Citation Nr: 1805356 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-15 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral ingrown toenails, to include as secondary to service-connected bilateral pes planus with hallux valgus. 2. Entitlement to service connection for left knee degenerative joint disease, to include as secondary to service-connected bilateral pes planus with hallux valgus. 3. Entitlement to service connection for a right knee disability, status post total knee arthroplasty, to include as secondary to service-connected bilateral pes planus with hallux valgus. 4. Entitlement to service connection for a chronic kidney disability, claimed as secondary to a right knee disability, status post total knee arthroplasty. 5. Entitlement to special monthly compensation based on the need of aid and attendance of another person. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Navy from January 1945 to June 1945. This matter originally came to the Board of Veterans' Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a December 2016 decision, the Board reopened a previously denied claim of service connection for bilateral pes planus and left hallux valgus. The issues of entitlement to service connection for bilateral pes planus, left hallux valgus, right hallux valgus, bilateral ingrown toenails, left knee degenerative joint disease, a right knee disability, and a chronic kidney disability; and entitlement to special monthly compensation were remanded to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development. While the matter was in remand status, in a May 2017 rating decision, the RO granted service connection for bilateral pes planus and assigned an initial 30 percent rating, effective November 22, 2011; granted service connection for hallux valgus of the left great toe and assigned an initial 10 percent rating, effective November 22, 2011; and granted service connection for hallux valgus of the right foot and assigned an initial 10 percent rating, effective November 22, 2011. The RO's decision constitutes a full award of the benefits sought on appeal with respect to such claims. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The record currently available to the Board contains no indication that the appellant has initiated an appeal with any downstream element. Thus, these issues are not in appellate status. In May 2017, the RO issued a Supplemental Statement of the Case (SSOC) addressing the remaining issues on appeal. The Board notes that in a July 2017 rating decision, the RO denied service connection for an eye disorder, a heart disorder, and insipid melanoma. In recent correspondence, including a letter received in August 2017, the appellant appeared to disagree with such denials of service connection. The appellant and his representative are advised that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. Should the appellant wish to file a Notice of Disagreement with the July 2017 rating decision denying service connection for an eye disorder, a heart disorder, and/or insipid melanoma, he should do so pursuant to these requirements. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to (1) service connection for bilateral ingrown toenails, to include as secondary to service-connected bilateral pes planus with hallux valgus; (2) service connection for a chronic kidney disability, claimed as secondary to a right knee disability, status post total knee arthroplasty; (3) special monthly compensation based on the need of aid and attendance of another person are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the appellant's current left knee degenerative joint disease is causally related to his service-connected bilateral pes planus with hallux valgus. 2. The evidence is in relative equipoise as to whether the appellant's current right knee disability, status post total knee arthroplasty, is causally related to his service-connected bilateral pes planus with hallux valgus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left knee degenerative joint disease, as secondary to service-connected bilateral pes planus with hallux valgus, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for entitlement to service connection for a right knee disability, status post total knee arthroplasty, as secondary to service-connected bilateral pes planus with hallux valgus, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b) (1). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In light of the favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision. II. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). In the instant case, 1984 imaging studies from State University Hospital Upstate Medical Center reveal degenerative changes of the bilateral knees. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. III. Bilateral Knee Disorders A. Background The appellant contends that his bilateral knee disorders were caused or aggravated by his bilateral pes planus, right foot hallux valgus, left great toe hallux valgus, and/or his bilateral ingrown toenails. Since the last Board remand in December 2016, service connection has been granted for bilateral pes planus, right foot hallux valgus, and left great toe hallux valgus. 