Citation Nr: 1801113 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-09 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for depressive disorder claimed as nervous condition, secondary to the service-connected disabilities. 2. Entitlement to an initial disability rating in excess of 10 percent for right elbow lateral epicondylitis due to pressure exerted by the use of cane as secondary to the service-connected disability of right knee instability. 3. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for lumbar spine degenerative changes, to include as secondary to service-connected disabilities. 4. Entitlement to service connection for right foot condition as secondary to service-connected disabilities of the right knee and left foot. 5. Entitlement to service connection for left knee meniscal tear as secondary to service-connected disabilities of the right knee and left foot. 6. Entitlement to service connection for right shoulder impingement syndrome as secondary to service-connected disabilities. 7. Entitlement to service connection for sleep problems as secondary to medications taken for service-connected disabilities. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1998 to January 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran filed his notice of disagreement in June 2012 and his substantive appeal in March 2013. This case was previously before the Board in May 2007, where the issue of a patellofemoral joint disease was fully adjudicated. The issues of entitlement to an initial disability rating in excess of 30 percent for depressive disorder claimed as nervous condition, secondary to the service-connected disabilities; entitlement to an initial disability rating in excess of 10 percent for right elbow lateral epicondylitis due to pressure exerted by the use of cane as secondary to the service-connected disability of right knee instability; whether new and material evidence has been received to reopen the claim for entitlement to service connection for lumbar spine degenerative changes, to include as secondary to service-connected disabilities; entitlement to service connection for left knee meniscal tear as secondary to service-connected disabilities of the right knee and left foot; entitlement to service connection for right shoulder impingement syndrome as secondary to service-connected disabilities; and entitlement to service connection for sleep problems as secondary to medications taken for service-connected disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There is competent evidence establishing that there is underlying disease or injury of the right foot. CONCLUSION OF LAW The criteria for service connection for a right foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify & Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The duty to notify has been met. See the July 2011 VCAA letter. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all available records pertinent to the claim have been obtained. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Service Connection The Veteran asserts that his right foot condition is secondary to his service-connected disabilities and/or connected to his active duty service. Service connection is granted for disability resulting from disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Additionally, 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). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303(a) (2016). Secondary service connection may be granted for disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau at 1376-77. The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Federal Circuit recognizes that the Board has an inherent fact-finding ability. Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001); see also 38 U.S.C. § 7104(a). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107 (West 2014). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Right Foot Here, the record fails to show that the Veteran has a diagnosed right foot abnormality. Specifically, in a May 2012 DBQ, the VA examiner indicated that the Veteran does not now or ever had a right foot condition. Likewise, the Veteran's STRs is silent on any complaints or treatment for a right foot condition. However, the Veteran reported that since 1999 after his left cuboid fracture he started having right foot pain. He added that the pain is at the lateral dorsal area of the foot and pains him after prolonged ambulation. In order to warrant a grant of service connection, there must be disability (inability to pursue an occupation because of physical or mental impairment. Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991).) and such impairment must be due to underlying disease or injury. (Thus, in order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001).) Moreover, after examination including radiological exams, the VA examiner could not find any diagnosable issues with the Veteran's right foot. The physician noted that there is no pathology found clinically and/or radiographically at the right foot. The preponderance of the evidence is against granting service connection for the Veteran's claimed right foot condition. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. ORDER Entitlement to service connection for right foot disability as secondary to service-connected disease or injury is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). Depressive Disorder and Right Elbow Lateral Epicondylitis The Veteran seeks a higher initial rating for his service-connected depressive disorder and right elbow lateral epicondylitis. As such, VA has a duty to assist by providing the Veteran with a VA examination to determine the current severity of his disabilities. See 38 U.S.C. § 5103A(d). Generally, remands for VA examinations are not warranted based on the passage of time alone; however, in this case, the Board observes that the Veteran's most recent VA examination was conducted in May 2012. Lumbar Spine Disability In the May 2007 Board decision, the low back disability currently on appeal, was denied as not incurred or aggravated during active duty service. This constitutes a final decision on the low back disability claim. Thereafter, the Veteran raised a new theory of service connection, claiming that his lumbar spine disability is secondary to his service-connected right knee and left foot disabilities. A claim based on a new theory of entitlement is not a new claim, but constitutes a claim to reopen the previously denied claim. Additionally, if the evidence supporting the Veteran's new theory of causation constitutes new and material evidence, then VA must reopen the Veteran's claim. The Veteran asserted that his low back disability was secondary to his service-connected right knee and left foot disabilities. This puts VA on notice of evidence, which may prove to be new and material but have not been submitted with the application. Accordingly, VA has a duty under 38 U.S.C. § 5103 to inform the Veteran of the evidence that is "necessary to complete the application." More specifically, VA's duty here is to inform the Veteran of the necessity of presenting probative nexus evidence that links his present low back disability to his service-connected right knee and left foot disabilities in order to complete his application for reopening this service connection claim. Graves v. Brown, 8 Vet. App. 522 (1996). Left Knee Meniscal Tear After the May 2012 C&P examination, the VA examiner's opinion denied a nexus between the Veteran's left knee meniscal tear with his service-connected disabilities. Specifically, the examiner opined that medical evidence does not support the fact that having meniscal tear could be secondary to patellofemoral joint disease of the contra-lateral knee. Etiology for meniscal tear does not include the Veteran's service-connected conditions. However, this opinion is insufficient for the Board to render a decision on secondary service connection. The examiner must also opine on whether the current disability was caused by and aggravated by the Veteran's service-connected disabilities. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Therefore, a remand is warranted to obtain an addendum opinion. Right Shoulder Impingement Syndrome Similarly, the VA examiner opined that the Veteran's claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected conditions. The physician reasoned that although the Veteran has evidence of right shoulder impingement syndrome, the medical evidence does not support the fact that one of the etiologies for the development of shoulder impingement syndrome is the use of a cane. However, as the Veteran was asserting secondary service connection, the examiner must opine on whether the current disability was caused by and aggravated by the Veteran's service-connected disabilities. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Therefore, a remand is warranted to obtain an addendum opinion. Sleep Disorder Again, after the May 2012 examination, the VA examiner opined that the Veteran's sleep disorder was less likely than not proximately due to or caused by his medications, but indicated that his sleep problems are most likely caused by his severe obstructive sleep apnea, which is not a service-connected condition. However, as the Veteran was asserting secondary service connection, the examiner must opine on whether the current disability was caused by and aggravated by the Veteran's service-connected disabilities. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Therefore, a remand is warranted to obtain an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran the appropriate VCAA notice for new and material evidence required to reopen his claim for service connection for his lumbar spine disability. 2. Obtain all outstanding VA treatments records and associate with the claims file. All records/responses received must be associated with the electronic claims file. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected depressive disorder and right elbow lateral epicondylitis. All indicated evaluations, studies, and tests deemed necessary by the examiner to describe the current severity or symptoms should be accomplished and noted. 2. After obtaining all outstanding records, return the file to the May 2012 VA examiner to issue an addendum opinion regarding the etiology of the Veteran's left knee meniscal tear, right should impingement syndrome, and sleep disorder . If the examiner is no longer available, or otherwise determines that the Veteran should be reexamined, the Veteran should be scheduled for an appropriate VA examination. Based on a review of the claims file, including treatment records, the Veteran's statements, and a copy of this REMAND (and examination findings, including any necessary diagnostic studies, if examined) the examiner is requested to provide an addendum to the examination report, which addresses the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee meniscal tear is in any way etiologically related to his service. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee meniscal tear was caused by his service-connected disabilities. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee meniscal tear was aggravated by his service-connected disabilities. In forming his or her opinion regarding the Veteran's left knee meniscal tear, the examiner is asked to review the Veteran's STRs, specifically the complaints of left leg pain while running. See STRs, pgs. 60-69. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right shoulder impingement syndrome is in any way etiologically related to his military service. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right shoulder impingement syndrome was caused by his service-connected disabilities. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right shoulder impingement syndrome was aggravated by his service-connected disabilities. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep disorder is in any way etiologically related to his service. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep disorder was caused or aggravated by service-connected disabilities. The examination report must include a rationale for all opinions expressed. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. "Aggravation" means a chronic or permanent worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its natural progression. 3. Finally, after conducting any other development deemed necessary, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran and his 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 2014). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs