Citation Nr: 1516749 Decision Date: 04/20/15 Archive Date: 04/24/15 DOCKET NO. 12-24 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected disabilities. 3. Entitlement to service connection for a low back disability, to include as secondary to service-connected disabilities. 4. Entitlement to an evaluation in excess of 30 percent for the service-connected postoperative bunionectomy, rigid pes planus; arthrosis, proximal interphalangeal joint (hereinafter "foot disability"). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to October 1975 and from September 1977 to August 1990. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from March 2009 and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board notes that with regard to the claim for a back disability denied by the RO in September 2012, a notice of disagreement was filed in August 2013. A statement of the case was issued in November 2014. VA Form 21-4138, Statement in Support of Claim, received in November 2014 is accepted as a substantive appeal and thus, the matter is properly before the Board at this time. 38 C.F.R. § 20.202. The claim pertaining to increased evaluation for the service-connected foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran's bilateral knee, bilateral hip, and low back disabilities are proximately due to, or the result of, the service-connected foot disability. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, the criteria for service connection for a bilateral knee disability as secondary to the service-connected foot disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014). 2. By extending the benefit of the doubt to the Veteran, the criteria for service connection for a bilateral hip disability as secondary to the service-connected foot disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014). 3. By extending the benefit of the doubt to the Veteran, the criteria for service connection for a low back disability as secondary to the service-connected foot disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for bilateral hip, bilateral knee, and low back disabilities, which represents a complete grant of the benefits sought on appeal. Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. The Board has reviewed all the evidence in the Veteran's virtual record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran is claiming entitlement to service connection for low back, bilateral hip, and bilateral knee disabilities. Specifically, he contends the conditions are the result of his service-connected foot disability. Among other various diagnoses, the Veteran has been diagnosed with degenerative joint disease of the hips, knees, and lumbar spine. The question of whether the Veteran has current hip, knee, and low back disabilities is not in dispute. What is in dispute however is whether such disabilities had their onset in service or are otherwise causally or presumptively related to the Veteran's service or a service-connected disability. After review of the evidence, the Board finds service connection must be granted on a secondary basis because the preponderance of the evidence is in favor of such a finding. Notably, the negative etiology opinions of record are as follows. The January 2009 and May 2010 VA examiners opined bilateral hip and knee conditions were less likely as not caused or aggravated by the foot disability as the problems were more likely due to aging. In August 2012, the VA examiner opined that the Veteran's back condition was less likely secondary to his foot disability and more likely due to aging, obesity, and a history of tobacco abuse. The Board finds that the probative value of the VA opinions diminish in light of the positive etiology opinions of record. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the credibility and weight to the attached medical opinions are within the province of the Board). In contrast to the VA examination reports, the Veteran's VA physician indicated in September 2008 VA that the Veteran developed traumatic arthritis and compensated for his flat foot condition when standing and ambulating, which caused pain upward to the knees and hips. An August 2009 VA treatment provider opined the Veteran's foot disability was more likely than not affecting his knees and hips. The provider further indicated that it was not likely that the Veteran's arthritic disease and tendonitis was due to aging as the Veteran symptoms began in his early forties. The Veteran had no history of participating in traumatic/contact sports or severe trauma. The only possible contributing factor to the abnormalities seen in the hips and knees would be the long standing pes planus which had been worsening over the years affecting his gait, knees, hips, and low back. In March 2011 Dr. GRW, an orthopaedic surgeon specializing in spinal disorders and orthopaedic trauma, opined the Veteran's feet problems and altered gait had more probable than not exacerbated the condition in his spine (degeneration of the lumbar spine). In September 2011, Dr. GRW opined it was more likely than not that the Veteran's degenerative low back condition was associated with the service-connected pes planus. Dr. GRW reasoned that gait alterations affected the back, leading to the enhanced low back degenerative state. In May 2012, the Veteran' VA physician opined, based on medical research and review of the record, the Veteran's back condition, documented since 1993, was more likely than not caused by his flat feet. The VA physician reasoned that risk factors from his medical conditions were the main contributors to his condition as opposed to his age and weight as stated by the VA examiners. The physician explained that the Veteran's condition first began in the early 1990's when his age and weight were not a factor. The physician noted as the Veteran's foot condition became worse, his weight became an issue since he was no longer able to participate in physical activity due to degenerative disease and pain. A February 2013 letter from MRC, D.C., indicated the Veteran was treated for chronic low back pain radiating down the left leg and bilateral knee and hip pain. MRC opined such pain was the direct result of the Veteran's foot disability. He noted the Veteran had gone through a number of surgical procedures because of his original pes planus problems and that his pains and current joint conditions were the result of over compensation by the body due to the adverse effect of the pes planus. MRC concluded that the Veteran's low back and bilateral hip and knee conditions were more likely than not the direct result of his service-connected pes planus. MRC further indicated that the Veteran's foot disability was also the etiology of a secondary condition in which his daily activity caused aggravations and constant pain to his back, hips, knees, and feet. In November 2014, MRC indicated he reviewed the medical records of the Veteran, to include reports of VA examination. MRC indicated that the Veteran's service-connected foot disability altered the Veteran's lower extremity biomechanics and thus, effected his ability to ambulate, which placed greater stress and strain to the joints of his knees, hips, and back. He stated that as a result of the difficulty walking and standing, the Veteran would sit for periods of time, which placed greater stress on an already weak and bulging annulus. Thus, it was the likely cause of the current degenerative disc disease, as well as degenerative joint disease. MRC concluded that the Veteran's present physical disabilities (back, knees, and hips) were the direct consequence of his original service-connected bilateral pes planus. Resolving any doubt in the Veteran's favor, service connection for low back, bilateral hip, and bilateral knee disabilities is warranted. 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a bilateral knee disability as secondary to the service-connected foot disability is granted. Entitlement to service connection for a bilateral hip disability as secondary to the service-connected foot disability is granted. Entitlement to service connection for a low back disability as secondary to the service-connected foot disability is granted. REMAND Further development is necessary prior to a merits analysis of the Veteran's claim of entitlement to an evaluation in excess of 30 percent for the service-connected foot disability. In his February 2015 Board hearing, the Veteran testified that his foot disability had worsened in severity. Specifically, he asserts that the disability is productive of pain, numbness, swelling, sensitivity to touch, and an altered gait. He also testified that his foot condition has resulted in extensive nerve damage (for which he takes Gabapentin) and tarsal tunnel syndrome. He indicated that he used a cane, as well as corrective shoes. The last VA examination was in August 2012, over two years ago. The Board cannot ascertain to what extent the disability has increased in severity, if at all, without a new VA examination. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, where there is evidence of a material change in the Veteran's condition or as in the instant case, when the Veteran asserts that the service-connected disability in question has undergone an increase in severity since the time of his last VA examination, the prior VA examination report may be inadequate for rating purposes and a new VA examination is required. 38 C.F.R. § 3.327(a); See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). The RO should ensure that all due process requirements are met, to include giving the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the severity of his foot disability. All indicated tests or studies must be completed. (A) Examination findings pertinent to the Veteran's feet should be reported to allow for application of VA rating criteria for genitourinary disorders. (B) The examiner is asked to address the Veteran's contentions that he has developed nerve damage and tarsal tunnel syndrome as a result of the service-connected foot disability. (C) Please discuss the functional limitations, if any, associated with, and expected effect on employment resulting from the Veteran's service connected foot disability alone (not including the effects of any non-service connected disabilities). 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record, to include evidence added after the November 2014 supplemental statement of the case was issued. The RO should also consider whether a total rating for compensation based on individual unemployability (TDIU) is warranted as part of the claim for increased benefits. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran 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 2014). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs