Citation Nr: 1802498 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-16 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder (other than already service-connected bilateral pes planus) and residuals of a cold injury on the feet, to include plantar warts, tinea pedis, and toenail fungus. 2. Entitlement to rating in excess of 20 percent for residuals of a right thumb injury with degenerative changes. 3. Entitlement to rating in excess of 10 percent for residuals of status post discectomy, L5-S1, with degenerative joint disease of the lumbar spine (previously combined with decreased light touch of the left extremity). 4. Entitlement to a rating in excess of 20 percent for decreased light touch of the left lower extremity (previously combined with residuals of status post discectomy, L5-S1). 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1960 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and July 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the September 2008 rating decision, the RO in pertinent part, denied the Veteran's petition to reopen a service connection claim for frostbite on both feet (since then reopened in a September 2012 Board decision and re-characterized as a service connection claim for a bilateral foot disorder in September 2014 Board decision.) In the July 2014 rating decision, the RO, in pertinent part, denied the Veteran's increased rating claims for residuals of a right thumb injury with degenerative changes and for residuals of status post discectomy L5-S1 with degenerative joint disease of the lumbar spine. In that decision, the RO also denied entitlement to a TDIU. The Board observes that in a December 2012 rating decision, the RO granted service connection for bilateral pes planus. In a September 2014 Board decision, the Board denied service connection for residuals of a cold injury to the feet, previously claimed as frostbite on both feet. Accordingly, the issue has been characterized on the title page as entitlement to service connection for a bilateral foot disorder other than bilateral pes planus and residuals of a cold injury to the feet. Additionally, the issue of entitlement to a rating in excess of 20 percent for decreased light touch of the left extremity was not specifically adjudicated in the July 2014 rating decision on appeal; this issue was adjudicated in the January 2017 statement of the case as part and parcel of the increased rating claim for residuals of status post discectomy of L5-S1 with lumbar spine degenerative joint disease (previously combined with decreased light touch of the left extremity). In September 2012, September 2014, June 2015, and July 2017, the Board remanded these claims for additional development. The Board finds that there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271. In October 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. A claim for a TDIU is part and parcel of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, App. 447 (2009). In this case, evidence of record (discussed further in the remand section below) suggests that the Veteran's service-connected disabilities currently on appeal may interfere with his ability to secure or follow a substantially gainful occupation. As such, a claim for a TDIU is properly before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to rating in excess of 20 percent for residuals of a right thumb injury with degenerative changes, entitlement to rating in excess of 10 percent for residuals of status post discectomy, L5-S1, with degenerative joint disease of the lumbar spine (previously combined with decreased light touch of the left extremity), entitlement to a rating in excess of 20 percent for decreased light touch of the left lower extremity (previously combined with residuals of status post discectomy, L5-S1), and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran's current bilateral feet disorder (other than bilateral pes planus- which was previously granted service connection) did not manifest until decades after his active period of service; and the preponderance of the evidence is against a finding that it is otherwise related to his active period of service. CONCLUSION OF LAW Entitlement to service connection for a bilateral foot disorder (other than bilateral pes planus - which was previously granted service connection) is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has met all the duty to notify and assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016). Duty to Notify As to the claims for bilateral hearing loss disability and tinnitus, VA's duty to notify was satisfied by a March 2007, May 2008, and September 2012 letters. See 38 U.S.C.A. §§ 5102 , 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also, Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, personnel records, and post-service treatment records have been associated with the record. Additionally, during the appeal period the Veteran was afforded VA examination in October 2014. A medical addendum opinion was obtained in June 2016. The examiner conducted an examination and provided sufficient information regarding the Veteran's bilateral foot disorder such that the Board can render an informed determination. The Board finds that the October 2014 examination report and June 2016 medical addendum opinion are adequate for service connection purposes. II. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37(Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104 (a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Bilateral Foot Disorder The medical evidence indicates the Veteran currently has a diagnosis of hallux valgus, toenail unguim, and degenerative joint disease (DJD), which is documented in the October 2014 VA foot condition examination report. Thus, the requirement for a current disability is met. Here, the Veteran contends that his current foot disorder is related to his military service. In October 2017, he testified that he had warts removed from the bottom of his feet while in service. He reported that while he was training in France he hurt his foot in a foxhole. The Veteran's service treatment records (STRs) indicated that he did have a lesion on the sole of his foot. A January 1962 STR documented that he had a lesion on the sole of his foot and later in February had it removed. Thus, the requirement for an in-service event is met. However, the preponderance of the evidence is against a finding that the Veteran's bilateral foot disorder is causally related to his active duty. The Veteran has asserted that he experienced the same bilateral foot symptoms since service. While he is competent to testify to the persistence of lay-observable symptoms of his bilateral foot disorder, the Veteran is not competent to state that his bilateral foot disorder is causally related to his active duty service, as to do so requires expertise as a medical practitioner in the appropriate field. Jandreau, 492 F.3d 1372. See 38 C.F.R. §§ 3.303, 3.309. The Veteran's lay opinion could be sufficient to serve as the required nexus for his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). However, in this case, the evidence demonstrates that there was a substantial gap in time between the Veteran's service-related foot issues and the initial manifestation of his current diagnosed bilateral foot disorder. In such a circumstance, other potential causes of the bilateral foot disorder must be considered. Significantly, determining the precise etiology of the Veteran's bilateral foot disorder is not a simple question, as there are multiple potential etiologies of the Veteran's currently diagnosed hallux valgus, DJD, and toenail unguim. In this case, the facts are complex enough that the Veteran's intuition about the cause of his bilateral foot condtion is not sufficient to outweigh the opinion of the expert that carefully considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.") Thus, the Board finds that the Veteran's opinion is not entitled to significant weight as compared to the VA October 2014 and VA June 2016 VA medical opinion described below. The Veteran does not report an issue with his bilateral foot condition until approximately 40 years after his service. In 2007, is the first instance that the Veteran is diagnosed with a bilateral foot disorder. Since 2007 VA treatment records documented that, the Veteran had dermatophytosis of the foot. Turning to the medical evidence, the Veteran was provided with a VA examination in October 2014, where the examiner diagnosed the Veteran with hallux valgus. The examiner indicated that the Veteran had minimal hallux nail tip jaggedness and none to the remaining toes. There was no callus or plantar warts present during physical the examination. There was no tinea infection presented to skin of either foot. There were no deformities of either of foot. The Veteran reported that there was point tenderness to force, mid, and hind foot arch bilaterally and there was no pain at rest. The Veteran reported that he used shoe inserts to help during ambulation. The examiner noted that the Veteran had hammertoes bilateral foot, digits 2-4 (to lesser extend digit 5 bilaterally), bilateral bunion, and x-ray evidence of DJD. Bilateral hallux valgus, bilateral planter fasciitis, and mild tinea unguium to each hallux nail tip. The examiner indicated that the Veteran had a normal gait. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability or greater) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale indicated that after a review of the Veteran's STRs and the Veteran's self-reported history revealed no evidence of a bilateral foot condition found in the present examination or examinations of each foot dated September 2007 to the present. The Veteran was not sure of the exact diagnosis of each foot dated in September 2007, the newly diagnosed foot condition involve the skin in the form of calluses. These were trimmed and not present during the examination. In 2013, the Veteran was fitted for arch support to address plantar pain. Since then there had not been any new foot diagnosis present in the current record. Nonetheless, calluses, bunion, or hammertoes did not have their onset during or was caused by the Veteran's military service. The Veteran did not have tinea infection or callouses on the present examination. The examiner further opined that it was not at least as likely as not that any diagnosed foot disorder was caused or aggravated by the Veteran's service-connected pes planus or decreased touch. His rationale for this opinion indicated that bunions and hammertoes have a physiology of cause unrelated to the presence or lack thereof, of an arch to the foot. The Veteran had no biomechanical condition originating from his pes planus to alter the function of the foot to cause or permanently aggravate the foot to cause bunions or hammer toes. A review of the medical literature revealed that bunions had a cause from inheritance, foot injuries, or congenital. The Veteran's record revealed no foot injuries to cause a bunion. Hammertoes are caused by excessive flexion of the toes. Pes planus was not contributory to this action. The degenerative joint disease at the first MTP joint was not caused by pes planus or light touch but more likely from the wear effect from aging. In June 2016, a VA medical addendum opinion was obtained. The examiner opined that the Veteran's toenail unguim was less likely was not (50 percent probability or greater) related to the Veteran's active service. Furthermore, the examiner opined that toenail fungus or any additional foot disorder was not related to the Veteran's active service. The Veteran had an isolated incident while in the military where he suffered from T, pedis. The Veteran on that occasion was treated conservatively and recovered without residual effects. The episode was acute and transient without persistent or recurrenct sequel. The Veteran was currently, post service, presenting with T. unguim. Those conditions are comorbid, separated, and independent of each other. They may be present alone or together. There was no nexus or link between them. The conditions share a common possible underlying cause, as they are associated with one of three different, and ubiqious fungal elements, but this means they do not cause each other. The VA medical opinions of record are probative, as the examiners have reviewed the claims file, considered the Veteran's medical history, and provided a sufficient rationale for the opinions provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As such, the only competent and credible evidence of record concerning the etiology of the Veteran's bilateral foot disability is the October 2014 and June 2016 medical opinions, which indicated the Veteran's current bilateral foot disorder was less likely than not related to service, and that the Veteran's claimed in-service event did not relate to his current service-connected disability, including by way of aggavation. Thus, the preponderance of the evidence is against a finding of a nexus between the current disability and the in-service foot condition, and therefore service connection for a bilateral foot disorder is not warranted on a direct basis. 38 C.F.R. §§ 3.303, 3.306. Arthritis is considered a chronic disease, and therefore service connection based on the presumption in favor of chronic diseases and continuity of symptomatology are potentially applicable. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.309. However, the Veteran's service treatment records are silent for a diagnosis of arthritis during service or within one year after service. See 38 C.F.R. § 3.385. The October 2014 VA examiner reported that DJD was present from x-ray evidence. The Veteran specifically denied any current foot problems at separation in June 1963. There are no VA treatment records after that time, until 2007, that suggest the Veteran has any type of foot disorder. The first evidence of the current disability comes from a VA treatment note in 2007. As there is no competent and credible evidence of sufficient manifestations of a bilateral foot disorder either during service or within the first post-service year, service connection based on the presumption in favor of chronic diseases or continuity of symptomatology is not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.309. Although the Veteran has established a current disability and an in-service event, the preponderance of the evidence weighs against a finding that the Veteran's bilateral foot disorder is causally related to his service or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. ORDER Entitlement to service connection for a bilateral foot disorder (other than bilateral pes planus which was previously service-connected) and residuals of a cold injury on the feet, to include plantar warts, tinea pedis, and toenail fungus is denied. REMAND Right Thumb In October 2017, the Veteran testified that he could hardly write and could not hold a glass of water. He testified that his right thumb condition caused him a lot of pain. He stated that he was not able to hold heavy utensils or heavy items. He indicated that he had reduced strength in his hand and that experienced cramps because of his condition. He testified that he was not able to make a fist with his hand. The Veteran stated that he felt the examiner did not give him a thorough examination. He testified that his right thumb condition was worse since the last VA examination. Reexamination will be requested whenever VA determines that there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327 (a)(2016). In light of this statement indicating increased severity of the Veteran's service-connected right thumb disability, a new VA examination to address the current severity of his condition is warranted. Lower Back Injury In October 2017, the Veteran testified that had physical therapy to help with his back condition. He indicated that he had some physical therapy sometime in 2017. The Veteran testified that he was able to walk only about a block due to his back condition. The Veteran stated that his back would pop and would tighten up. The Veteran testified that he did not believe that he was provided an adequate examination for his back condition. He indicated that his condition was worse. Reexamination will be requested whenever VA determines that there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327 (a)(2016). In light of this statement indicating increased severity of the Veteran's service-connected lower back disability, a new VA examination to address the current severity of his condition is warranted. Decreased Touch Left Lower Extremity In October 2017, the Veteran testified that he experienced numbness from the hip all the way down to his knees. The Veteran reported that he had physical therapy to help with his back condition. He stated that he was prescribed pain medication for his condition. The Veteran testified that he only experienced numbness on his left lower extremity and not his right lower extremity. The Veteran testified that his left leg was not getting any better but it was getting worse. Reexamination will be requested whenever VA determines that there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327 (a)(2016). In light of this statement indicating increased severity of the Veteran's service-connected left lower extremity, a new VA examination to address the current severity of his condition is warranted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding private treatment records and VA records relevant to the Veteran's disabilities. (In October 2017 Board hearing, the Veteran indicated that he received physical therapy for his left leg disability and lower back disability.) 2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination to ascertain the current severity of his service-connected right thumb disability. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. In assessing the severity of the right thumb disability, the examiner should test for pain on both active and passive motion and in weight bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare ups) and, to the extent possible provide an assessment of the functional impairment on repeated use or during flare ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups 3. After obtaining updated medical records, schedule the Veteran for a VA examination to ascertain the current severity of his service-connected lower back disability. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. In assessing the severity of the back disability, the examiner should test for pain on both active and passive motion and in weight bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare ups) and, to the extent possible provide an assessment of the functional impairment on repeated use or during flare ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. 4. After obtaining updated medical records, schedule the Veteran for a VA examination to ascertain the current severity of his service-connected lower left extremity disability. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. 5. Complete any development necessary to adjudicate the Veteran's claim of TDIU. 6. Ensure completion of the foregoing and any other development deemed necessary, then adjudicate the issues that have been remanded. If the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. 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). 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs