Citation Nr: 18150412 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-30 989 DATE: November 15, 2018 ORDER New and material evidence having been received, the claim of service connection for a lumbar spine disorder is reopened, and to that extent the appeal is granted. Service connection for anxiety and depressive disorders is granted. Service connection for a left knee disorder is denied. Service connection for a right ankle disorder is denied. Service connection for a left ankle disorder is denied. Service connection for a right foot disorder is denied. Service connection for a left foot disorder is denied. Service connection for a respiratory disorder is denied. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and chronic bronchitis, is remanded. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral syndrome and chondromalacia of the right knee is remanded. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) last denied service connection for disk herniation in an unappealed May 2004 rating decision. 2. The evidence received since the May 2004 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for a lumbar spine disorder. 3. The evidence of record demonstrates that the Veteran’s anxiety and depressive disorders were incurred during service. 4. The evidence of record does not demonstrate that the Veteran has a current left knee disorder. 5. The evidence of record does not demonstrate that the Veteran has current bilateral ankle disorders. 6. The evidence of record does not demonstrate that the Veteran’s right hallux rigidus and plantar fasciitis were incurred in or otherwise the result of military service, to include the noted in-service February 1988 contusion and resultant tendonitis noted in March 1988. 7. The evidence of record does not demonstrate that the Veteran had any in-service disease, injury or event respecting his left foot; the evidence does not demonstrate that the Veteran’s left foot plantar fasciitis was incurred in service or for many years thereafter. CONCLUSIONS OF LAW 1. The May 2004 rating decision that denied service connection for disk herniation is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of service connection a lumbar spine disorder are met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.156. 3. The criteria for service connection for anxiety and depressive disorders have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right ankle disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a left ankle disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a right foot disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for a left foot disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to March 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Reopening Lumbar Spine Claim Prior to the filing of the current claim of entitlement to service connection for a back condition, the AOJ previously denied a claim of service connection for a disk herniation in a May 2004 rating decision; the Veteran was informed of that decision in a May 2004 notification letter. The May 2004 rating decision denied service connection for disk herniation because the record failed to show a clinically diagnosed current back condition and failed to show that such a condition was related to the Veteran’s military service. The Veteran did not submit a notice of disagreement or any new and material evidence with respect to his back claim within one year of that May 2004 notification letter. As no notice of disagreement or new and material evidence was received respecting the migraine headaches, hypertension, and lumbar spine claims within one year of the May 2004 notification letter, the May 2004 rating decision is final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for a lumbar spine disorder. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The evidence received since the May 2004 rating decision includes evidence of arthritis in the back and a private opinion linking the Veteran’s current back complaints to both his military service and his service connected right knee disability. As a current diagnosis and medical nexus were lacking at the time of the May 2004 rating decision, the Board finds that such evidence is new and material, and it has a reasonable possibility of substantiating the claim. Accordingly, the lumbar spine claim is reopened at this time. See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Psychiatric Disorder VA treatment records show the Veteran has a current diagnosis of depression; a March 2018 private examiner diagnosed the Veteran with anxiety and depressive disorders. The Veteran had no mental health issue at the time on his entrance into service. In September 1994, during service, the Veteran was hospitalized for oxycodone overdose and diagnosed with adjustment disorder with mixed emotional features. In their lay statements, the Veteran’s sisters described his personality changes upon returning home after service. Based on the above, the March 2018 private examiner opined that the Veteran’s anxiety and depressive disorders at least as likely as not began during active service. Based on the foregoing evidence, the Board concludes that the Veteran has a current diagnosis of anxiety and depressive disorders that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Left Knee Disorder Initially, although the Veteran believes he has a current left knee diagnosis, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). In November 2014, the Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of knee pain, he did not have a diagnosis of a left knee disorder because there was no pathology to render a diagnosis. The other evidence of record, including the Veteran’s VA treatment records, does not demonstrate any treatment for, complaints of, or diagnosis of any left knee disorder. Based on the foregoing evidence, the Board finds that a current left knee disability has not been shown on appeal. Accordingly, service connection for a left knee disorder must be denied based on the evidence of record at this time. See 38 C.F.R. § 3.303; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.”); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). Bilateral Ankle Disorders After review of the evidence of record, including the Veteran’s VA treatment records, the Board reflects that the evidence of record does not demonstrate any treatment for, complaints of, or diagnosis of any bilateral ankle disorders. Based on the foregoing evidence, the Board finds that current bilateral ankle disabilities shown on appeal. Accordingly, service connection for bilateral ankle disorders must be denied based on the evidence of record at this time. See 38 C.F.R. § 3.303; McClain, supra; Brammer, supra. Right Foot Disorder A review of the Veteran’s service treatment records demonstrates complaints of marked tenderness of the right dorsum of his foot in February 1988. X-rays obtained at that time noted no abnormalities. In a follow-up treatment record in March 1988, it was noted that the Veteran had struck his right foot on a table in February 1988; in March 1988, he continued to complain of pain on standing and pain in the dorsum of his foot. After examination, he was diagnosed with tendonitis secondary to trauma that was aggravated by his laces of his boots being tied too tightly. After that record, there is no further complaint with respect to his right foot throughout his service treatment records. On his January 1995 separation examination, the Veteran’s feet were noted as normal. The Veteran was not diagnosed with hallux rigidus or plantar fasciitis until 2000, years after his separation from service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). In a November 2014 Foot DBQ, the examiner opined that the Veteran’s right foot condition was not at least as likely as not related to an in-service injury, event, or disease, including the February 1988 injury. The rationale was that the in-service injury, which was documented as a contusion in February 1988 and as tendonitis in March 1988, did not correlate with the Veteran’s present diagnoses and they were likely independent of each other. Although the Veteran is shown to have a current disability and an in-service injury of his right foot, the Board must find that service connection for a right foot disorder is not warranted at this time. This case turns solely on whether there is a nexus to military service. Although the Veteran is competent to report having experienced symptoms of right foot pain since service, he is not competent to provide a diagnosis or medical opinion in this case or determine that these symptoms were manifestations of hallux rigidus or plantar fasciitis. The issue is medically complex, as it requires the ability to differentiate between diagnoses with the overlapping symptom of pain. See Jandreau, supra. The sole competent evidence regarding a nexus in this case is the November 2014 examiner’s medical opinion. That examiner, after examination of the Veteran and review of the claims file, including the Veteran’s contentions, lay statements, and noted right foot injury during service, concluded that the Veteran’s right hallux rigidus and plantar fasciitis were not related to military service. The Board finds that opinion to be the most probative evidence of record with respect to a nexus in this case, and there is no evidence of record to refute that examiner’s conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, service connection for right hallux rigidus and plantar fasciitis must be denied on the basis of the evidence of record at this time. See 38 C.F.R. § 3.303. Left Foot Disorder The Veteran’s service treatment records are void of any complaint of, treatment for, or diagnosis of any left foot disorders. On his January 1995 separation examination, the Veteran’s feet were noted as normal. The Board reflects that post-service treatment records document that left foot plantar fasciitis is shown to have been diagnosed many years after discharge from service. See Maxson, supra. The Board reflects that a VA examination has not been obtained as of this decision with respect to the Veteran’s left foot disorder. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Board reflects that there is no evidence in this case suggesting that he has a current left foot condition that is causally related to his military service or was ever present during his active service. This is insufficient to warrant the need to provide a medical examination as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). In short, although the Board acknowledges the Veteran’s generalized statements of record that he has a left foot disorder due to military service, the Veteran has not demonstrated any disease, injury, or event in this case on which a claim of service connection can be granted in this case as to his left foot disability. Thus, the low threshold for obtaining a medical opinion in this case has not been met, and a remand in order to obtain a medical opinion in this case is not warranted. See McLendon, supra. Consequently, as there is no evidence in this case of an in-service disease, injury, or event, the Board finds that the second element of service connection has not been met in this case with respect to the Veteran’s left foot claim. Likewise, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Accordingly, the Veteran’s service connection claim for a left foot disorder must be denied based on the evidence of record at this time. See 38 C.F.R. § 3.303. REASONS FOR REMAND Respecting the Veteran’s cervical spine claim, the Board reflects that the Veteran was shown to have a complaint of neck pain during military service in July 1994. The November 2014 DBQ opinion erroneously stated that there were no documented entries for neck pain in the service treatment records. Consequently, the November 2014 examiner’s opinion is factually inaccurate and inadequate, and a remand is necessary in order to obtain another, adequate VA examination and medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). While the record contains a contemporaneous VA examination regarding the Veteran’s patellofemoral syndrome, chondromalacia, right knee (right knee disability), the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements or pain on weight-bearing testing. A remand is therefore warranted in order to obtain an adequate VA examination that addresses the current severity of that disability. See Barr, supra. Additionally, the right knee examination required on remand could result in evidence that would significantly impact a decision on the issue of service connection for a back condition, the issues are inextricably intertwined. Specifically, this examination may provide evidence that the Veteran’s service connected right knee disability results in an altered gait that aggravates the Veteran’s back condition, as asserted in Dr. M.B.’s April 2018 opinion. The medical evidence currently of record refers to an altered gait within the context of low back pain radiating to the right lower extremity. As such, a remand of the claim of service connection for back condition is required. Finally, respecting the Veteran’s respiratory disorder, the Board reflects that the Veteran has been diagnosed with chronic obstructive pulmonary disease (COPD) many years after discharge from service. The Veteran was also diagnosed with chronic bronchitis during his August 2014 VA examination; the Veteran is also shown throughout the appeal period to be a pack-a-day smoker for more than 30 years. Statements from his sisters of record indicate that the Veteran had difficulty breathing when he got out of service. His service treatment records reflect a positive skin test for tuberculosis in February 1989. A follow up chest x-ray was within normal limits. He began a course of isonicotinic acid hydrazine (INH) therapy in March 1989. The Veteran’s reported exposure to propane gas on September 10, 1993. A few hours later, he noticed “raspy” in chest and shortness of breath. The next night he developed a fever and increased coughing. He sought treatment on September 12, 1993. Radiology reports from September 12, 1993 taken six hours apart both note prominence of interstitial lung markings, indicative of bilateral viral pneumonitis. The September 15, 1993 record found very little interval change, with prominent interstitial lung markings still felt to represent either chronic or acute interstitial lung disease. This record notes that the “[p]resence of underlying COPD cannot be entirely excluded” and the Veteran’s long history as a smoker, which predated service by nearly a decade. His January 1995 Report of Medical History, which confusingly was dated January 1993 and refers to events occurring in October 1995 despite being signed by the reviewing physician in February 1995, noted a history of tuberculosis with baseline scarring in bases without acute disease. At that time, the Veteran specifically denied shortness of breath and chronic cough. No lung abnormality was noted on his January 1995 separation exam. His accompanying chest x-ray was normal and his lungs were clear. On appeal, the Veteran has asserted that his respiratory disorder it is the result of his military service, to include the noted exposure to propane in 1993. The August 2014 VA examiner opined that there was one entry of bronchopneumonia in 1993 with a follow-up, but no other treatment during service. He noted that a single episode without complication generally did not lead to COPD. Thus, with only one episode without complication, it was less likely than not that the single episode in service was responsible for his COPD. The examiner did not address the Veteran’s chronic bronchitis as related to military service. A private April 2018 medical opinion from Dr. M.B. indicated that she believed the Veteran’s COPD and chronic bronchitis was at likely as not related to military service, as he had respiratory issue during service which has been uninterrupted to the present. Dr. M.B. disagreed that the service evidence documented only a single incident of respiratory problems, and also disagreed with the August 2014 VA examiner’s opinion. She further noted that there was baseline scarring from the tuberculosis noted on his exit examination, and that he had shortness of breath, bronchopneumonia, chest pain, and was diagnosed with interstitial lung disease with little improvement over the course of days during service. She concluded that those same symptoms continued from service to the present. Although the Board acknowledges Dr. M.B.’s opinion, the Board reflects that her opinion does not explain the conclusion that the Veteran’s respiratory disorder continued since 1993, in light of the normal respiratory examination on separation from service and the more than 20 years without any demonstrated respiratory treatment. Moreover, the August 2014 VA examiner did not address the Veteran’s chronic bronchitis in his medical opinion. Finally, neither of the examiners address the Veteran’s significant smoking history. For these reasons, the Board finds that a remand is necessary in order to obtain another VA examination that adequately addresses whether the Veteran’s respiratory disorder is related to military service. See Barr, supra. On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Gainesville and Lake City VA Medical Centers, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether any cervical spine disorders are related to his service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state all cervical spine disorders found, to include any arthritic conditions thereof. Then. the examiner should opine whether any cervical spine disorders found at least as likely as not (50 percent or greater probability) began in service or are otherwise the result of military service, to include the noted treatment for neck pain in July 1994. In addressing the above opinions, the examiner should consider any of the Veteran’s lay statements of record regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Ensure that the Veteran is scheduled for a VA examination to determine the current severity of his right knee disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed where possible. The right knee should be tested for pain in both active and passive motion, in weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is further reminded that should any additional functional impairment be noted during flare-up, repeated use, or due to pain, lack of endurance, incoordination, etc., the examiner should attempt, to the best of his/her ability, to estimate the additional functional loss in degrees. If additional functional loss cannot be estimated, the examiner must provide an explanation for the inability to provide such an estimation. An explanation that the flare-up was not observed, standing alone, is not adequate. Additionally, the examiner should specifically indicate whether the Veteran has an abnormal gait or weightbearing as a result of his right knee disability. If abnormal gait or weightbearing is noted as a result of the Veteran’s right knee disability, the examiner should additionally opine whether any lumbar spine disorder at least as likely as not is (a) caused by; or, (b) aggravated (i.e., chronically worsened) by his service-connected right knee disability, to include any abnormal gait or weightbearing as found above. The examiner should specifically address Dr. M.B.’s April 2018 medical opinion in his/her discussion. The examiner is reminded that he or she must address both prongs (a) and (b) above. Finally, in addressing that opinion, the examiner should consider any of the Veteran’s lay statements of record regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether his respiratory disorders are related to his service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state all respiratory disorders found, to include COPD and chronic bronchitis. Then, the examiner should opine whether any respiratory disorders found, including COPD and chronic bronchitis, at least as likely as not (50 percent or greater probability) began in service or are otherwise the result of military service, to include the noted positive tuberculosis test in 1991 with baseline scarring noted on separation examination, as well as the exposure to propane noted in 1993 with an episode of bronchopneumonia. In discussing the above, the examiner should also address whether the Veteran’s significant smoking history, as well as his normal respiratory examination at separation from service. The examiner should also address the Veteran’s sisters’ lay statements regarding difficulty breathing since service, as well as Dr. M.B.’s April 2018 and the August 2014 VA examiner’s medical opinions. Finally, in addressing the above opinions, the examiner should consider any of the Veteran’s lay statements of record regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Houbeck, Counsel