Citation Nr: 1805486 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-19 800A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial, compensable disability rating for bilateral shin splints. 2. Entitlement to service connection for a lumbar spine disability, to include a degenerative disc protrusion at the L5-S1. 3. Entitlement to service connection for a bilateral foot disability, to include bilateral pes planus. 4. Entitlement to service connection for a bilateral knee disability. 5. Entitlement to service connection for tinnitus. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to December 2001. Additionally, she served in the District of Columbia Army National Guard (DC ARNG). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In July 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing in Washington, DC; a transcript has been associated with the claims file. The issues of entitlement to an increased, initial disability rating for bilateral shin splints and entitlement to service connection for a bilateral foot disability, bilateral knee disability, and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A magnetic resonance imaging (MRI) of the lumbar spine in service showed the Veteran had a disc bulge, disc desiccation, and loss of height of the L5-S1, without spinal canal stenosis or neural foraminal narrowing in service, which was confirmed by a post-separation MRI. CONCLUSION OF LAW The criteria for service connection for a degenerative disc protrusion at the L5-S1 have been met. 38 U.S.C. §§ 1110, 1111, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that she suffers from low back pain, which stems from her active duty service. More specifically, she asserts it began during basic training and progressed over time in service due to the physical wear and tear she sustained during trainings. See January 2009 VA Examination Report; July 2016 Board Hearing Transcript at 14. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1113(b); 38 C.F.R. §§ 3.303, 3.304. In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A review of the Veteran's service treatment records (STRs) reveals that upon clinical evaluation at the time of enlistment no abnormalities of the spine were documented. See January 1997 Report of Medical Examination; see also January 1997 Report of Medical History (the Veteran reported her health was good, and denied having or having had any recurrent back pain or bone, joint, or other deformity). An MRI among her STRs continued to show a normal lumbar spine into August 2000. August 2000 W.R.A.M.C. Radiologic Examination Report. However, by September 2000, a subsequent MRI indicated that she suffered from a disc bulge, disc desiccation, and loss of height of the L5-S1, without spinal canal stenosis or neural foraminal narrowing. September 2000 W.R.A.M.C. Radiologic Examination Report. Thus, an in service injury has been established. See Shedden, supra. Following separation from service, the Veteran's private treatment records reveal an assessment of chronic low back pain. See April 2010 A.R.A. Treatment Note. While pain alone cannot constitute a disability for which service connection may be granted, Dr. S.D., a private treatment provider, also determined that she demonstrated paraspinal muscle spasms upon examination. See Sanchez-Benitez v. Brown, 13 Vet. App. 282 (1999); April 2010 Letter from Dr. S.D. with A.R.A. Two months later, a June 2010 MRI of the lumbar spine confirmed the presence of a posterior degenerative disc protrusion with very slight inferior extrusion of the L5-S1. June 2010 W.R.A. Radiologic Examination Report. Consequently, the evidence of record also establishes a current disability. See Shedden, supra. Although the Veteran has not been afforded a VA examination to date with respect to this claim, and there is no private treatment record proffering a nexus opinion, the Board finds it is unnecessary given the June 2010 W.R.A. Radiologic Examination Report discloses the same disc protrusion of the L5-S1 demonstrated during a period of active duty service. Accordingly, the Board finds there is sufficient evidence of a nexus. See Shedden, supra. Based on the foregoing, the Board finds the preponderance of the evidence substantiates the Veteran's claim for service connection for a degenerative disc protrusion of the L5-S1. 38 C.F.R. §§ 3.303, 3.304; Shedden, supra. ORDER Service connection for a degenerative disc protrusion of the L5-S1 is granted. REMAND I. Initial, Compensable Disability Rating for Bilateral Shin Splints The Veteran has undergone one VA examination to date assessing her bilateral shin splints in February 2009. February 2009 VA Examination Report. At that time, the VA examiner concluded there was no objective evidence of shin splints or stress fractures. Notwithstanding the VA examiner's conclusion, she was awarded service connection for bilateral shin splints. See April 2009 Rating Decision. Subsequently, during the July 2016 Board videoconference hearing, she testified that she experienced sharp pain on daily basis due to her shin splints; some swelling; difficulty keeping her balance; and difficulty going down stairs. July 2016 Board Hearing Transcript at 4-7. Given the foregoing, the Board finds there is insufficient evidence to ensure the Board's evaluation of this claim is a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994); see also July 2016 Board Hearing Transcript at 19 (the Veteran's representative questioned the adequacy of the VA examinations). As such, a remand is necessary for another VA examination. II. Service connection for Bilateral Pes Planus and a Bilateral Knee Disability The Veteran contends that her claimed bilateral pes planus and bilateral knee disability stem from the physical wear and tear she sustained during basic training and generally throughout her service. See July 2016 Board Hearing Transcript at 10, 12; see also February 2009 VA Examination Report. In the alternative, her representative suggests they are secondary to her service-connected bilateral shin splints. July 2016 Board Hearing Transcript at 9. In furtherance of these claims, the Veteran was afforded a VA examination in February 2009. February 2009 VA Examination Report. With respect to her claimed bilateral foot disability, following examination, the VA examiner failed to clearly state whether she had any bilateral feet conditions. However, the VA examiner acknowledged that a January 2009 imaging study of the feet bilaterally revealed a minimal hallux valgus deformity on the left. Further, the VA examiner confirmed reviewing her claims file, which included her private podiatry treatment records from Dr. J.M. diagnosing her with pes planus, among other feet conditions Id.; see also April 2005 Treatment Note from Dr. J.M. (diagnosed the Veteran with forefoot valgus deformity and plantar fasciitis); May 2008 Treatment Note from Dr. J.M. (diagnosed the Veteran with pes planus foot deformity as well as forefoot varus deformity). Even so, the VA examiner did not proffer a nexus opinion or any rationale discussing the examination findings, the pertinent STRs and private treatment records, or her relevant lay statements. See Stefl, supra; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); July 2016 Board Hearing Transcript at 19 (the Veteran's representative questioned the adequacy of the VA examination). With respect to the Veteran's claimed bilateral knee disability, upon examination, the VA examiner found evidence of a mild collateral ligaments laxity and slight patello-femoral compression tenderness. February 2009 VA Examination Report. The VA examiner also acknowledged that a January 2009 imaging study of the knees bilaterally indicated there was possible mild bilateral medial tibiofemoral joint space narrowing. Nevertheless, again, the VA examiner did not supply a nexus opinion or any rationale discussing the examination findings, the pertinent STRs and private treatment records, or her relevant lay statements. See Stefl, supra; see also Nieves-Rodriguez, supra; July 2016 Board Hearing Transcript at 19. Based on the above, the Board finds the February 2009 VA Examination Report is inadequate to adjudicate these claims, and a remand is necessary to afford the Veteran another set of VA examinations. IV. Service Connection for Tinnitus The Veteran contends that her tinnitus began after basic training while she was serving in the DC ARNG in 1997. July 2016 Board Hearing Transcript at 18. According to her, while serving in the DC ARNG she was exposed to hazardous noise from the firing range each drill period from M-16s and 9 millimeter firearms. Id. at 16. As a result of this exposure, she began experiencing ringing in her ears. Id. at 17. As the Veteran's service connection claim for tinnitus is based on her period of DC ARNG service, she must first establish veteran status. In order to achieve veteran status when the claim is based on a period of active duty for training (ACDUTRA) the claimant must show that she suffers "from a disease or injury incurred or aggravated in line of duty"; and when the claim is based on a period of inactive duty for training (INACDUTRA) the claimant must show that she suffers from "an injury incurred or aggravated in line of duty." See 38 U.S.C. § 101(24)(B),(C) (2012); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Only service department records can establish periods of ACDUTRA or INACDUTRA. 38 C.F.R. § 3.203 (2017); see also Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Unfortunately, a review of the claims file is negative for any service department records associated with the Veteran's DC ARNG service. As such, a remand is necessary to obtain them. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of all service department records and STRs associated with the Veteran's DC ARNG service from the appropriate agency(ies). 2. Verify all periods of ACDUTRA and INACDUTRA service during the Veteran's DC ARNG service, to include the specific dates for each period, with the appropriate agency(ies). 3. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current nature and severity of her bilateral shin splints. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of her bilateral foot disability. After a complete review of the record, the examiner should: a. Diagnose all feet conditions, bilateral or otherwise. b. Reconcile all prior diagnoses of a foot condition with the current findings, to include pes planus, forefoot varus deformity, plantar fasciitis, and hallux valgus. If any prior diagnosis cannot be reconciled with the current findings, explain why. c. As to each diagnosis, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or otherwise related to any period of her active duty, ACDUTRA, or INACDUTRA service, to include the general physical wear and tear she sustained in service, and explain why. d. As to each diagnosis not caused by or otherwise related to any period of service, opine as to whether it is at least as likely as not (50 percent probability or greater) proximately due to or aggravated beyond its natural progression by her service-connected bilateral shin splints and explain why. The examiner is reminded that causation and aggravation are distinct concepts, and each must be addressed when proffering an opinion. e. In rendering an opinion, the examiner should discuss her relevant lay statements. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of her claimed bilateral knee disability. After a complete review of the record, the examiner should: a. Diagnose all knee conditions, bilateral or otherwise. b. Reconcile all prior diagnoses of a knee condition with the current findings, to include chondromalacia patella and excessive lateral pressure syndrome. If any prior diagnosis cannot be reconciled with the current findings, explain why. c. As to each diagnosis, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or otherwise related to her active duty, ACDUTRA, or INACDUTRA service, to include the general physical wear and tear she sustained in service, and explain why. d. As to each diagnosis not caused by or otherwise related to her active duty, ACDUTRA, or INACDUTRA service, opine as to whether it is at least as likely as not (50 percent probability or greater) proximately due to or aggravated beyond its natural progression by her service-connected bilateral shin splints and explain why. The examiner is reminded that causation and aggravation are distinct concepts, and each must be addressed when proffering an opinion. e. In rendering an opinion, the examiner should discuss her relevant lay statements. 6. Once each of the above requests has been completed, to the extent possible, readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs