Citation Nr: 1338257 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 12-00 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a chronic left foot disability, identified as bone spur and arthritis. 2. Entitlement to a rating higher than 10 percent for left ankle sprain. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to August 1978. These matters come to the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the Veteran's claim for service connection for left bone spur, claimed as left foot condition. The RO's decision also granted the Veteran's claim for service connection for a left ankle sprain and assigned an initial 10 percent rating. He appealed both issues. The Veteran testified at a Board videoconference hearing in March 2013 before the undersigned. A transcript of the hearing is associated with the claims file. 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). FINDING OF FACT Resolving any doubt in favor of the Veteran, his chronic left foot disability, identified as bone spur and arthritis, is etiologically linked to his active service. CONCLUSION OF LAW A chronic left foot disability, identified as bone spur and arthritis, was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination of the Veteran's service-connection claim for a left foot disability, no further discussion of compliance with VA's duty to notify and assist is necessary. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1137; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this case, the disorder at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a) (here, arthritis). Therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran contends that as a direct result of his military occupational specialty (MOS) of Field Wireman, in the U.S. Marine Corps, he developed bone spurs and later, a cyst, on the instep of his left foot. See March 2013 Board Hearing Transcript (Tr.) at 3; see also Veteran's reported history to the November 2009 VA examiner. He would prepare for combat roles by climbing telephone poles and stringing wire while wearing a steel-spiked apparatus called a "gaff," which repeatedly injured his left foot during the course of training. See March 2013 Board Hearing Tr. at 3. Specifically, he had to "jump great distances down the tree and down to the ground" while wearing the gaff device. Id. Although he claims he had these bone spurs and cyst surgically removed a few years after service, he nonetheless asserts he has had a progressively worse history of left foot symptoms since service, including pain, stiffness, fatigability, weakness and lack of endurance. See November 2009 VA examination report. Initially, the Veteran presently has a chronic left foot disability, identified as involving both a left foot bone spur. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). X-ray findings at the November 2009 examination as including degenerative changes of the left foot with significant degenerative changes at the first, second, and third tarsometatarsal joints; and also as hammertoe deformities of the second, third and fourth toes. The examiner then diagnosed his left foot disability as "left foot bone spur, residual pain." A review of his service treatment records is unremarkable for any treatment or diagnoses that would indicate any left foot bone spur or other relevant left foot disability (excluding a documented left ankle sprain in January 1975, as this is already compensated by the service-connected left ankle sprain). Nonetheless, the Board finds the Veteran's lay statements of in-service foot pain and injuries from jumping to the ground as a field wireman, while wearing a steel safety apparatus, to be both competent and credible evidence of in-service left foot injuries consistent with the later development of a bone spur, especially in the absence of any contravening evidence. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Consequently, the determinative issue is whether the current left foot disability is attributable to his military service. Shedden, 381 F.3d 1163. The claims file contains both negative and positive etiological opinions. The November 2009 VA examiner provided a negative nexus opinion. The examiner opined that the current left foot bone spur is less likely as not caused by or a result of service, reasoning that there was no complaint or documentation of a bone spur on the left instep in the service medical records. This rationale violates a principle of Buchanan, under which, the mere absence of documented treatment for pain during service and since, such as would be reflected in treatment records, cannot be the sole basis for concluding the Veteran has not continuously experienced these symptoms. See also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding that where a veteran has provided lay testimony of an in-service injury or event, and that lay testimony has not been rejected, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The examiner's improper rationale renders the negative opinion inadequate, especially since the examiner did not ultimately consider the Veteran's competent and credible lay testimony of in-service foot injuries. As such, the Board places little to no weight on this VA examiner's opinion. In contrast, the Veteran more recently submitted a June 2013 private medical opinion from foot surgeon, Dr. D.B. (D.P.M., P.C.), in support of his claim. Dr. D.B. opined that, "[b]ased on the examination of the patient, it is my feeling that the patient sustained severe, traumatic ankle and foot injuries due to his military service from an injury in 1975. His arthritic degeneration has deteriorated over the years exasperating his condition." Additionally in support of the claim, the Veteran provided competent and credible evidence of a continuity of progressively worsening left foot pain since active duty service, since his allegations appear to be uncontradicted. In view of the circumstances, the Board resolves all reasonable doubt in favor of the Veteran and finds that the evidence is at least in equipoise. As such, service connection for a chronic left foot disability is warranted. ORDER Service connection for a chronic left foot disability, identified as bone spur and arthritis, is granted. REMAND Additional development is required prior to adjudicating the Veteran's claim for a left ankle disability. The Veteran contends that the last VA examination in November 2009 inadequately assessed the degree of his left ankle pain and flare-ups of pain. See December 2011 substantive appeal and March 2013 Board Hearing Tr. at 7-8. The Veteran reported to the November 2009 VA examiner that he had severe, frequent (every 10 days) flare-ups of left knee pain, of long duration (3 to 7 days) such that he had difficulty walking or standing for long periods; but, the examiner failed to address any potential functional impairment due to flare-ups, particularly whether there was any additional limitation of motion during periods of flare-ups of left ankle pain. Notably, the Veteran indicated on his December 2011 substantive appeal (VA Form 9) that the examiner's recorded history of his flare-ups underrepresented the severity of his condition, because he actually suffered constant left ankle pain, with flare-ups on "multiple days per month of extreme pain" and "almost zero mobility." When VA undertakes to examine a Veteran, VA is obligated to ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, the Veteran testified that his left ankle disability is worse than when last evaluated at his November 2009 VA examination. See Board Hearing Tr. at 9. The AOJ should schedule another VA examination to evaluate the current severity of his left ankle disability, including appropriate findings regarding any functional impairment. See 38 C.F.R. § 3.327(a) (2013); VAOPGCPREC 11-95 (Apr. 7, 1995). Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for an appropriate VA examination to determine the nature and severity of his service-connected left ankle sprain disability. The claims file, to include any electronic records housed in Virtual VA and/or VBMS, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be performed and the results reported. Specifically, the examiner should undertake range of motion studies of the Veteran's left ankle disability. The examiner is asked to 1) describe whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time, 2) describe any such additional limitation due to pain, weakness, fatigability, or incoordination, and if feasible, this opinion should be expressed in terms of the degrees of additional range of motion loss due to pain on use or during flare-up, and 3 ) if such opinion providing such information is not feasible, please state so and provide an explanation as to why it the opinion regarding additional limitation during flare-up or when the joint is used repeatedly over a period of time cannot be rendered. The examiner should also describe the functional effects of the Veteran's disability, including on his occupational functioning and daily activities. A complete rationale should be given for all opinions and conclusions expressed. 2. Readjudicate the remaining issue, in light of all evidence of record. If the benefit sought on appeal remains denied, provide the Veteran with a Supplemental Statement of the Case and afford him a reasonable opportunity to respond. Return the case to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ PAUL SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs