Citation Nr: 1804206 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-09 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with bilateral sacroiliac joint dysfunction. 2. Entitlement to a rating in excess of 10 percent for right knee strain. 3. Entitlement to a rating in excess of 10 percent for left knee strain. 4. Entitlement to a rating in excess of 10 percent for bilateral pes cavus deformity. 5. Entitlement to a rating in excess of 10 percent for right hip trochanteric bursitis. 6. Entitlement to a rating in excess of 10 percent for left hip trochanteric bursitis. 7. Entitlement to an effective date prior to September 30, 2009 for the grant of service connection for right hip trochanteric bursitis. 8. Entitlement to an effective date prior to September 30, 2009 for the grant of service connection for left hip trochanteric bursitis. 9. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, depression, and alcohol dependence. 10. Entitlement to service connection for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the cervical spine, including as secondary to service-connected disability. 11. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD R. E. Jones, Counsel INTRODUCTION The Veteran served from December 2005 to November 2007 with the California National Guard, including a period of active duty for training (ACDUTRA) from March 2006 to June 2006 with the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2012 and July 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's claims were remanded by the Board in September 2015. In October 2017 the Veteran's attorney submitted additional evidence along with a waiver of RO review of that evidence. The effective date, increased rating and TDIU claims are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A cervical spine disability first manifested several years after service and is not causally or etiologically related to service. 2. The Veteran's cervical spine degenerative disc disease and degenerative joint disease is not caused or aggravated by service-connected disability. 3. The Veteran has an acquired psychiatric disorder, to include bipolar disorder, depression, and alcohol dependence, that is aggravated by his service-connected disabilities. CONCLUSIONS OF LAW The criteria for service connection for cervical spine degenerative disc disease and degenerative joint disease, to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for an acquired psychiatric disorder, to include bipolar disorder, depression, and alcohol dependence, have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A (2012), and implemented at 38 C.F.R. § 3.159 (2017), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. The duty to notify has been met. 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). No such arguments have been raised. In light of the foregoing, nothing more is required. The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence regarding the issues decided below. The Veteran's service treatment records (STRs), Social Security Administration (SSA) and VA treatment records have been associated with the record. The Veteran has submitted medical evidence in support of his claims and he has been provided VA medical examinations. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims decided below after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection Law and Regulations To establish service connection a Veteran must generally 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." 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 incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of the Veteran's discharge from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In this case, there is no presumed service connection because arthritis of the cervical spine was not medically diagnosed within one year of discharge and such a finding is not capable of lay observation. Service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). III. Cervical Spine The Veteran's claim for service connection for a cervical spine disorder was received in September 2011. In November 2011 he stated that he was not originally treated for his neck condition, but that it had arisen and worsened over the years. He stated that his original injury was very severe and that he believed that his neck condition may have been incurred at the time of the initial injury or as secondary to his degenerative issues throughout his body. The Veteran's service treatment records do not contain any complaints of neck pain and do not reflect that the Veteran injured his cervical spine during service. On VA examination in May 2012, the Veteran reported that he had experienced neck pain ever since a fall in service. The diagnoses were degenerative disc disease and degenerative joint disease of the cervical spine. The VA examiner opined that the Veteran's cervical spine disability was not caused by, a result of, or aggravated by his service-connected bilateral pes cavus deformity or bilateral hip trochanteric bursitis conditions. He also opined that the Veteran's cervical spine disability is not caused by, a result of, or aggravated by his service-connected lumbosacral spine disease or his knee conditions. He based his opinion on a review of the medical records, the medical literature and on his clinical experience that there is no evidence to connect the cervical spine disease to the low back, bilateral pes cavus, bilateral hip or bilateral knee conditions. He noted that these service-connected conditions do not cause or aggravate a degenerative condition of the neck. In March 2016 the Veteran's records were again reviewed by the VA examiner that performed that May 2012 VA examination. He opined that the Veteran's cervical spine disease was not caused by, a result of, or in any manner related to his military service. He further opined that the Veteran's DDD/DJD of the cervical spine was not caused by, a result of or aggravated by his service-connected bilateral pes cavus deformity, bilateral hip trochanteric bursitis, lumbosacral spine disease or knee disabilities. The VA physician noted that there was no evidence of a neck problem during active duty or for the next three plus years following separation. He noted that the first mention of anything related to the neck area was in February 2010, when the Veteran reported right shoulder pain, numbness and tingling which he had been experiencing for two weeks. This indicated to the physician that a chronic neck condition did not begin in active duty or due to active duty, including the Veteran's fall. The physician stated that he was unable to determine the etiology of the Veteran's DDD since he was 40 at the time of the diagnosis and there are many reasons 40 year-olds can have degenerative spine disease of the neck, including age. In September 2016 the VA physician provided further rationale for his opinion that the Veteran's cervical spine disability is not caused or aggravated by the Veteran's service-connected disabilities. He noted that the medical literature is silent regarding a relationship between cervical spine disease and the Veteran's service connected pes cavus deformity, hip trochanteric bursitis, lumbosacral spine disease or knee conditions. He stated that the reason this is not discussed in the medical literature is that no physician believes that there is any relationship, since the most likely cause of cervical spine degeneration is aging. He stated that there are degenerative changes on many adults over age 30 and the Veteran was not found to have degenerative disease until age 40, so his etiology was likely age related. The VA physician noted that the feet, knees, hips and low back do not have any biomechanical effect on the cervical spine. He stated that as a board certified neurologist for over 30 plus years, it was his opinion that there was no causation or aggravation of the neck by the Veteran's service-connected disabilities. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to this claim, whether the Veteran has a current cervical spine disability that is a result of service, or that is caused or aggravated by a service-connected disability, such falls outside the realm of common knowledge of a lay person as this is beyond the capability of a lay person to observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Consequently the Veteran's assertions are not competent evidence regarding whether he has a current cervical spine disorder due to service or that is caused or aggravated by the service-connected left pes cavus deformity, hip trochanteric bursitis, lumbosacral spine disease or knee disabilities. The most probative evidence of record is the Veteran's STRs, the post service medical records and the VA medical opinions. This evidence shows that the Veteran did not experience any disability of the cervical spine during service, shows that the he first developed neck pain several years after discharge from service, and indicates that any current disability of the cervical spine is unrelated to service and is not caused or aggravated by the Veteran's service-connected disabilities. The weight of the evidence does not demonstrate that symptoms of neck pain have been continuous since service. Accordingly, the preponderance of the evidence is against the Veteran's claim and service connection for a cervical spine disorder, to include as secondary to service-connected disability, is not warranted. IV. Mental Disorders The Veteran's claim for service connection for depression, anxiety and bipolar disorders was received in June 2012. The November 2005 enlistment examination indicates that the Veteran had no psychiatric disability. An April 2006 STR shows treatment for sore feet, hip and chest. The medical history part of this record notes that the Veteran had had an anxiety disorder. May 2006 STRs also show a history of anxiety disorder. On VA examination in June 2013, the VA examiner diagnosed alcohol dependence in early full remission and mood disorder. She opined that the Veteran's psychiatric disability was not caused by or a result of his period of service from March to June 2006. In November 2013 a private psychologist filled out a mental health Disability Benefits Questionnaire (DBQ). She noted that she had been treating the Veteran intermittently since 1998. She stated that the Veteran sustained significant physical injuries while on active duty in 2006. She opined that those injuries have more likely than not permanently aggravated the Veteran's bipolar disorder, depression, and obsessive compulsive disorder. It was her clinical judgment that there is a positive nexus between the Veteran's mood disorders and the physical injuries he sustained while on active duty. In October 2016 a VA psychologist filled out a mental health DBQ. He opined that the Veteran's service-connected injuries more likely than not contributed to the Veteran's mood decline causing depression and anxiety. On VA compensation and pension examination in October 2016 the diagnoses were anxiety disorder, depressive disorder, and alcohol use disorder, in sustained remission. The VA examiner noted that he was unable to differentiate what portion of each symptom is attributable to each diagnosis. The VA examiner opined that it was less likely than not that the Veteran's anxiety or depressive disorders are permanently aggravated beyond their natural progression by the service-connected pain from musculoskeletal conditions. The examiner thought the disorders were related to post-military stressors including unemployment and financial problems. He also thought that the Veteran's history of chronic excessive alcohol use was related to the Veteran's unemployment and financial stress. In September 2017 a private psychologist with offices in a distant state prepared a detailed medical opinion. The psychologist indicated that an examination or interview was performed, provided a detailed summary of the record, and referred to several medical journal articles. She found that the Veteran had one disorder, a bipolar disorder, and opined that the bipolar disorder more likely than not began in military service and has continued since service. She further opined that the Veteran's bipolar disorder is aggravated by his lumbar spine, hip, knee and pes cavus disabilities. The Board recognizes that a VA examiner opined in October 2016 that the Veteran's psychiatric disability is not aggravated by the Veteran's service-connected disabilities. However, three other psychologists, including a VA psychologist, have examined the Veteran, reviewed the Veteran's medical history, and have opined that the Veteran's psychiatric disability is aggravated by his service-connected disabilities. Consequently, the Board finds that the greater weight of the medical evidence indicates that the Veteran's current psychiatric disability is secondary to his service-connected disabilities. Disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310. A disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Based on the above, the Board finds that the Veteran's acquired psychiatric disorder, to include bipolar disorder, depression and alcohol dependence, is secondary to his service connected musculoskeletal disabilities. Accordingly, the Veteran is entitled to service connection for his acquired psychiatric disorders on a secondary basis. 38 C.F.R. § 3.310. All doubt has been held in the Veteran's favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for degenerative disc disease and degenerative joint disease of the cervical spine, including as secondary to service-connected disability, is denied. Service connection for an acquired psychiatric disorder, to include bipolar disorder, depression, and alcohol dependence, is granted. REMAND In September 2015 the Board cited to Manlincon v. West, 12 Vet. App. 238 (1999) and remanded the Veteran's claims for earlier effective dates for the grant of service connection for left and right hip trochanteric bursitis. The Board instructed that the AOJ issue a statement of the case (SOC) adjudicating the hip effective date claims. The AOJ issued an SOC in June 2017, but the SOC did not include adjudication of the Veteran's bilateral hip effective date claims. Accordingly, the effective date claims must be remanded to the AOJ for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's most recent VA examination of the feet was performed in June 2013 (located in the Veteran's Virtual VA file). The VA examiner noted that the Veteran did not have hammer toes. An August 2015 VA outpatient record (located in Virtual VA) states that the Veteran now has hammer toes. This is an indication that the Veteran's bilateral foot disability has increased in severity since the June 2013 VA examination. The criteria for higher rating for pes cavus include reference to hammer toes. See 38 C.F.R. § 4.71a, Diagnostic Code 5278. The Veteran should be provided a VA examination to evaluate the current severity of his bilateral pes cavus disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran's lumbar spine claim was most recently examined by VA in March 2016. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant's joint disability and account for painful motion. However, compelled by § 4.59's place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. In this case, it does not appear that the March 2016 VA examiner performed both active and passive range of motion testing of the Veteran's lumbar spine; moreover, the examination report does not address weight-bearing versus nonweight-bearing testing. Notably, in Correia, the Court found similar range of motion testing to be inadequate. As the March 2016 VA examination report does not provide all of the information specified by Correia, this claim must be remanded for a new VA examination to obtain the information necessary to properly adjudicate the claim. The Veteran's most recent VA examination of the knees and hips was performed in June 2013. The June 2013 VA examination did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination of the knees and hips that contains adequate information pursuant to Correia. Further, the examiner must "[E]licit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she c[an] not do so." Sharp v. Shulkin, 29 Vet. App. 26 (2017) . With respect to the Veteran's TDIU claim, because the Veteran's increased rating claims are being remanded for additional development, and because the Veteran's TDIU claim may be impacted by adjudication of the increased rating claims, the Board finds that these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, the Board concludes that the Veteran's TDIU claim also must be remanded for readjudication by the AOJ. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any and all outstanding VA treatment records related to the instant claims. 2. Afford the Veteran an appropriate VA examination to assess the manifestations of the Veteran's bilateral pes cavus disability. 3. Afford the Veteran an appropriate VA examination to assess the manifestations of the Veteran's lumbar spine disability. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions and elicit information on flare-ups, if any. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. 4. Afford the Veteran an appropriate VA examination to assess the manifestations of his bilateral hip and knee disabilities. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions and elicit information on flare-ups, if any. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. 5. Issue an SOC in response to the March 2014 NOD with the July 2013 rating decision as to the effective date issues for the grants of service connection for the right and left hip disabilities. 6. When the above actions have been completed, readjudicate all claims in appellate status. If any benefit sought on appeal is not granted to the Veteran's satisfaction, furnish the Veteran with a supplemental statement of the case and provide the Veteran with an opportunity to respond in accordance with applicable statutes and regulations. The case should be then returned to the Board for further appellate review, if otherwise in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs