Citation Nr: 18144689 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-30 033 DATE: October 25, 2018 ORDER Entitlement to service connection for a low back degenerative arthritis with spondylosis is granted. Entitlement to service connection for a right hip strain is granted. Entitlement to service connection for right lower extremity radiculopathy is granted. Entitlement to service connection for a left hip disorder is denied. Entitlement to service connection for a left leg disorder is denied. Entitlement to service connection for a bilateral foot disability is denied. Entitlement to service connection for a bilateral knee disability is denied. FINDINGS OF FACT 1. The currently diagnosed low back disability of degenerative arthritis with spondylosis had its onset during active duty service. 2. The right hip strain was caused by the now service-connected back disability of degenerative arthritis with spondylosis. 3. The right lower extremity radiculopathy was caused by the now service-connected low back disability. 4. The Veteran does not have a current left hip disability. 5. The Veteran does not have a current left leg disability (other than left knee disability). 6. The Veteran’s current foot disabilities, to include arthritis: were not incurred in service; symptoms arthritis were not chronic in service or manifested to a degree of 10 percent within a year of service separation; and are not otherwise etiologically related to service. 7. The Veteran’s currently diagnosed right and left knee disabilities did not have their onset during service and are not otherwise causally or etiologically related to it. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria to establish service connection for a low back disability have been met. 38 U.S.C. §§ 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria to establish service connection for a right hip disability as secondary to service-connected low back disability have been met. 38 U.S.C. §§ 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.310 (2017). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria to establish service connection for right lower extremity radiculopathy as secondary to service-connected low back disability have been met. 38 U.S.C. §§ 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.310 (2017). 4. The criteria to establish service connection for a left hip disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria to establish service connection for a left leg disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria to establish service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 7. The criteria to establish service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to October 1979. He had subsequent unverified service with the National Guard of Indiana. Regarding the Veteran’s service connection claim for a bilateral foot disability, the Board notes that the claim was previously denied in a May 2000 rating decision. At the time, the only evidence considered was a letter dated on March 22, 2000, requesting medical evidence to establish the existence of a chronic bilateral foot disability and show that it is related to service. Since the Veteran did not reply by May 2000, the RO denied the claim as not well-grounded. Nevertheless, the Board finds that the October 1976 service entrance examination was received in June 2011, and additional military personnel records were received and associated with the claims file between 2010 and 2016. Accordingly, the Board finds that these records were not previously considered by the May 2000 rating decision, the May 2000 claim is being reconsidered in this Board decision. See 38 C.F.R. § 3.156(c). Additionally, the issue of entitlement to an initial rating in excess of 50 percent for unspecified anxiety disorder is part of a different appeal stream that is currently being developed at the RO at the post-notice of disagreement stage, and the RO has not yet issued a statement of the case regarding these claims. The Board acknowledges that ordinarily this claim should be remanded for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999); however, the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran’s notice of disagreement has been acknowledged by the RO and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized. As such, the Board need not direct the RO in a remand to address this claim. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). The Veteran is currently diagnosed with bilateral foot arthritis, which is a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on “chronic” in-service symptoms and “continuity of symptomatology” after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the “chronic” in service and “continuous” post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to “chronic” diseases at 3.309(a)). In cases where the service treatment records (STRs) are unavailable, the Board has a heightened duty to assist the veteran in the development of the claim, to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule. Service Connection for Low Back, Right Hip, and Right Leg Disabilities The Veteran asserts that his currently diagnosed back disability had its onset during active duty service as a result of a jeep accident. The evidence shows current disabilities of the back, diagnosed as degenerative arthritis of the spine and spondylosis, and right hip, diagnosed as right hip strain. See e.g., September 2017 VA examination reports. The Board next finds that the evidence is at least in equipoise as to the question of whether the currently diagnosed low back disability had its onset during active duty service, and that the right hip disability was caused by the low back disability. Other than the October 1976 entry examination, which shows a normal spine, all other service treatment records were deemed unavailable. This includes subsequent Reserve service treatment records. In support of the claim, the Veteran continuously and consistently described a jeep accident he had in service, which he reports resulted in severe back pain, and required treatment in the hospital. The Veteran submitted detailed lay statements authored by service-members, friends, and family, which indicate there was an in-service jeep accident and continuous back pain since service. The Veteran additionally submitted a private April 2018 medical opinion, in which the physician indicated that the Veteran was physically examined and the claims file was reviewed. The physician noted that the Veteran’s October 1976 service entrance examination was clear of any complaints of a back problem, and the Veteran was not noted to be on any medications at that time. The examiner further reviewed April 2011 x-rays, which showed anterior vertebral body osteophytes and posterior osteophytes, as well as mild spondylosis and facet degenerative joint disease. The physician next considered statements from a service member who supported the Veteran’s assertion of the jeep accident sustained approximately in 1978. Another service member who met the Veteran subsequently during their Reserve service indicated that the Veteran was constantly in excruciating pain. In addition, statements from family members indicating that the Veteran was in pain since his return from service and their knowledge of his in-service jeep accident were also considered. The physician opined in April 2018 that it is as likely as not that the Veteran’s back condition began in service and continued uninterrupted to the present. The physician explained that prior to service the Veteran was very active, had a morning newspaper route, walked three miles to school, and helped work on the family farm. Thereafter, during service in a combat support group in Hawaii, the Veteran was a gunner on a jeep, and during training the driver took a sharp turn that threw him out of the jeep. This incident was the beginning of back pain, and the Veteran reported that he received treatment for it in the troop medical center. The Veteran also reported that since that time he had back pain that progressively worsened over the years. It was noted that the Veteran had a motor vehicle accident in 2004; however, the physician in April 2018 further explained that, other than the lay reports regarding continuity, the April 2011 x-rays noted posterior and anterior osteophytes when the Veteran was only 55-years-old. The physician stated that it was not possible to have that type of finding based on age alone, and this is indicative of a history of trauma, since osteophytes take a long time to form and would have taken longer than seven years to form, so could not be from the 2004 accident. It was explained that osteophytes form when ligaments and tendons around the spine bones and joints are damaged or inflamed and happen over time. The physician concluded that it was not possible to determine how much each individual accident had contributed to his back, but that the 2004 accident exacerbated the back problem that began in service. Evidence weighing against the claim includes a May 2016 and September 2017 VA examination reports. A May 2016 examination report reflects confirmed diagnoses of degenerative arthritis of the spine and right lower extremity radiculopathy. The Veteran reported that he fell of a jeep in service and hit his back on a lava rock, which resulted in him being on light duty for the rest of service. Because service medical records were not available, the examiner relied on lay assertions by the Veteran and his family. The examiner added that, if VA does not rely on lay assertions, then the opinion must be changed to less likely than not; however, the examiner then stated that a nexus could not be established due to lack of medical records. The September 2017 VA examiner opined that it was less likely than not than the Veteran’s lumbar spine condition was due to military service or falling off a jeep during active duty. The examiner noted that service treatment records were not available, but acknowledged the lay statements made by the Veteran, service-members, friends, and family “attesting to some sort of in service injury.” The examiner further noted that the Veteran did not provide any medical documents regarding treatment of a lumbar spine disability after discharge from service. The examiner noted that the Veteran held two post-service jobs, one which required lifting up to 40 pounds and one which required lifting up to 50 pounds, as well as a motor vehicle accident in December 2004, which resulted in complaints of upper back and shoulder pain. It was further noted that the Veteran did not seek treatment at VA until 2011, and review of numerous x-rays, to include in September 2017, did not reveal compression fracture or old injury. The examiner concluded that it was not possible to relate the Veteran’s current complaints of lumbar spondylosis to service, and, therefore, the degenerative changes were less likely than not incurred in or caused by service. The Board assigns low probative value to the May 2016 and September 2017 opinions. Notably, the May 2016 opinion solely relied on the lack of medical evidence after indicating that the lay assertions were probative, and as such amounts to nonevidence. In addition, the September 2017 opinion did not explain why a 2004 accident that showed only cervical spine and shoulder injuries had anything to do with the Veteran’s low back disability, nor was any explanation given as to why the Veteran’s lay reports and the type of injury sustained in service was not the type that could cause the currently diagnosed disabilities. After a careful review of the evidence, lay and medical, the Board finds that, while further development could be undertaken for yet another medical opinion, the evidence is at the very least in equipoise as to whether the Veteran’s low back disability had its onset during active duty. In this regard, the Board notes that the 2004 accident resulted in upper back complaints not low back complaints, and evidently, only x-rays of the cervical spine were done. The majority of STRs are unavailable due to no fault on the part of the Veteran, despite his attempts to obtain those throughout the pendency of the appeal. Moreover, the Board finds the Veteran’s lay assertions both competent and credible. Therefore, resolving any reasonable doubt in favor of the Veteran, the Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that the low back disability began in service and was so incurred in service. See 38 C.F.R. § 3.303(d). The finding that the Veteran has had a low back disability, to include chronic pain since service, that is well documented by the competent and credible lay evidence, tends to show that the same symptoms that the Veteran asserted began in service were the basis for the later diagnosed low back disability. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993). Regarding the Veteran’s right hip disability, during the September 2017 VA examination, the examiner diagnosed right hip strain. The examiner also diagnosed “degenerative arthritis bilateral sacroiliac joints.” The examiner opined that the Veteran’s bilateral hip disability was at least as likely as not due to the lumbar spine disability. The VA examiner explained that the Veteran had a history of back pain and had been found to have mild spondylosis. In addition, recent x-rays showed evidence of bilateral sacroiliac joint arthritis, and although the hip joints themselves appeared normal in 2017 (despite some abnormality noted in the 2016 x-rays), the sacroiliac joints connect the base of the spine with the pelvis of both sides of the body. The examiner further explained that the hip pain the Veteran experiences was due to the sacroiliac joint arthritis, which per VA guidelines is part of the lumbar spine assessment, and as such, due to or the result of the Veteran’s back disabilities. Accordingly, service connection is warranted on a secondary basis. Regarding the Veteran’s claim for a right leg disability, the Board finds that the evidence shows he was diagnosed with right lower extremity radiculopathy, which was directly attributed to his now service-connected low back disabilities. Accordingly, service connection is warranted on a secondary basis. See 38 C.F.R. § 3.310. Service Connection for Left Hip and Left Leg Disorders The Veteran asserts that he has left hip and left leg disabilities, and that they are related to service; however, the weight of the evidence demonstrates that the Veteran does not have a functionally impairing current left hip disability or a left leg disability. While the Veteran reported leg and hip pain, examination of the legs and left hip in September 2017 was normal. No clinical diagnosis of a left hip, right leg, or left leg was rendered, and no functional loss was noted to result from the reported pain specific for the left hip or either leg. In the absence of proof of a current disability, there is no valid claim of service connection. In analyzing this claim, the Board recognizes that the Veteran is competent to report his observable symptoms and signs of a left hip and or left leg conditions; however, his lay statements are not competent to establish that he has a current disability, as he is not shown to be competent to render a medical diagnosis, and the reported symptoms do not show functional impairment. Notably, the May 2016 VA examiner noted that, although the Veteran reported symptoms of left lower extremity radiculopathy, there was insufficient objective evidence found to diagnose the condition. For the reasons and bases discussed above, the preponderance of the evidence is against the Veteran’s service connection claims for left hip and left leg conditions, and they therefore must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Bilateral Foot and Knee Disorders The Veteran asserts that his bilateral foot disability is related to marches and other physical activities during his active duty service. He generally asserts that his bilaterall knee disabilities are related to service. Initially, the Board notes that the Veteran’s has a current diagnosis of bilateral hammertoes, left hallux valgus, and bilateral foot arthritis. He also has a current diagnosis of bilateral knee strain. See e.g., September 2017 VA examination reports. The Board next finds that the weight of the lay and medical evidence of record demonstrates that the current foot disabilities were not incurred in service and symptoms of arthritis of the feet were not chronic, were not continuous since service, and did not manifest within one year of separation. While the Veteran undertook military duties during service that included marching and wearing boots, the weight of the evidence shows not foot injury during service. As previously noted, the service treatment records are unavailable for review. Nevertheless, during his September 2017 VA examination, the Veteran denied any specific injury to either his feet or knees, and reported that the only treatment he received was to shave off calluses from his feet. The competent evidence shows that the bilateral knee strain is due to the bilateral foot arthritis. In a July 2010 note, Dr. R.M. indicated that the Veteran’s records were destroyed but noted a history of bunion surgery for both feet approximately 10 years earlier. The attached records assessed that x-rays of the feet revealed old foot surgeries, well healed. The physician further noted that the Veteran was “desiring to get some disability from the military” and the note was for that purpose. During a May 2016 VA examination for the feet, the VA examiner