Citation Nr: 1533255 Decision Date: 08/05/15 Archive Date: 08/11/15 DOCKET NO. 11-07 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable rating for disc disease of the thoracolumbar spine. 2. Entitlement to an initial compensable rating for patellofemoral syndrome of the left knee. 3. Entitlement to an initial compensable rating for exercise induced compartment syndrome of the right leg. 4. Entitlement to an initial compensable rating for exercise induced compartment syndrome of the left leg. 5. Entitlement to an initial compensable rating for headaches. 6. Entitlement to an initial compensable rating for allergic rhinitis. 7. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) with hiatal hernia. 8. Entitlement to service connection for a cervical spine disability. 9. Entitlement to service connection for a right knee disability. 10. Entitlement to service connection for a right foot disability. 11. Entitlement to service connection for a fungal infection of the left great toe, claimed as a left foot disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from July 1989 to July 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2009 of a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. This appeal was processed using the Virtual VA and VBMS (Veterans Benefits Management System) paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. During the May 2015 Board hearing the Veteran clarified that her claim of entitlement to service connection for her left foot disability was limited to the fungal infection of the left great toe. The issue has thereby been recharacterized as indicated on the title page. In May 2015, the Veteran filed the following claims: an increased rating for nephrolithiasis, service connection for a sleep condition, service connection for sciatica secondary to disc disease of the thoracolumbar spine, and entitlement to a temporary total rating based on hospitalization on March 28, 2014 and May 15, 2014, for kidney surgeries. These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). With the exception of the issue of service connection for a fungal infection of the left great toe, the other issues on the title page are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's fungal infection of the left great toe was incurred during her active service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for a fungal infection of the left great toe are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). In light of the favorable determination to grant service connection for a fungal infection of the left great toe, which is the only issue being decided herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide this issue. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to provide service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records on multiple occasions show that the Veteran was treated for toe nail fungus, separation of nailbeds, onychomycosis, and dermatophytosis of the nail, See service treatment records dated in September 1997, March 2007, December 2006, and December 2008. The Veteran testified that the fungal infection of the left great toe has continued since service. She states that during pedicures a fake nail is put over her toe, and that her natural nail is prone to fall off. Her testimony is competent as the fungal/toe infection is the type of condition that lends itself to lay observation. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). She is certainly competent to state that the toe nail fungus that she experiences today is similar to the one she suffered in service. The undersigned also found her testimony to be credible Such means that the Veteran has presented competent and credible evidence of a chronic toe fungus disability that has existed from service to the present. For reasons addressed above, after resolving all doubt in the Veteran's favor, service connection for a fungal infection of the left great toe is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a fungal infection of the left great toe is granted. REMAND In May 2015, the Veteran testified that her service-connected thoracolumbar spine disability, left knee disability, exercise, induced compartment syndrome of both legs, headaches, allergic rhinitis, and GERD with hiatal hernia increased in severity since her pre-discharge examination in February 2009. The Court has held that a veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Thus, in the instant case the Veteran should be afforded a VA examination to determine the current level of severity of her service-connected disabilities. As for the claims of service connection for a cervical spine disability, right foot disability, and right knee disability, the Veteran and her husband testified that these disabilities developed over time due to the rigors of her 20 years of active service. The Veteran stated that she pulled something in her neck during service and was currently treated for neck problems that were associated to her service-connected headaches. She also claimed that she injured her right foot during physical training. Service treatment records show that in September 1993 the Veteran was treated for a right knee strain and in January 2005 for neck pain secondary to muscle tightness. VA treatment records in January 2013 show she wore knee braces. Thus a VA examination is warranted as the Veteran is competent to describe her current symptomatology, there is evidence suggesting that she may have a cervical spine disability, right foot disability, and right knee disability that may be related to service; and insufficient competent evidence of file to decide the claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lastly, prior to obtaining any opinion, the Veteran's assistance should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with her assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified. 2. Afterwards, the AOJ should have the Veteran scheduled for VA examination to assess the current severity of the service-connected disc disease of the thoracolumbar spine. The electronic files on Virtual VA and VBMS should be made available to and reviewed by the examiner in connection with the examination. All indicated tests and studies should be performed. The examiner is asked to describe the following: a.) Range of motion of the thoracolumbar spine in degrees to include forward flexion, extension, left and right lateral flexion, left and right lateral rotation, and any functional loss due to pain or painful motion (supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion) as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. Any additional functional loss should be expressed in terms of additional limitation of motion. The examiner should also address whether there is additional loss of motion associated with flare-ups or on repetitive use. b.) The examiner should comment on whether there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour or, vertebral body fracture with loss of 50 percent or more of the height; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis reversed lordosis, or abnormal kyphosis. The examiner should indicate whether there is favorable or unfavorable ankylosis of the thoracolumbar spine or unfavorable ankylosis of the entire spine. c.) The examiner is asked to describe any objective neurological abnormalities, either motor or sensory. The examiner should report all neurologic impairment resulting from the service-connected thoracolumbar spine and whether such abnormalities cause complete or incomplete paralysis, neuritis or neuralgia of any nerve. If there is incomplete paralysis, neuritis, or neuralgia of any nerve, the examiner should identify the nerve affected and describe such paralysis as mild, moderate, moderately severe, or severe. d.) The examiner is asked to describe the frequency and duration of any incapacitating episodes due to the thoracolumbar spine disability, requiring bed rest prescribed by a physician and treatment by a physician, over a 12 month period. 3. The AOJ should have the Veteran scheduled for VA examination to assess the current severity of the service-connected patellofemoral syndrome of the left knee. The electronic files on Virtual VA and VBMS should be made available to and reviewed by the examiner in connection with the examination. All indicated tests and studies should be performed. a.) The evaluation of the left knee should include all necessary testing, specifically range of motion studies. The examiner should address the range of motion in degrees of flexion and extension and any functional loss due to pain or painful motion as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. The examiner must address at what point pain sets. Any additional functional loss should be expressed in terms of additional limitation of motion. The examiner should also address whether there is additional loss of motion associated with flare-ups or on repetitive use. The examiner should determine whether there is instability or recurrent subluxation of the right knee; and if so, this determination should be expressed in terms of slight, moderate, or severe due to either the lateral instability or recurrent subluxation. b.) The examiner must also address whether there is ankylosis, dislocated semilunar cartilage in the left knee and whether there is effusion, whether the knee locks and if so the frequency of the locking. 4. The AOJ should have the Veteran scheduled for VA examination to assess the current severity of the service-connected exercise induced compartment syndrome of both legs. The electronic files on Virtual VA and VBMS should be made available to and reviewed by the examiner in connection with the examination. All indicated tests and studies should be performed. The examiner is requested to delineate all symptomatology associated with these disabilities. The appropriate DBQs should be filled out for this purpose, if possible. The examiner should specifically note the bilateral leg disability has on dorsiflexion/extension of the toes and on stabilization of the arch. The examiner must indicate whether the disabilities cause slight, moderate, moderately severe, or severe impairment. All special tests and examinations deemed necessary to fully evaluate the Veteran's disability must be undertaken. The examiner should provide a complete rationale for all opinions provided. If he or she is unable to provide an opinion without resorting to speculation or conjecture, he or she should so state and explain the reason therefor. 5. The AOJ should have the Veteran scheduled for VA examination to assess the current severity of the service-connected headaches. The electronic files on Virtual VA and VBMS should be made available to and reviewed by the examiner in connection with the examination. All indicated tests and studies should be performed. The examiner should present clinical findings in the examination report with regard to the following: a.) Is the Veteran's headache disorder currently manifested (best approximated) by characteristic prostrating attacks averaging one in 2 months over the last several months? b.) Is the Veteran's headache disorder currently manifested (best approximated) by characteristic prostrating attacks averaging once a month over the last several months? c.) Is the Veteran's headache disorder currently manifested (best approximated) by very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability? The examiner should provide a complete rationale for all opinions provided. If he or she is unable to provide an opinion without resorting to speculation or conjecture, he or she should so state and explain the reason therefor. 6. The AOJ should have the Veteran scheduled for VA examination to assess the current severity of the service-connected allergic rhinitis. The electronic files on Virtual VA and VBMS should be made available to and reviewed by the examiner in connection with the examination. All indicated tests and studies should be performed. The examiner should report all signs and symptoms necessary for rating the Veteran's allergic rhinitis. In particular, he or she should indicate whether the Veteran has polyps and whether there is a greater than 50 percent obstruction of the nasal passage on both side or complete obstruction on one side. The examiner should provide a complete rationale for all opinions provided. If he or she is unable to provide an opinion without resorting to speculation or conjecture, he or she should so state and explain the reason therefor. 7. The AOJ should have the Veteran scheduled for VA examination to assess the current severity of the service-connected GERD with hiatal hernia. The electronic files on Virtual VA and VBMS should be made available to and reviewed by the examiner in connection with the examination. All indicated tests and studies should be performed. The examiner should present clinical findings in the examination report with regard to the following: Whether the Veteran has recurrent epigastric distress with dysphagia; pyrosis; regurgitation; substernal or arm or shoulder pain, productive of considerable impairment of health; pain; vomiting; material weight loss; hematemesis; melena; anemia; or, any other symptom combinations productive of severe impairment of health. The examiner should provide a complete rationale for all opinions provided. If he or she is unable to provide an opinion without resorting to speculation or conjecture, he or she should so state and explain the reason therefor. 8. The AOJ should have the Veteran scheduled for a VA examination by an appropriate examiner to determine the nature and etiology of her claimed cervical spine disability, right knee disability and right foot disability. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder and examining the Veteran the examiner must: a.) Identify/diagnose all current cervical spine, right knee, and right foot disabilities. b.) For each identified disability of the cervical spine, right knee, and right foot the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that it was incurred during service. The examiner is asked to consider service treatment records that show that in September 1993 the Veteran was treated for a right knee strain and in January 2005 for neck pain secondary to muscle tightness. The examiner is asked to address the Veteran's contentions that the rigors of her 20 years of service, to include routinely carrying 60 pounds, running, and jumping caused her cervical spine, right knee, and right foot problems to develop over time. See May 2015 Board hearing testimony. c.) For each identified cervical spine disability, the examiner should opine whether it is at least as likely as not (50 percent probability or more) that it was caused or aggravated by the service-connected headaches. A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion he or she should explain why. 9. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs