Citation Nr: 1636685 Decision Date: 09/20/16 Archive Date: 09/27/16 DOCKET NO. 12-24 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for spider bite residuals of the left lower extremity. 2. Entitlement to service connection for a left lower extremity disability, to include of the ankle and foot. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant, Spouse ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The appellant served in the Army National Guard on active duty for training (ACDUTRA), as relevant herein, from August 9, 1997 to August 23, 1997 and from June 9, 2007 to June 23, 2007. See October 1997 DA Form 2173 (Statement of Medical Examination and Duty Status); December 2007 Army National Guard Retirement Points Statement. Of record is a DD 214 noting service from January 1989 to June 1989, but this form noted for type of separation "Relief from Active Duty Training" and a narrative reason of separation of "[c]ompletion of period of [active duty training]" and therefore this was also a period of ACDUTRA. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Subsequent to the May 2010 rating decision, the appellant submitted new and material evidence in June 2010, to include a June 2010 private medical statement from Dr. D.H., and the Agency of Original Jurisdiction (AOJ) issued an October 2010 rating decision. In light of the new and material evidence received within the one year appeal period following the May 2010 rating decision, that rating decision did not become final and therefore is currently on appeal. See 38 C.F.R. § 3.156(b) (2016). The appellant testified at a June 2016 Board hearing before the undersigned Veterans Law Judge in Milwaukee, Wisconsin. A transcript of the hearing is of record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Spider Bite Residuals Overall, the appellant has not presently obtained status for VA purposes as a "veteran," as he did not serve on active duty and (currently) does not have disability or disease incurred or aggravated during ACDUTRA or disability incurred or aggravated by inactive duty training. See 38 U.S.C.A. § 101(2) (West 2014) (defining a "veteran" for VA purposes), 38 U.S.C.A. § 101(24) (West 2014) (defining "active military, naval, or air service," which is used in VA's definition of "veteran"), 38 C.F.R. § 3.6(a) (2016). Generally, in order to establish direct service connection, three elements must be established: a current disability, an in-service event and a nexus between the current disability and the in-service event. The appellant seeks entitlement to service connection for spider bite residuals of the left lower extremity. With respect to an in-service event, as noted above, the appellant served on ACDUTRA from August 9, 1997 to August 23, 1997. An October 1997 DA Form 2173 listed a date of accident as August 22, 1997, noted the nature and extent of injury to be "spider bite [left] leg" and stated that the appellant was "bitten by suspected black widow spider in [left] leg." It was noted that the injury was considered to have been incurred in the line of duty. The evidence, therefore, indicates an in-service event, specifically a spider bite to the left leg while on ACDUTRA in August 1997. Turning to whether the appellant has a current disability, on his June 2009 VA Form 21-526 (Veteran's Application for Compensation and/or Pension), the appellant stated that "[s]ince the time of the black widow bite on my left leg, I was been having constantly reoccurring problems with my leg swelling up." Of record are various private treatment records dated prior to the appeal period (dating to June 2009) that referenced swelling of the left leg. The appellant was afforded a VA examination in April 2010 and the examiner stated "[n]ot able to provide diagnosis at this time, concerning bilateral lower leg condition, based on history, physical examination, and medical documentation per C-file." The appellant submitted a June 2010 private medical statement from Dr. D.H., which referred to "[t]he current problems of recurrent swelling you are having." In addition, in an August 2012 statement the appellant referenced "edema and swelling that I am currently having" in the left lower leg and at the June 2016 Board hearing the appellant referenced that he had daily swelling of the left lower leg. See June 2016 Board Hearing Transcript, page 8. The Board notes that the appellant is competent to testify as to swelling that is present in his left lower extremity. As indicated by the appellant's competent and credible reports of left lower extremity swelling, and the June 2010 private medical statement from Dr. D.H. referencing such, the evidence indicates that the appellant has a current disability of the left lower extremity. The crucial remaining inquiry is whether there is a nexus between the appellant's current disability of the left lower extremity and his ACDUTRA service, specifically the documented spider bite. As noted, the appellant was afforded a VA examination in April 2010. An opinion was requested regarding direct service connection and the examiner stated that "[c]annot resolve without resorting to mere speculation." The examiner also stated that "[s]eries of medical documentation is noted concerning lower leg extremity symptoms, including bilateral knee...injuries prior to military service, and left ankle partial tear of...perone[]us longus tendon with surrounding edema and bone marrow edema in the cuboid" and that "[m]ultiple musculoskeletal etiologies, are at least as likely as not (50/50 probability) contributing to the [appellant's] current symptoms/condition concerning the bilateral lower extremities, therefore, cannot provide medical opinion as noted above, without resorting to mere speculation." The June 2010 private medical statement from Dr. D.H. stated that: The description of your original injury or spider insect bite suggests very significant initial tissue reaction. This certainly can cause damage to the venous or lymphatic system in the leg that may not fully recover over time. The current problems of recurrent swelling you are having may be due to this previous injury and damage. If there are no other causes found and temporally the current problem began after the original injury, it is reasonable to conclude that the original injury has caused this residual effect of leg edema. Upon review, the Board concludes that remand is required for a new VA examination and opinion. With respect to the April 2010 VA examination, the provided opinion is of limited probative value in that the examiner did not provide a diagnosis. Evidence received subsequently included the June 2010 private medical statement from Dr. D.H. that referenced a current problem of recurrent swelling of the leg, as well as additional competent and credible reports from the appellant, by way of an August 2012 statement and testimony at the June 2016 Board hearing, as to left lower extremity swelling. In addition, subsequent to the April 2010 VA examination and opinion, additional private medical records were received in July 2012. Such records included treatment related to the appellant's left lower leg dating from 2002 to 2009. As such, in light of the additional evidence received subsequent to the April 2010 VA examination and opinion, this opinion is of limited probative value With respect to the June 2010 private medical statement from Dr. D.H., this opinion is also of limited probative value. Initially, the opinion uses speculative language, specifically the statement that "[t]he current problems of recurrent swelling you are having may be due to this previous injury and damage" (emphasis added). In addition, the statement stated that "[i]f there are no other causes found and temporally the current problem began after the original injury, it is reasonable to conclude that the original injury has caused this residual effect of leg edema." As referenced, the April 2010 VA opinion stated that "[m]ultiple musculoskeletal etiologies, are at least as likely as not (50/50 probability) contributing to the [appellant's] current symptoms/condition concerning the bilateral lower extremities." As the June 2010 private medical statement from Dr. D.H. included a qualifier that "[i]f there are no other causes found" and the April 2010 VA opinion referenced other causes for the appellant's lower extremity symptoms, this, combined with the speculative language previously referenced, results in the June 2010 private medical statement being of limited probative value. In light of the discussion above, both the April 2010 VA opinion and June 2010 private medical statement from Dr. D.H. are of limited probative value. The Board notes that Dr. D.H.'s referenced the appellant's spider bite and stated that "[t]his certainly can cause damage to the venous or lymphatic system in the leg that may not fully recover over time. The current problems of recurrent swelling you are having may be due to this previous injury and damage." This statement indicates that there may be an association between the appellant's spider bite while on ACDUTRA and his current left lower extremity disability. As such, the Board concludes that remand is required for a new VA examination and opinion, as outlined further in the remand directives below. See 38 C.F.R. § 3.159(c)(4) (2016); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Left Lower Extremity Disability, to include Ankle and Foot As noted above, generally in order to establish direct service connection, three elements must be established: a current disability, an in-service event and a nexus between the current disability and the in-service event. The appellant seeks entitlement to service connection for a left lower extremity disability, to include of the ankle and foot. With respect to an in-service event, as noted above, the appellant served on ACDUTRA from June 9, 2007 to June 23, 2007. The appellant has contended that, essentially, he began to experience pain in the left lower extremity while on ACDUTRA in June 2007. At the June 2016 Board hearing, the appellant reported that while on ACDUTRA at this time, "all of a sudden I came up with my left foot hurting" and that at the end of the day he talked to "my lieutenant, my [physician assistant] at that time, [B.J.]." The appellant also reported, essentially, that after this ACUDTRA period he contacted B.J. and attempted to get a line of duty determination regarding this injury, but that he was unable to do. See June 2016 Board Hearing Transcript, page 3. In addition, the appellant has submitted emails from B.J. and himself that corroborate the appellant's report. An August 2008 email from B.J. included the statements that "I was the medical officer on site during [annual training]" and that "I recall the injury occurred during [annual training]." Also of record is a June 2009 buddy statement from B.J. that stated that in June 2007 he "was the Battalion Physician Assistant" during annual training, that the appellant "injured his foot," that the appellant came "to see me soon after the injury...Examination of his foot did not reveal any obvious deformity or bruising. He was able to bear weight, though walked with a limp" and that "[n]o documentation was made at the time due to the seemingly mild nature of the injury." B.J. also stated that about two months later the appellant reported that "he was still having some problems" and that "about 8 months ago" the appellant "contacted me regarding the continuing symptoms he has from this foot injury." B.J. additionally stated that "[e]ven though the National Guard did not issue an [line of duty determination] for this injury, I feel this was a mistake and the soldier should have been eligible for medical care and any other compensation he may be eligible for due to this injury." Reviewing the evidence of record, to include the appellant's statements and those of B.J., the Board concludes that the appellant suffered an in-service event, specifically that he experienced pain in his left lower extremity while on ACDUTRA in June 2007. Turning to whether the appellant has a current disability, on his June 2009 VA Form 21-526, the appellant claimed a disability of left foot and referenced that he was "currently being treated with ortho[t]ics." At the June 2016 Board hearing, the appellant's representative discussed "the bottom" of the appellant's foot and the appellant stated that "it's very limiting...it's hard to walk." No medical records are of record during the appeal period (exclusive of the June 2010 private medical statement from Dr. D.H. discussed above that appears to relate to separate symptomatology). Of record, however, are various private treatment records dated prior to the appeal period (dating to June 2009) that referenced various diagnoses related to the appellant's left lower extremity. In this regard, an October 2007 private treatment note from Marshfield Clinic noted that the appellant reported "left foot pain pretty much since June," noted degenerative joint disease (DJD) at the ankle joint shown on x-ray and noted an assessment of pes planus. With respect to left ankle DJD, the Board notes that a December 2004 private medical note from Marshfield Clinic noted that x-rays showed degenerative changes in the left ankle and noted an assessment of DJD of the left ankle. As such, DJD of the left ankle preexisted the June 2007 ACDUTRA period. Also, MRI results from a December 2007 left foot MRI noted "[p]artial tear of the distal peroneus longus with surrounding edema and local bone marrow edema seen in the adjacent cuboid." An October 2008 private medical note from Marshfield Clinic referenced the appellant as having "lateral column overload on the left side" and that x-rays showed "a small chip fracture of the distal portion of the calcaneus on the CC joint side." X-ray results from an October 2008 left foot x-ray noted "minimal first metatarsophalangeal degenerative changes" and an impression of "mild hallux valgus with foot cavovarus." Reviewing the evidence of record, it is not clear what, if any, current disability the appellant in the left lower extremity, to include the foot and ankle, as no VA examination was conducted and no medical evidence during the appeal period is otherwise of record. As noted, however, at the June 2016 Board hearing the appellant's representative discussed "the bottom" of the appellant's foot and the appellant stated that "it's very limiting...it's hard to walk." In light of the previously discussed in-service event, specifically that the appellant experienced pain in his left lower extremity while on ACDUTRA in June 2007, combined with the appellant's report of foot manifestations at the June 2016 Board hearing and the medical evidence discussed above documenting various foot and ankle diagnoses prior to the appeal period, the Board concludes that remand is required for a VA examination and opinion, as outlined further in the remand directives below. See 38 C.F.R. § 3.159(c)(4) (2016); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Medical Records At the June 2016 Board hearing, the appellant's representative stated that all of the appellant's treatment was private, but that "[w]e're going to work with the VA health care system here now." The Board notes that the most recent private medical records of record were submitted by the appellant in July 2012 and date to April 2009. As such, while on remand, the appellant must be given the opportunity to either provide any outstanding relevant private treatment records, or to complete a release for such providers; if any releases are returned, the AOJ must attempt to obtain the identified records. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request that he either provides any outstanding relevant private treatment records, or completes a release for such providers; if any releases are returned, attempt to obtain the identified records. If any records requested are not ultimately obtained, notify the appellant pursuant to 38 C.F.R. § 3.159(e) (2016). Additionally, ask the appellant to identify whether he has received any VA treatment. 2. Afford the appellant an appropriate VA examination with respect to his spider bite residuals claim. All indicated evaluations, studies and tests deemed necessary must be accomplished and all findings reported in detail. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any left lower extremity disability, to include swelling, edema or cellulitis, present at any point during the appeal period (dating to approximately June 2009) was incurred in or aggravated by the appellant's August 1997 ACDUTRA period, to include the appellant's documented spider bite. While review of the entire claims folder is required, the examiner's attention is invited to an October 1997 DA Form 2173 (VBMS, document labeled STR-Medical-Photocopy, receipt date 7/10/09, page 22 of 51) that noted an August 22, 1997 injury of a spider bite to the appellant's left leg and noted that the injury was considered to have been incurred in the line of duty and to private medical records dated in August 1997 that documented related treatment following the spider bite (VBMS, document labeled STR-Medical-Photocopy, receipt date 7/10/09, pages 27-30 of 51). Additional attention is invited to the appellant's contention that "[s]ince the time of the black widow bite on my left leg, I was been having constantly reoccurring problems with my leg swelling up" (VBMS, document labeled VA 21-526 Veterans Application for Compensation or Pension, receipt date 6/19/09, page 7 of 10) and to medical records that tend to support such contention, to include: a. A November 2002 private medical record (VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 7/20/12, page 6 of 25) referencing "edema consistent with cellulitis" in the left lateral calf and that the appellant reported "that both his legs have a tendency to swell." b. A December 2004 private medical record (VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 8/18/09, page 29 of 38) noting swelling around the left ankle and pitting edema on the shins bilaterally and that the appellant "has had a couple of spider bites, one in each lower extremity which he feels have contributed to chronic lower extremity edema." c. A December 2006 private medical record (VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 7/20/12, page 8 of 25) noting pitting edema over his lower legs and that the appellant "has some trouble with pedal edema that he attributes to previous spider bites." d. A January 2008 private medical record (VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 8/18/09, page 15 of 38) noting that the appellant had "2 spider bites to both lower extremities; on the left, a black widow spider...which has left him with persistent problems with venous return in the left lower extremity of which he still has residual swelling." e. A February 2009 private medical record (VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 7/20/12, page 10 of 25) noting left lower extremity mild cellulitis and that the appellant "still has signs of inflammation over that leg" and that the appellant "noticed swelling and redness in the same left leg where he has had spider bites about 10 years ago. He has always had residual swelling in that leg." f. An April 2009 private medical record (VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 7/20/12, page 23 of 25) referencing swelling in the left leg and noting an assessment of cellulitis and stating that the appellant "has had recurrent cellulitis of his left lower leg over the last 10 years, usually about once or twice a year. It all started with a black widow spider bite." Finally, attention is invited to the June 2010 private medical statement from Dr. D.H. (VBMS, document labeled Email Correspondence, receipt date 6/9/10), which, essentially, indicates that there may be an association between the appellant's spider bite while on ACDUTRA and his current left lower extremity disability and to the appellant's statement at the June 2016 Board hearing (VBMS, document labeled Hearing Testimony, receipt date 6/14/16, pages 8-9 of 12) that "I can't walk without the back of my leg cramping up...I don't know what diminishes the blood flow, but something does...I was told by our [physician assistant]... that there was some venous return damage and things." The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Afford the appellant an appropriate VA examination with respect to his left lower extremity disability, to include of the ankle and foot, claim. All indicated evaluations, studies and tests deemed necessary must be accomplished and all findings reported in detail. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. The examiner must provide an opinion addressing the following: a. Identify any left lower extremity disability, to include of the ankle and foot, that has been present at any point during the appeal period (dating to approximately June 2009). b. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any left lower extremity disability, to include of the ankle and foot, present at any point during the appeal period (dating to approximately June 2009) was incurred in or aggravated by the appellant's June 2007 ACDUTRA period, to include the appellant's reported pain (discussed further above in the body of the remand). For purposes of the provided opinion, the examiner should accept as fact that the appellant experienced pain in his left lower extremity while on ACDUTRA in June 2007. While review of the entire claims folder is required, attention is invited to various private treatment records dated prior to the appeal period (dating to June 2009) that referenced various diagnoses related to the appellant's left lower extremity (some of which were discussed above in the body of the remand). See VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 8/18/09; VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 6/30/09. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After completing the requested actions, readjudicate the claims in light of all pertinent evidence. If the benefits sought remain denied, furnish to the appellant and his representative a Supplemental Statement of the Case. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).