confirmed diagnoses of bilateral hallux valgus, bilateral arthritis, and bilateral bunionectomy with residual pain. The Veteran reported that the onset of his foot disabilities was in 1977 because of wearing combat boots and running, that he went to the medical clinic to have calluses shaved off while in service, but received no other treatment while in service. The Veteran reported that the pain worsened over time, but was not constant, and occurred after prolonged walking, prolonged standing, and when it rained. The VA examiner opined that a nexus to service could not be established. During a September 2017 VA examination for the feet, the Veteran attributed his foot problems to the time in service, wearing boots, and getting jungle rot. The Veteran indicated that he received no treatment during service, but sought treatment after service from a private podiatrist in the 1980s, and eventually had surgery on both feet for bunions in 2000, which involved breaking bones in the feet to help correct the condition, with continued foot pain with any weight bearing. The Veteran stated that the condition progressed since service. The VA examiner confirmed diagnoses of bilateral hammertoes, left hallux valgus, and bilateral foot arthritis. The VA examiner opined that the Veteran’s bilateral foot disabilities were less likely than not related to road marches during service. The V examiner noted that the pertinent medical evidence showing surgery years after service in 2000 for bilateral bunions and hammertoes and treatment for hallux valgus. The VA examiner noted that the private physician indicated that the records from 2000 were destroyed, but considered the Veteran’s reports of foot pain since service. The VA examiner indicated that hallux valgus was the most common forefoot abnormality and was typically related to ill-fitting shoes, or a congenital condition, that prolonged road marches alone would not account for the condition, and, while ill-fitting boots could be a factor, the Veteran did not present for treatment for hallux valgus until 2000, many years after separation from service. The examiner added that the Veteran worked from 1993 to 2007 at Ford Motor Company as a machine operator, which required prolonged standing in boots. The examiner further opined that arthritis was likely a result of the post-service surgery in 2000 and abnormal weight bearing that was not suggested to be related to service. During the September 2017 VA examination for the knees, the Veteran indicated that he had to do a lot of running and jumping during active duty, that he banged his knees during these activities, but did not have any specific treatment for it while on active duty. The Veteran reported that the pain now was about the same since its onset in service. The VA examiner confirmed a diagnosis of bilateral knee strain, but opined that the knee disabilities were due to nonservice-connected bilateral foot disabilities. The VA examiner explained that the Veteran did not have a documented injury to the knees during service, and there was no evidence of arthritis during service, and the arthritis in the feet likely affected weight bearing and contributed to the strain of both knees. As aforementioned, arthritis is a “chronic disease” and as such is subject to presumptive service connection 38 C.F.R. § 3.303(b)). The evidence does not show that arthritis of the feet manifested to a degree of 10 percent within one year after separation from service to warrant presumptive service connection on that basis. 38 C.F.R. § 3.307. The weight of the evidence also shows no chronic symptoms of arthritis of the feet in service or continuous symptoms of arthritis of the feet to warrant presumptive service connection under 38 C.F.R. § 3.303(b). The Veteran specifically reported that the only treatment he received in service was for skin disorders in the feet. Furthermore, the 2010 private treatment records do not mention any history of arthritis or arthritis symptoms in service, but rather only indicate that there was evidence of old foot surgeries that were well healed. The first objective evidence of arthritis was not until 2017, where it was confirmed by x-rays that were conducted in conjunction with the VA examination. For these reasons, the Board finds that service connection on presumptive bases is not warranted. The Board finds that a preponderance of the evidence is against the claim on a direct basis. A VA examiner in September 2017 opined that the arthritis was likely the result of the Veteran’s surgeries in 2000. While the May 2016 VA examination relied solely on the lack of medical evidence, a second VA examination in September 2017 considered the full history and findings before rendering the opinion that the arthritis of the feet was likely the result of (post-service) surgeries in 2000. The September 2017 VA examiner’s opinion is adequate and of high probative value as the examiner considered the history of road marches in service when offering the opinion that the currently diagnosed knee strain was secondary to the foot disorders, and was not due to any knee injury. The Veteran’s reports of shaving off calluses and having jungle rot are related to skin disorders not orthopedic foot disorders, and do not suggest relevant symptoms of arthritis or actual foot injury or disease during service. Unlike the back disability, the Veteran denied any specific in-service injury to either the knees or feet, but only reported military activities of training and marches. For these reasons, the Board finds that the evidence does not relate the Veteran’s foot disabilities to service, and competently relate the knee disabilities to the non-service-connected foot disorders, and not to service. Because a preponderance of the evidence is against this claim, service connection must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel