Citation Nr: 18149251 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-02 556 DATE: November 9, 2018 ORDER New and material evidence having been received, the claim to reopen service connection for a left knee disability, to include chondromalacia patella, is granted. New and material evidence having been received, the claim to reopen service connection for migraines is granted. New and material evidence having been received, the claim to reopen service connection for a right foot disability is granted. New and material evidence having been received, the claim to reopen service connection for a left foot disability is granted. Entitlement to service connection for a lumbar spine disability, diagnosed as degenerative disc disease at L3-L4 and L5-S1 facet arthropathy, is granted. Entitlement to service connection for a right foot disability, diagnosed as degenerative osteoarthritis of the 2nd metatarsal phalangeal joint, is granted. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for cervical degenerative joint disease (claimed as cervicalgia) is denied. Entitlement to service connection for a right hip disability, claimed as bursitis, is denied. REMANDED Entitlement to service connection for esophageal reflux (GERD) is remanded. Entitlement to service connection for antrum erosion, claimed as secondary to GERD, is remanded. Entitlement to service connection for diabetes mellitus (DM) is remanded. Entitlement to service connection for allergic rhinitis (also claimed as sinusitis) is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for a left knee disability, to include chondromalacia patella, is remanded. Entitlement to service connection for a right knee disability, to include chondromalacia patella, is remanded. FINDINGS OF FACT 1. In a November 2008 rating decision, the RO denied the Veteran's claims for service connection for right and left foot disabilities, migraines, and a left knee disability. The Veteran did not appeal that decision and it is final. 2. The evidence received since the November 2008 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claims for service connection for right and left foot disabilities, migraines, and a left knee disability. 3. The Veteran’s lumbar spine disability, diagnosed as degenerative disc disease at L3-L4 with spondylosis and L5-S1 facet arthropathy, is attributable to service. 4. Resolving reasonable doubt in the Veteran’s favor, right foot degenerative osteoarthritis of the 2nd metatarsal phalangeal joint is attributable to service. 5. The Veteran does not have a left foot disability that is attributable to service. 6. The Veteran's preexisting cervical degenerative joint disease did not increase beyond its natural progression during service. 7. The Veteran's preexisting right hip bursitis did not increase beyond its natural progression during service. CONCLUSIONS OF LAW 1. The November 2008 rating decision that denied service connection for right and left foot disabilities, migraines, and a left knee disability is final. 38 U.S.C. § 7105 (2012). 2. New and material evidence has been presented to reopen the claims of entitlement to service connection for right and left foot disabilities, migraines, and a left knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R.§ 3.156 (a) (2018). 3. The criteria for service connection for a lumbar spine disability, diagnosed as degenerative disc disease at L3-L4 with spondylosis and L5-S1 facet arthropathy, have been met. 38 C.F.R. §§ 1110, 1111, 1112, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2018). 4. The criteria for service connection for right foot degenerative osteoarthritis of the 2nd metatarsal phalangeal joint have been met. 38 C.F.R. §§ 1110, 1111, 1112, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2018). 5. The criteria for service connection for a left foot disability have not been met. 38 C.F.R. §§ 1110, 1111, 1112, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2018). 6. The criteria for service connection for a cervical disability, diagnosed as degenerative joint disease, have not been met. §§ 1110, 1111, 1112, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.306, 3.309 (2018). 7. The criteria for service connection for a right hip disability, diagnosed as bursitis, have not been met. §§ 1110, 1111, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to June 2003 and from October 2008 to October 2009. This matter comes to the Board of Veterans Appeals (Board) on appeal from December 2012 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office. The Veteran testified before the undersigned Veterans Law Judge in December 2017. A transcript of the hearing is of record. The Veteran subsequently requested a new Board hearing via video conference, but she withdrew this request in April 2018. I. New and Material Evidence In this case, the RO initially denied service connection for disabilities involving the right and left feet, migraines, and left knee in November 2008. The Veteran did not appeal the November 2008 rating decision and the decision is final. 38 U.S.C. § 7105. Just prior to and following the November 2008 denial, the Veteran served on a second period of active service from October 2008 to October 2009. The service treatment records for that period of service were not on file at the time of the November 2008 rating decision and are relevant to the claims for service connection for disabilities involving the right and left feet, migraines and left knee. Accordingly, this evidence is sufficient to reopen these claims. 38 C.F.R. 3.156. Moreover, since these service treatment records for the most part did not exist at the time of the November 2008 rating decision, the provisions for reconsideration do not apply. See Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014); 38 C.F.R. § 3.156(c). II. Service Connection Back Disability Initially, the Board notes that the Veteran was not provided with an entrance examination for her January 2003 to June 2003 period of active service, as she was serving in the Reserves prior to that period, or for her second period of service from October 2008 to October 2009. The governing VA statute provides that the presumption of soundness applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Thus, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). As there was no service entrance examination performed for those periods of active service, the presumption of soundness at entry into service does not attach for these periods. 38 U.S.C. § 1111. Moreover, the Veteran’s Reserve treatment records prior to January 2003 clearly show that the she had preexisting back problems. In this regard, there is an August 1997 pre-active duty treatment record showing that she was seen for complaints of back pain which she reported had been ongoing for several years. She was diagnosed as having sacroiliitis versus S1 joint dysfunction. Indeed, the basis of the Veteran’s claim is that her preexisting back disability was aggravated by service. Because the Veteran is not presumed to be in sound condition under 38 U.S.C. § 1111 with respect to her sacroiliitis versus S1 joint dysfunction condition, the relevant inquiry is whether this condition increased in severity during her active service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). The Veteran’s service treatment records for her first period of active duty, from January 2003 to June 2003, do not show complaints or treatment related to back problems. Service treatment records for the Veteran’s second period of active service, from October 2008 to October 2009, show that she was seen in March 2009 for lumbago and in April 2009 for complaints of left-sided back pain. Shortly thereafter, in May 2009, she presented to a medical facility with complaints of right-sided back pain that had moved to the entire low back. She said that the pain had come on suddenly while going up and down unfamiliar stairs at a friend’s house. A lumbar magnetic resonance imaging (MRI) performed in May 2009 revealed mild discogenic disease with severe right L5-S1 facet arthropathy. A lumbar spine series performed in October 2009 showed osteopenia (first documented in August 2008), minimal degenerative joint disease at the L4-L5 and L5-S1 level, and minimal anterior spondylosis at L3 and L4. In October 2012, the Veteran underwent a VA examination for the purpose of determining whether her preexisting sacroiliitis versus S1 joint dysfunction was aggravated by her active service. After reviewing the Veteran’s claims file and examining her, the examiner negated a nexus by aggravation between the Veteran’s sacroiliitis and service. In opining that the Veteran’s preservice sacroiliitis was less likely as not aggravated by service, the examiner explained that the Veteran’s present lumbar symptoms, including lumbar paravertebral muscular tenderness, were separate from her sacroiliitis. There is no contrary medical opinion on file. Accordingly, the Board finds that the preponderance of the evidence is against service connection for sacroiliitis based on aggravation. 38 U.S.C. 5107(b). However, the preponderance of the evidence favors granting service connection for a back disability, diagnosed as degenerative joint disease at L4-5 with spondylosis and right L5-S1 facet arthropathy, as being incurred in service. This is based on the lumbar MRI and x-ray findings during the Veteran’s second period of active service in May and October 2009, and on the October 2012 VA examiner’s opinion that her present back complaints and findings were separate from her preservice sacroiliitis condition. 38 C.F.R. 3.303. As the preponderance of the evidence is for the claim, entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right and Left Foot Disabilities The Veteran testified in December 2017 that she underwent bunionectomies in 1978 and 2000 and that her active service marches and duties as a nurse aggravated her bilateral foot condition. Initially, as noted above, the Veteran was not provided with an entrance examination for her January 2003 to June 2003 period of active service, as she was serving in the Reserves prior to that period, or for her second period of active duty from October 2008 to October 2009. The governing VA statute provides that the presumption of soundness applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Thus, as there was no service entrance examination performed for the Veteran’s periods of active service, the presumption of soundness at entry into service does not attach for these periods. 38 U.S.C. § 1111; Smith v. Shinseki, 24 Vet. App. at 45. Moreover, the Veteran’s Reserve treatment records prior to January 2003 clearly document that bilateral bunionectomies were performed in 1997 and 2000. Accordingly, the weight of evidence shows that she had preexisting foot problems. Shortly after the Veteran’s entry into active service in January 2003, she was seen in podiatry complaining of intermittent daily foot pain, right greater than left, at the second and third MTPJs (metatarsophalangeal joints). She reported pain when walking more than a half hour and she was noted to wear athletic shoes with inserts. She requested a physical profile for her chronic foot pain which she was given. Because the Veteran is not presumed to be in sound condition under the provisions of 38 U.S.C. § 1111 with respect to her bilateral bunionectomies, the relevant inquiry is whether her condition increased in severity during her active service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). In this regard, a VA examiner in October 2012 opined that the Veteran’s right and left foot disabilities clearly and unmistakably were not aggravated beyond their natural progression by an in-service injury, event, or illness. He explained that bilateral bunions were present prior to service and were treated surgically prior to service. He said that those conditions did well until further surgical intervention was required in 2000. He noted that the Veteran served on active duty prior to 2000 and as such was not required to wear tights or boots on a daily basis by the military prior to her bunion surgery. He said that he found no evidence to suggest that the Veteran’s monthly Reserve duty and drill duty caused her bunions to worsen. This opinion is consistent with X-rays of the Veteran’s right foot in October 2009 revealing status post bunionectomy with no apparent complication. The above notwithstanding, x-ray findings of the Veteran’s right foot during active duty in October 2009 also revealed most probably degenerative osteoarthritis at the second MTPJ. Although the October 2012 VA examiner did not specifically comment on that finding when he rendered his opinion regarding aggravation, the Board will resolve reasonable doubt in the Veteran’s favor by finding this to be a separate foot disability. Therefore, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for degenerative osteoarthritis at the second MTPJ, right foot is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cervical Spine Disability The Veteran testified in December 2017 that her neck disability likely developed during her first period of active service in 2003 due to the physical rigors of service, including going on marches. Her service treatment records from January 2003 to June 2003 do not show cervical/neck complaints or treatment for such. She also testified and that her neck condition was aggravated by her second period of active service in 2009 when a car trunk hit her face causing her to fall the ground. She said she was treated on an emergent basis at that time and was given heat pads for her neck. A June 2007 VA initial primary care clinic visit record notes that the Veteran hit her head in 2001 with negative imaging at the time. Medical treatment records in August 2008 show that the Veteran underwent a physical examination for the purpose of returning to active duty. The Veteran also at that time underwent a neurology consultation for neck pain. She was noted to have a history of neck pain without trauma. Cervical x-rays revealed multilevel degenerative disease of the cervical spine extending from C4 through T1 without significant neuroforaminal or spinal cord pathology. Electromyelogram/nerve conduction studies were normal. Service treatment records during the Veteran’s second period of active duty include a May 2009 record noting a longstanding history of neck pain and muscle spasm. The Veteran complained at that time of worsening neck pain which she said was exacerbated by desk work. She was also seen for complaints related to a facial scar caused by a trunk hitting her face. She was assessed as having cervicalgia, chronic. As noted above, the Veteran was not provided with an entrance examination for her January 2003 to June 2003 period of active service, as she was serving in the Reserves prior to that period, or for her second period of active duty from October 2008 to October 2009. Thus, as there was no service entrance examination performed for the Veteran’s periods of active service, the presumption of soundness at entry into service does not attach for these periods. 38 U.S.C. § 1111; Smith v. Shinseki, 24 Vet. App. at 45. Although the Veteran asserts that she most likely developed neck problems during her first period of active duty in 2003, her service treatment records for that period are devoid of complaints or treatment for neck problems. Moreover, there is no documentation of neck problems in the medical records until years later, in 2008. As such, the Board finds that the weight of evidence shows that the Veteran’s cervical condition arose after her initial period of service from January 2003 to June 2003, but prior to her second period of active service from October 2008 to October 2009. In January 2013, a VA examiner negated a nexus between the Veteran’s cervical degenerative disc disease and service both on a direct basis and by aggravation. He opined that the claimed condition was less likely than not incurred in or caused by a claimed in-service injury or illness. He pointed out that there was no objective evidence to support that a cervical/neck condition was caused by or a result of any specific event or incident in service per a service treatment record review. He went on to state that there was no objective evidence to support that the Veteran’s neck condition was aggravated over and above its expected natural progression per a claims file review. He further opined that there was no objective evidence to support that a neck condition was a chronic ongoing condition worsened by service per claims file review, medical record review and medical literature review. An earlier medical opinion rendered by a VA examiner in October 2012 similarly negates a nexus between the Veteran’s neck problems and service. In this regard, the examiner reported that there was no hand or neck condition identified on the Veteran’s service entrance exam and, as such, she had no preexisting conditions that were aggravated by service. There are no contrary medical opinions on file. In fact, the Veteran testified in December 2017 that she could not recall a doctor telling her that her cervical disability is related to service. Regarding the Veteran's belief that her neck disability is related to service, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009). However, this matter is the type of medical matter as to which lay testimony is not competent as it involves complex medical findings. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Inasmuch as the weight of evidence is against an essential element of this claim, i.e., (3) competent evidence of a causal relationship ("nexus") between a cervical disability, and a disease or injury incurred or aggravated during service, the claim must be denied. Holton, 557 F.3d at 1366. In reaching that conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against this claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). Right Hip Bursitis The Veteran testified in December 2017 that her right hip bursitis preexisted her active service, but was aggravated by the physical requirements of active service. She said that she self-treated the disability with pain sprays and Lidoderm patches. An August 1997 Reserve treatment record reflects a diagnosis of greater trochanteric bursitis versus TBI tightness. Service treatment records from the Veteran’s first period of service, from January 2003 to June 2003, show no complaints or treatment related to the hips. In December 2007, the Veteran was seen at a VA primary care clinic complaining of bilateral hip pain that was worse at night. She was assessed as having bilateral hip pain. X-ray of the hips showed mild degenerative changes bilaterally. The Veteran reported at a VA physical therapy consultation in January 2008 that she had had off and on again hip pain for years, left worse than right. She was assessed as having trochanteric bursitis, bilaterally. In August 2008, the Veteran underwent a physical examination and diagnostic testing for the purpose of returning to active duty. The testing included a DEXA scan which revealed low bone mineral densities based on World Health Organization criteria, and a T score of the left femoral neck, but not the right femoral neck, indicating osteopenia. Although mild improvement was noted at that time, the Veteran was deemed to be at high risk for fracture and was advised to have a followup DEXA in one year to monitor her response to therapy. Service treatment records for the Veteran’s second period of active service from October 2008 to October 2009 include a bone mineral density study of the left hip, but not the right hip, performed in March 2009 revealing osteoporosis of the left femoral neck, and a high risk of fracture. An April 2009 x-ray report of both hips revealed no acute/chronic osseous abnormality and minimal enthesophyte. An October 2012 VA examination report notes that the Veteran had been diagnosed as having right hip bursitis in the 1980s and has had intermittent right hip pain ever since. He diagnosed her as having right hip bursitis since the 1980s. He went on to opine that it was less likely as not that the preexisting right hip bursitis was aggravated beyond the natural progression by active duty. He explained that current objective findings correlated to normal wear and tear and progression of the previously diagnosed condition. There is no contrary medical opinion on file. As to the Veteran's belief that her right hip disability was aggravated by the rigors of service, while she is competent to report her symptoms, she is not competent to render an opinion as to the diagnosis or etiology of her symptoms as such a matter requires medical expertise which she is not shown to possess. See Davidson, 581 F. 3d at 1316; Jandreau, 492 F. 3d at 1376-77. Thus, greater weight is given to the VA examiner’s October 2012 etiological opinion. Inasmuch as the weight of evidence is against an essential element of this claim, i.e., (3) competent evidence of a causal relationship ("nexus") between right hip bursitis, and a disease or injury incurred or aggravated during service, the claim must be denied. Holton, 557 F.3d at 1366. In reaching that conclusion the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against this claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND Right and Left Knee Disabilities A VA examiner in May 2018 explained that the Veteran’s symptoms from her pre-existing chondromalacia are separate from her neurological complaints involving cramping in the knees and legs. Recent evidence suggests that she has restless leg syndrome, but the evidence also indicates that no clear diagnosis has been made for those symptoms. Her service treatment records show that she complained in February 2003 of leg cramping and night pain. Accordingly, an addendum opinion is required regarding a possible nexus between the Veteran’s in-service and post-service neurological knee and leg complaints. 38 U.S.C. 5103A. Headaches/Allergic Rhinitis/DM/GERD/Antral Erosion In negating a link by aggravation between the Veteran’s preexisting headaches, allergic rhinitis, DM, and GERD disabilities and her periods of active service, a VA examiner in October 2012 opined that there is no literature to support that such disabilities would be aggravated by military life compared to civilian life. That opinion does not adequately address the aggravation question. That is, it does not indicate whether the Veteran’s preexisting headaches, allergic rhinitis, DM, and/or GERD disabilities were worsened in service beyond their natural progression. In order to adequately address that question, the specific facts of the Veteran’s case must be discussed. That is especially so when considering that the Veteran’s assertions of worsening disabilities and the in-service treatment records related to her second period of active duty documenting those disabilities. In specific regard to the Veteran’s DM, she asserts that up until her second period of active service she had been able to control her DM through diet only, but that while on active duty in 2009 she was prescribed oral medication, metformin, for the first time. She also asserts that her medication for GERD was changed while on active duty from Prevacid to Nexium, and that the medication worsened her GERD causing GI bleeding and antral erosion. Her service treatment records show that she switched from Nexium to Prevacid in February 2009. They also show that she was treated for worsening GERD symptoms in September 2009. In sum, the Board finds that the October 2012 VA medical opinions are too general and inconclusive to constitute probative nexus evidence since there is no discussion as to the specific facts of the Veteran’s case. See e.g. Sacks v. West, 11 Vet. App. 314, 317 (1998). Accordingly, the Veteran should be afforded new VA examinations. 38 U.S.C. 5103A(d). Lastly, in regard to the Veteran’s claim for service connection for allergic rhinitis, consideration must be given to the specific VA regulations regarding allergic conditions as set forth in 38 C.F.R. § 3.380. The matters are REMANDED for the following action: 1. Return the claims file to the May 2018 VA examiner, if available, for an addendum opinion regarding the Veteran’s neurological complaints of knee and leg cramping. If the original examiner is not available, the file should be reviewed by another examiner of similar qualifications to obtain the opinion. If an additional examination is deemed necessary by the examiner to respond to the question presented, one should be authorized. After review of the entire record, the examiner is asked to specifically address the question: Whether the Veteran has a diagnosed right and/or left neurological knee/leg disability and, if so, is it at least as likely as not (50 percent or greater probability) that any such diagnosis is related to her active service from January 2003 to June 2003 and October 2008 to October 2009. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 2. Afford the Veteran appropriate VA examinations to determine whether it is at least as likely as not (probability of 50 percent or greater) that her current headaches, GERD, antral erosion, DM, and/or allergic rhinitis disabilities, to include any specific allergies, were incurred in or aggravated by her military service. The examiner is asked to review the entire electronic claims file and the provisions of 38 C.F.R. § 3.380, and to obtain a detailed history from the Veteran regarding her symptoms and treatment. The examiner should provide an opinion to whether it is at least as likely as not (probability of 50 percent or greater) that any increases of headaches, GERD, DM, arthritis, or allergic rhinitis caused or chronically worsened by a service-connected disability. The examiner must provide a complete explanation for any opinions offered, based on clinical experience, medical expertise, and established medical principles and the facts of the Veteran’s case. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. The examiner is informed that under applicable VA regulations, acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. 3. Then readjudicate the issues on appeal. If any benefit sought on appeal is not granted in full, issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative an opportunity to respond. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shawkey, Counsel