1984 imaging studies from State University Hospital Upstate Medical Center reveal degenerative changes of the bilateral knees. The appellant underwent multiple surgeries related to a right knee total arthroplasty in the 2000s, due to complications discussed below, with respect to the kidney disorder claim. In support of his claim, the appellant submitted an April 2012 letter from his private podiatrist, S.D.H., who indicated that it is not unlikely that any patient of the appellant's age would experience some difficulty walking for extended distances. Considering the appellant's biomechanical alignment and his history of bilateral hallux valgus surgeries, however, he has an even greater degree of limited mobility than the average patient would. Dr. H. indicated that with the appellant's foot problems, "his alignment more proximally (up his legs, thighs, and even into his back) suffers also. This commonly results in knee, back, and hip problems, typically arthritic in nature." The appellant also submitted a January 2017 statement from Dr. G.G.P., M.D. Dr. P. indicated that he had been following the appellant with his "complex history of right knee replacements, infections, and multiple revisions. This is a service connected condition." Dr. P. further indicated that the appellant's "initial knee replacement surgery was related to his prior service-related injury." B. Analysis After considering the record, the Board finds that service connection for left knee degenerative joint disease and a right knee disability, status post arthroplasty, is warranted. First, the record clearly establishes that the appellant has diagnosed current bilateral knee disorders. There is imaging evidence of degenerative joint disease of the bilateral knees; and the appellant since underwent right knee replacement as a result. Second, service connection is in effect for bilateral pes planus with hallux valgus. As set forth above, Dr. H. has provided an opinion to the effect that the type of foot problems the appellant has commonly cause knee problems, typically arthritic in nature. Moreover, Dr. H. indicated that the appellant's mobility is even more limited than the average patient at his age due to his biomechanical alignment and history of hallux valgus surgeries. The Board finds that Dr. H.'s opinion linking the appellant's current knee disabilities to his service-connected foot disabilities is entitled to significant probative weight. Dr. H. has examined the appellant and is familiar with his medical history. He also included a rationale for his opinion. In addition, Dr. P.'s January 2017 statement, although lacking in rationale, support's Dr. H.'s opinion. The Board observes that there is no competent medical opinion of record to the contrary. The appellant was not afforded a VA examination to obtain an etiological opinion with respect to his bilateral knee disabilities and the record otherwise contains no evidence linking his current bilateral knee disability to any other cause. Given the available evidence, and affording the appellant the benefit of the doubt, the Board finds that it is at least as likely as not that his left knee degenerative joint disease and right knee disability, status post total knee arthroplasty, was caused or aggravated by his service-connected bilateral pes planus with hallux valgus. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for left knee degenerative joint disease is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to service connection for a right knee disability, status post total knee arthroplasty, is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND A. Ingrown Toenails The appellant contends that his bilateral ingrown toenails were caused or aggravated by his service-connected bilateral pes planus, right foot hallux valgus, and/or left great toe hallux valgus. An October 1960 letter from Dr. W.L. is of record. Dr. W.L. stated that the appellant had been a patient since 1942. He stated that, although the appellant did not require any foot treatment prior to his service, despite having flat feet and left foot hallux valgus, the appellant sought treatment in June 1945, immediately after discharge, for chronic ingrown toenails. Dr. W.L. treated him for three years, advised him to stay off his feet as much as possible, and recommended special shoes. Dr. W.L. observed that such shoes helped the appellant to minimize his ingrown toenail problem. The appellant has competently reported that he has experienced ingrown toenails since separation from service and that he underwent surgery to remove parts of the toenails of the bilateral great toes as a result. In a statement received in January 2012, the appellant stated that he was treated by Dr. W.L. approximately two weeks following discharge for painful and swollen feet, ingrown toenails, and infection resulting in surgery of both large toenails. He was told to soak his feet and use a stick to pry up his nails. However, his toenails became more painful and infected, resulting in surgery years later. The appellant later indicated in January 2012 that scars on his toes from the ingrown toenail surgeries were still visible. Also in January 2012, the appellant stated that, upon discharge from the Navy, he began treatment for severe ingrown toenails. His doctor told him to discard his Navy shoes and wear softer, wider shoes. His "treatment for the ingrown toenails [has] plagued [him] throughout [his] life." He reported that, after attending college, he continued treatment for ingrown toenails and had to buy and wear wide shoes with soft material. The appellant was afforded a VA examination in March 2017 for his bilateral ingrown toenails. The examiner diagnosed the appellant with such, but opined that it was less likely than not that they were caused by or otherwise etiologically related to his active service, or caused or aggravated by his bilateral pes planus or bilateral hallux valgus. However, the Board finds that the rationale offered is inadequate. The examiner observed that there was no evidence in the service treatment records that such service had caused ingrown toenails. He indicated that the appellant's ingrown toenail condition was more likely than not due to independent factors such as advanced age. The examiner, however, did not address the October 1960 letter from Dr. W.L. who notes that the appellant sought treatment in June 1945, immediately after discharge, for chronic ingrown toenails and received treatment for three years. In addition, the examiner did not address the fact that the appellant has competently reported continuity of symptomatology regarding his toenails since separation, including the fact that he underwent surgery for such approximately five years following discharge. Under these circumstances, an additional examination is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). B. Kidney Disorder A January 2017 letter from Dr. C.R.W. states that the appellant has chronic kidney disease, stage III. Dr. C.R.W. has been following the appellant since 2007. She noted that the appellant developed acute renal failure in 2002 in the setting of joint replacement. Such surgery was complicated by joint infection, which required long-term antibiotics. She opined that the appellant's acute renal failure most likely was secondary to interstitial nephritis from nafcillin. He has been left with residual chronic renal insufficiency since 2002. A June 2017 letter from Dr. C.R.W. states that the appellant developed acute renal failure in 2002 after a right knee replacement. Complications included septic arthritis, which required numerous antibiotics and removal of prosthetic knee. He developed acute renal failure in that setting, most likely secondary to interstitial nephritis from nafcillin. He has residual chronic kidney disease, stage III. Last serum creatinine was 1.53 on December 30, 2016. Given the evidence of record indicating that there may be a link between the appellant's kidney disorder and treatment associated with his now service-connected right knee disability, a medical opinion is necessary. See McLendon, 20 Vet. App. at 79. C. Special Monthly Compensation As resolution of the claims of entitlement to service connection for bilateral ingrown toenails and a kidney disorder may have an impact on the appellant's claim of entitlement to special monthly compensation based on the need of aid and attendance of another person, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). 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. Associate any and all outstanding VA medical records with the claims file. 2. Provide the appellant's claims folder to an appropriate medical professional for the purpose of obtaining an opinion as to the nature and etiology of his bilateral ingrown toenails. After reviewing the record, the examiner should provide an opinion as to the following: Is it at least as likely as not (i.e. a 50 percent or greater probability) that the appellant's chronic bilateral ingrown toenails had their onset during active service or are causally related to such service. If not, is it at least as likely as not that the appellant's chronic bilateral ingrown toenails are proximately due to or the result of (caused by) his service-connected bilateral pes planus, right foot hallux valgus, and/or left great toe hallux valgus. If neither, whether it is at least as likely as not that the appellant's chronic bilateral ingrown toenails were aggravated (permanently made worse) by his service-connected bilateral pes planus, right foot hallux valgus, and/or left great toe hallux valgus. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the ingrown toenails prior to aggravation by his service-connected bilateral pes planus, right foot hallux valgus, and/or left great toe hallux valgus. In providing the requested opinion, the examiner should comment on the relevant evidence of record, to include the October 1960 letter from Dr. W.L. which states that the appellant sought treatment in June 1945, immediately after discharge, for ingrown toenails and was treated for such for a period of three years, and the appellant's reports of continuity of symptomatology, to include surgery on his toenails. If the examiner determines that an examination is necessary, one should be scheduled. 3. Provide the appellant's claims folder to an appropriate medical professional for the purpose of obtaining an opinion as to the nature and etiology of his kidney disorder. After reviewing the record, the examiner should provide an opinion as to the following: Is it at least as likely as not that a kidney disorder had its onset during active service or is causally related to such service. If not, is it at least as likely as not that a kidney disorder was proximately due to or the result of (caused by) the appellant's service-connected right knee disability, to include status post total arthroplasty. If neither, whether it is at least as likely as not a kidney disorder was aggravated (permanently made worse) by the appellant's service-connected right knee disability, to include status post total arthroplasty. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the kidney disorder prior to aggravation by the appellant's service-connected right knee disability, to include status post total arthroplasty. The examiner must specifically comment on the January and June 2017 letters from Dr. C.R.W. which state that the appellant has residual chronic kidney disease, stage III, following acute renal failure in the setting of a right knee replacement. A clear rationale for all opinions would be helpful; and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the above action, and any other development deemed necessary, readjudicate the claims. If the claims remain denied, a Supplemental Statement of the Case must be provided to the appellant and his representative. After providing the appropriate opportunity to respond, return the matter to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs