Citation Nr: 1400286 Decision Date: 01/06/14 Archive Date: 01/23/14 DOCKET NO. 07-30 937A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a lower back disability, to include as secondary to service-connected right ankle tendonitis. 2. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected right ankle tendonitis. 3. Entitlement to an increased rating for right ankle tendonitis, currently rated 10 percent disabling. 4. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to September 1980 and from January to May 1991. These matters came before the Board of Veterans' Appeals (Board) from October 2005 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Milwaukee, Wisconsin and Chicago, Illinois, respectively. In the October 2005 decision, the RO, in pertinent part, denied entitlement to service connection for left Achilles tendonitis, flexor hallucis longus tendonitis and peroneus brevis tendonitis, and denied entitlement to an increased (compensable) rating for right ankle tendonitis. Jurisdiction over the Veteran's claims was subsequently transferred to the RO in Chicago, Illinois. In the April 2008 decision, the RO, in pertinent part, denied entitlement to service connection for lower back and entitlement to a TDIU. In a November 2012 rating decision, the RO assigned a 10 percent disability rating to right ankle tendonitis, effective May 20, 2005, the date of receipt of the increased rating claim. Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). In April 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO and a transcript of that hearing has been associated with her claims folder. In her October 2007 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing). However, in her November 2010 substantive appeal she indicated that she did not wish to attend a Board hearing. In May 2011, the Board sent the Veteran a letter and asked her to indicate whether or not she wanted to attend a Board hearing. She subsequently responded that she did not wish to have a hearing. These matters were remanded by the Board in June 2011 and June 2013 for further development. In September 2013, the Veteran submitted additional evidence in support of her appeal and waived Agency of Original Jurisdiction (AOJ) review per 38 C.F.R. § 20.1304(c) (2013). The issues of entitlement to service connection for bilateral foot disability; entitlement to an increased rating for right ankle tendonitis; and, entitlement to a 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. VA will notify the Veteran if any further action is required on her part. FINDING OF FACT A lower back disability was not manifested in service, is not otherwise related to service, and was not caused or permanently worsened by a service-connected disability. CONCLUSION OF LAW A lower back disability was not incurred or aggravated during active duty service, nor is a lower back disability proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); and implemented by regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) has held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, VA satisfied its duties to the Veteran in a VCAA letter issued in December 2007. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate her claim of service connection, what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA. Thereafter, additional VCAA notice was issued to the Veteran in June and July 2013, to include notice of how VA determines disability ratings and effective dates. While acknowledging that such notice was issued subsequent to the initial adjudication, the Veteran's claim has been readjudicated in a supplemental statement of the case and, in any event, as the instant decision denies service connection, no disability rating or effective date will be assigned. Thus, there is no prejudice to the Veteran and no further duty to notify is necessary. VA has complied with all assistance requirements of the VCAA, to include substantial compliance with the Board Remands. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records, VA outpatient treatment records, private treatment records, records from the Social Security Administration (SSA) and lay statements and testimony of the Veteran. The Veteran has not identified any relevant post-service medical evidence pertaining to the issue being addressed in this decision. The Veteran has undergone VA examinations with regard to back issue which will be discussed below. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the back issue on appeal. Criteria & Analysis Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection will also be conceded if a chronic disease is identified in service and at any time thereafter. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (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. Savage, 10 Vet. App. at 495-9; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The rating activity is to determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records indicate that in February 1978 the Veteran was treated for back pain and was diagnosed as having muscle pain. She was also treated for back pain in July 1978 and was diagnosed as having a possible strain. An April 1981 service treatment record reflects complaints of back pain located in the lower part of the back for four days. The assessment was tension or back muscle. In July 1984, the Veteran complained of back and ovary pain. No specific assessment was made but she was instructed to apply moist heat to the area, take Tylenol, and avoiding lifting, pushing, or pulling over 20 pounds for 72 hours. On July 1980, May 1987, May 1991, March 1998 Reports of Medical History, the Veteran checked the 'No' box for 'recurrent back pain.' Reports of Medical Examinations dated in July 1980, May 1987, May 1991, March 1998 reflects that her 'spine, other musculoskeletal' was clinically evaluated as normal. The Veteran has been diagnosed as having various lower back disabilities. For example, a February 2010 VA treatment record indicated diagnoses of chronic lower back pain and lumbar spinal stenosis. The Veteran has variously asserted that her back disabilities are due to in-service injury or caused, or aggravated, by her service-connected right ankle tendonitis. Thus, there is evidence of a current lower back disability and in-service lower back problems. The Veteran was afforded a VA examination for a lower back disability in June 2010, at which time her claims file was not available for review by the physician who conducted the examination. The Veteran reported that she began having back pain in 2005 and at that time she was told she had "arthritis" and the diagnosis of spinal stenosis was made. She was diagnosed as having lumbar spinal degenerative disc disease and the examiner opined that the lower back disability was not likely ("less likely than not") related to the service-connected right ankle tendonitis. The examiner reasoned that there was no clinical evidence of a history of lower back problems, the Veteran reported that her lower back pain began in 2005, and there was no medical literature to support a conclusion that ankle tendonitis could cause spinal stenosis. In the June 2011 Board Remand, it was determined that the June 2010 opinion was inadequate for several reasons. Since the Veteran's claims file was not available for review, the examiner's opinion was, at least in part, based on an inaccurate history. Although the examiner reasoned that there was no clinical evidence of a history of back problems and noted only that the Veteran reported that her back pain began in 2005, medical records do reflect instances of treatment for lower back problems prior to 2005. For example, as detailed hereinabove, she complained of back pain in April 1981 and July 1984 during her reserve service. As the examiner's opinion was based on an inaccurate history, it is not adequate. Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The June 2010 opinion was also essentially limited to whether the lower back disability was "caused" by the service-connected right ankle disability. However, service connection may be granted for a disability that is "aggravated" by a service-connected disability, provided there is medical evidence created prior to the aggravation that shows a baseline for the non-service connected disability. 38 C.F.R. § 3.310(b). In August 2011, the Veteran underwent another VA examination. The Veteran reported that during service in 1978 she was carrying a heavy pack during training and began having some pain in her low back, which was nonradicular in nature. She reported being seen for muscle strain. She stated that during the course of her time in service, on at least approximately 10 other occasions, she went on sick call because of pain in her low back. Each time the pain was confined to the lumbar area, was nonradicular in nature, and she was given anti-inflammatories. Following her first period of active service, she was a housewife and had two children. She returned to the work force with a desk job for two years and thereafter worked as an inspector for a production line, at UPS preloading trucks, and at a candy factor. She worked 8 years in a plastic company doing quality control and her last job was doing motorcycle assembly. She has been unemployed since 2006. She denied seeking any post-service treatment related to the lumbar spine. On one occasion she went to bend over to pick up her child and had acute low back pain. In the last five years, she has had increasing back pain and has been treated for spinal stenosis. Upon physical examination, the examiner opined that her spinal stenosis of the lumbar spine is not due to service. The examiner stated that there is no evidence that the Veteran had any spinal stenosis while in service or within one year after service. The examiner stated that there is no nexus of complaints of spinal stenosis while she was in the service or immediately after the service. The diagnosis of spinal stenosis was made in 2005. With regard to secondary service connection, the August 2011 VA examiner opined that her right ankle tendinitis did not cause the spinal stenosis. The examiner commented that her gait was not abnormal, nor was spinal stenosis at all related to tendinitis of the right ankle. The examiner stated that the literature was quite clear on this. While the Board accepts this opinion as probative with regard to whether her spinal stenosis is proximately due to her right ankle tendinitis, the examiner did not provide an opinion as to whether the Veteran's spinal stenosis is aggravated by her right ankle tendinitis. Thus, the matter was remanded to obtain an opinion regarding aggravation. In June 2013, a VA examiner reviewed the claims folders and opined that the Veteran's back condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner explained that spinal stenosis was a degenerative process which was not related to Achilles tendonitis. They were separate conditions and one did not cause or worsen the other. Analysis The Veteran did experience back symptomatology during her first period of active service (January 1978 - September 1980) in 1978, and did complain of back pain in 1981 and 1984. Hence, an in-service injury is demonstrated. The record clearly documents a current back disability. The question is whether there is a link between the current disability and service or to a service connected disability. The remaining service treatment records are negative for any complaints or diagnoses. As detailed, examinations conducted by trained medical personnel in 1980, 1987, 1990 and 1998 did not reflect any back symptoms or diagnoses; nor were any pertinent complaints reported. There are no records of any back complaints or diagnoses during her second period of active service (January-May 1991). Likewise, the Veteran specifically denied any back pain on Reports of Medical History dated in 1980, 1987, 1990, and 1998, which were completed after she had her initial back pain in 1978 and subsequent back pain in 1981 and 1984. Thus, while it was clear that the Veteran experienced back symptomatology in the late 1970's and early 1980's, service records were against a finding of continuity of symptomatology. Any assertions from the Veteran that she suffered from continuous back symptoms since her first period of active service were less than credible as the contemporaneous service records reflect specific denials from the Veteran on subsequent reports. Despite the complaints of back pain in the 1970's and early 1980's, these records do not reflect any chronic problems or diagnoses and the Veteran specifically denied recurrent back problems on in-service reports. Moreover, a chronic back disability was not diagnosed until many years after her separation from her second period of active service. Likewise, the Veteran told the August 2011 VA examiner that she had only started to experience increasing back pain the last five years wherein spinal stenosis was diagnosed. The lack of any complaint or clinical treatment for a chronic back disability for many years after service weighs against a finding that a chronic disability was present during service or in the years following service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Absent evidence of ongoing back symptomatology for a chronic condition following her first period of active service, the evidence is against a finding a continuity of symptomatology. Moreover, as detailed, the August 2011 VA examiner, considered the lay and medical evidence, and opined that the Veteran's spinal stenosis was not due to service. Thus, while it is clear that the Veteran experienced back symptomatology during her first period of active service and shortly thereafter, the probative medical evidence, specifically a VA opinion by a medical doctor, who had the opportunity to review the entirety of the medical and lay evidence of record and who provided a clear rationale in support of the conclusion, is entitled to more probative weight. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's direct service connection claim. See Owens v. Brown, 7 Vet. App. 429 (1995). There is no contrary opinion of record. With regard to any relationship between her spinal stenosis and right ankle, as detailed, the August 2011 VA examiner opined that her spinal stenosis was not caused by her right ankle tendinitis, basing this opinion on her lack of an abnormal gait and medical literature. Likewise, the June 2013 VA examiner opined that her back condition is not due to her ankle tendinitis. The VA examiner reasoned that spinal stenosis was a degenerative process which was not related to Achilles tendinitis, and they were separate conditions which did not cause or worsen the other. Interpretation of this opinion is that the June 2013 VA examiner found that the Veteran's spinal stenosis is not due to or aggravated by her Achilles tendinitis. The Board finds that the collective opinions are probative as they are based on review of the evidence of record and contain appropriate rationale. Id. Moreover, there is no contrary opinion of record. While the Board has given consideration to the lay evidence from the Veteran, she does not have the requisite medical expertise to say that chronic back disability demonstrated years after service is due to in-service complaints many years prior, or that any disability is due to a service-connected disability. Her opinions in this regard are not competent. In conclusion, there is no support for a grant of service connection for the lower back disability. In reaching this conclusion, 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 in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for lower back disability is denied. REMAND Bilateral foot disability In June 2013, the Veteran underwent a VA examination with the same VA examiner who conducted an October 2012 VA examination that the Board had found to be inadequate. Upon physical examination, the examiner diagnosed Morton's neuroma. In one opinion, the examiner stated that current bilateral foot disability was less likely than not due to service. The examiner's rationale was that there is no documentation of a continuum of care from service until now and there is no documentation of a worsening or aggravation that could be attributed to the service. Again, the examiner failed to address the bilateral foot diagnoses reflected in the medical records, and the statement "until now" is vague as bilateral foot conditions are reflected prior to the Veteran undergoing the June 2013 VA examination. In another opinion, the examiner stated that Morton's Neuroma is not the result of a service-connected condition with the rationale that there is no medical connection between Morton's Neuroma and Achilles tendonitis. Again, the examiner failed to address the bilateral foot diagnoses reflected in the medical records. In another opinion, the examiner checked the box indicating that bilateral foot condition which clearly and unmistakably existed prior to service was not clearly and unmistakably aggravated beyond its natural progression. The examiner stated that there is no medical evidence that tendonitis makes Morton's Neuroma worse. It is unclear the basis for the examiner's findings that any bilateral foot condition preexisted service as such conflicts with prior opinions and the medical evidence of record. For these reasons the examination is not adequate. Right foot tendonitis In June 2013, the Veteran underwent a VA examination. The examiner checked the "Yes" box indicating that the Veteran has flare-ups which impact the function of the ankle and she experiences occasional pain. The examiner did not express an opinion as to whether there was additional limitation of motion during the flare-ups. Cf. DeLuca v. Brown, 8 Vet. app. 202, 206 (1995) 38 C.F.R. §§ 4.40, 4.45. TDIU The Veteran's claim of entitlement to a TDIU is inextricably intertwined with the service connection and increased rating issues being remanded, and thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with a physician with appropriate expertise (who preferably has not previously examined her) to determine whether her current bilateral foot disability is related to a disease or injury in service, or a service connected disability. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to the following: a) whether it is at least as likely as not (50 percent probability or more) that the Veteran's current bilateral foot disability and any disability diagnosed since June 2005 had its onset in service or in the year immediately after service, is related to her in-service foot problems or the use of combat boots, or is otherwise the result of a disease or injury in service. b) whether current bilateral foot disability and any disability diagnosed since June 2005 is at least as likely as not (a 50 percent or higher degree of probability) proximately due to a service-connected disability, to include right foot tendonitis; c) whether current bilateral foot disability and any disability diagnosed since June 2005 is at least as likely as not (a 50 percent or higher degree of probability) has undergone a permanent increase in its severity due to a service-connected disability, to include right foot tendonitis. The examiner should quantify the amount of any aggravation, if possible. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 2. The Veteran should be scheduled for a VA examination with a physician with appropriate expertise (who preferably has not previously examined her) to assess her right ankle, tendonitis. It is imperative that the claims file be made available to the examiner in connection with the examination. The examination report should comply with all AMIE protocols for rating ankle disabilities. The examiner should comment on whether there is limited motion which is marked or moderate and the presence of any ankylosis. The examiner should report the extent of any additional limitation of motion due to pain, incoordination, weakened movement excess fatigability and flare-ups. The Veteran is competent to report the extent of limitation of motion during flare-ups. The examiner should provide an opinion as to the severity of any associated foot disability. 3. If the claims are not granted in full, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran and her representative have 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs