 1983, with no improvement, and lumbar spine surgery in 1992, with initial improvement until 2002, when his back pain worsened.  At the time of the examination, the Veteran complained of a history of daily headaches, which he believed were due to stress from his back.  He indicated that he was unable to explain the relationship between his back and his neck, but stated that a spine surgeon had previously informed him that he had problems in his neck and back, and therefore, he was under the impression that one problem had caused the other.  The examiner concluded that, based on the orthopedic literature as well as the information available to him, it was not likely that the Veteran's neck pain or symptoms were caused or exacerbated by his back problem or his military service.  He noted further that the Veteran did have abnormalities of his neck, but stated that he was unaware of any causal link between lumbar degenerative changes and/or disc pathology causing cervical degenerative changes.

During an August 2005 VA general medical examination, the Veteran complained of headaches, secondary to back pain.  He reported four types of headaches: a stress headache, an overuse of the back headache, a headache from lying in bed too long, and migraine-type headaches.  The examiner did not give an opinion on the etiology of the Veteran's reported headaches.

During a VA neurological examination in November 2008, the Veteran complained of headaches, secondary to muscular pain from his lumbar disc disease.  Specifically, he reported daily headaches occurring in the frontal area or radiating up from the back of the head to the top of the head, and also behind the right eye.  He also reported that one specific cause for his headaches had never been determined.  The examiner opined that the Veteran's headaches were most likely cluster/migraine headaches, and would not be related to his lumbar disc disease.  His rationale was that the paraverterbral muscles of the lumbar spine would not pinch the nerves in the neck, causing headaches.  There is no medical opinion against that of the VA examiner, and that opinion was based on an accurate history and supported by an implicit rationale; it is thus adequate.

The Veteran is competent to report the symptoms of his disability, and he has attributed his currently diagnosed headaches to his service-connected lumbar spine disability.  However, it would require medical expertise to say that the headaches, identified many years after service, were caused or aggravated by his lumbar spine disability.  The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his headaches.  38 C.F.R. § 3.159(a)(1),(2) (2013); Jandreau, supra.  

The only medical opinions of record addressing the claimed relationship between the Veteran's headaches and his service-connected lumbar spine disability are negative.  No competent medical opinion linking his headaches to service or his service-connected disability has been presented.  The VA examiners considered the Veteran's lay assertions in forming their medical opinions, but ultimately found that the Veteran's current headaches were not related to his service-connected disability.  Thus, the medical evidence of record is only against the Veteran's claim. 

In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  


ORDER

Service connection for headaches is denied.


REMAND

The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). 

The most recent VA examination in connection with the Veteran's service-connected bilateral plantar fasciitis and pes cavus disability, was conducted in November 2010.  The record contains evidence that the Veteran's disability may have worsened since that examination.  Specifically, during his August 2012 Travel Board hearing, the Veteran testified that he has flare-ups of pain in the feet; that his great toes dorsiflex and the other toes claw; that he experiences cramping and numbness in the feet and an electric shock-type feeling; that his gait has changed; that his arches are getting higher; and that he has calluses on the feet.  He also reported that his bilateral feet symptoms negatively affect his employment as a scuba instructor.  The Board notes that under Diagnostic Code 5284, a rating in excess of 10 percent is warranted for a moderately severe and severe foot injury, as well as actual loss of use of the foot.

VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate.  VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 

Given the evidence of increased symptomatology, a new VA examination is warranted to determine the current severity of the Veteran's service-connected bilateral plantar fasciitis and pes cavus disability.

The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  See 38 C.F.R. §§ 3.158 and 3.655 (2013).

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, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected bilateral plantar fasciitis and pes cavus disability.  The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum.  All indicated studies should be performed, and all findings necessary to rate the Veteran's bilateral plantar fasciitis and pes cavus disability under the appropriate rating criteria should be reported in detail.  

The examiner should specifically present clinical findings in the examination report with regard to the following: 

(a) Does the Veteran's bilateral foot disability result in marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities; or marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement or severe spasm of the Achilles tendon on manipulation not improved by orthopedic shoes or appliances?

(b) Does the Veteran's bilateral foot disability result in all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads; or marked contraction of the plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity?

(c) The examiner should comment on the extent of the Veteran's functional loss attributable to pain.

(d) The examiner should also provide an assessment of the overall severity of the service-connected bilateral foot disability, and state whether it is manifested by symptoms that would produce a level of impairment that can be characterized as moderate, moderately severe, or severe.

The examiner must comment on the Veteran's lay statements as to severity of the symptoms attributed to the bilateral foot disability.

The examiner should also provide an opinion concerning the impact of the service-connected disability on the Veteran's ability to work.

A complete rationale should be given for all opinions and conclusions expressed. 

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  

3.  Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this Remand. 

4.  Readjudicate the Veteran's appeal.  If the benefit sought on appeal is not granted, the originating agency should issue a supplemental statement of the case and allow an appropriate period for response thereto, before returning the case to the Board, if otherwise in order.

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. 2012).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs