Citation Nr: 18152888 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 17-56 403 DATE: November 26, 2018 ORDER Service connection for a cervical spine disability, to include as secondary to a lumbar spine disability, is denied. Service connection for a pinched nerve (neurologic condition), to include as secondary to a lumbar spine disability is denied. REMANDED The claim for service connection for a left foot disability is remanded. The claim for service connection for bilateral pes planus (flat foot) is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s cervical spine disability is related to his active service and/or a service-connected disability. 2. The evidence of record has not shown a current diagnosis of a neurologic condition. CONCLUSIONS OF LAW 1. The criteria for service connection, on a direct or secondary basis, for a cervical spine disability, have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for service connection, on a direct or secondary basis, for a neurologic disability, have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to November 1984. This appeal comes before the Board of Veterans’ Appeals (Board) from October 2016 and September 2017 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2016, the RO denied service connection for a cervical spine disability and a neurologic disability. In September 2017, the RO denied service connection for bilateral pes planus (flat foot) and left foot arthritis. The Veteran’s claim regarding service connection for a lung disability is still being developed by the RO, following a Board remand in December 2017, and has not been re-certified to the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Cervical Spine Disability The Veteran asserts entitlement to service connection for a cervical spine disability, to include as secondary to a back disability (lumbar spine disability). While the evidence of record establishes the existence of a current disability, including degenerative disc disease of the cervical spine, service treatment records lack any evidence of an injury, illness, or event relating to a cervical spine disability. Further, the Veteran has not provided any other probative evidence of an in-service injury, illness or event, such as, for example, lay statements from fellow veterans or other witnesses, or private treatment records from his period of service, regarding an in-service cervical spine condition. Furthermore, the Veteran is not service-connected for a lumbar spine disability, for which the Board would have considered this claim on the basis of secondary service connection. The Veteran has only been service-connected for tinnitus and the evidence of record has not shown that his cervical spine disability is secondary to this service-connected disability. The Board acknowledges that the Veteran has not been afforded a VA examination for his cervical spine disability. However, given the fact that there is no probative evidence that the conditions occurred in service, or any indication that the Veteran’s cervical spine disability may be associated with his service, or another service-connected disability, the Board finds that a VA medical examination is not warranted under the duty to assist. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that an examination and medical nexus opinion is required for a service connection claim when there is evidence of current disability or persistent or recurrent symptoms of a disability, evidence establishing in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations, and an indication that the current disability may be related to an in-service event, injury, or disease; but insufficient evidence to decide the claim). Moreover, the Secretary is not obligated to grant a claim for benefits simply because there is no evidence disproving it. See 38 U.S.C. § 5107(a) (explaining that “a claimant has the responsibility to present and support a claim for benefits.”); Skoczen v. Shinseki, 564 F.3d 1319, 1323 – 29 (2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA . . . . the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Therefore, the preponderance of the evidence is against this claim and service connection for a cervical spine disability must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2017). 2. Neurologic Condition The Veteran asserts entitlement to service connection for a pinched nerve, to include as secondary to a lumbar spine disability. The medical evidence, however, has not shown that the Veteran has a current diagnosis of a neurologic condition. As a matter of fact, a July 2015 VA examination for the thoracolumbar spine (lumbar spine) explained that available imaging of the lumbar spine, which was normal, did not support a peripheral nerve disorder originating from the lumbar spine. The VA examiner further concluded that there was no pathology to suggest a peripheral nerve condition for the thoracolumbar spine. Although an August 2015 private treatment record reflects that X-ray findings of the lumbar spine indicated severe lumbar asymmetry with poor nerve signal on the lumbar spine; as well as X-ray findings of the cervical spine which indicated that there was significant “less nerve distress compared to 2012”, and thus, suggests that the Veteran might have had a neurologic condition in the cervical spine in 2012, there was no diagnosis of a neurologic condition. Rather, the chiropractor only provided an assessment/diagnosis for the lumbar and cervical spines. In addition, in an August 2015 diagnostic report, a provider, Dr. S.N.S., specifically noted that there was no nerve root impingement or central stenosis, in diagnosing mild disc degenerate disease of the lumbar spine. Additionally, the evidence of record has not shown a diagnosis of a current neurologic condition in the cervical spine. To prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability. See 38 U.S.C. § 1110 (West 2012); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.). In this regard, the evidence of record has not shown that the Veteran has had a neurologic condition in the lumbar and/or cervical spines at any time during the pendency of this claim. Thus, as the evidence has not shown a current disability of a neurologic condition, service connection, on a direct or secondary basis, must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that “[i]n the absence of proof of a present disability there can be no valid claim.”). REASONS FOR REMAND The Board regrets further delay but finds that an additional development is necessary before a decision can be rendered on the remaining issues on appeal. 1. Service Connection for a Left Foot Disability The Veteran asserts that his left foot disability, which includes bunion and arthritis, is a result of his time on active duty, and additionally and specifically, is related to an in-service left foot injury he sustained while he worked with heavy ammunition daily. In a September 2017 VA examination for foot conditions, the VA examiner opined that the Veteran’s left foot arthritis is less likely than not (less than 50 percent probability) incurred in or caused by the left foot arthritis. As the rationale for this opinion, the VA examiner explained, in pertinent part, that left foot X-rays from an August 2017 MRI were negative and did not reveal any arthritis. To the contrary, however, treatment records reflect that the Veteran has had left foot arthritis and bunion/hallux valgus while this claim has been pending. The existence of a current disability is satisfied when a veteran has a disability at the time he/she files a claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, the Board finds that the VA examiner’s determination that there was no diagnosis of left foot arthritis was erroneous and accordingly, this opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal). Thus, a remand is required for a new VA examination and opinion on the Veteran’s left foot disability. 2. Service Connection for Bilateral Flat Foot The Veteran asserts that his bilateral flat foot, which existed prior to service, was aggravated during military service, and specifically, that it more likely worsened as a result of moving heavy ammunition daily at Fort Sill, Oklahoma. In a September 2017 VA examination for foot conditions, the VA examiner opined that the Veteran’s pes planus less likely than not (less than 50 percent probability) was incurred in or caused by a left foot injury in January 1982. As the rationale for this opinion, the VA examiner explained that Veteran’s bilateral flat foot existed prior to entering military service. The Board notes that a preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 92017). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Here, the VA examiner made no findings about an increase in the severity of the Veteran’s pes planus, if any, and accordingly, failed to render an opinion on whether the Veteran’s pre-service pes planus was aggravated by service. Therefore, a remand is required for a new VA examination and opinion on the Veteran’s bilateral pes planus. Thus, a remand is required for a new VA examination on aggravation. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with an orthopedist (VA examiner) to evaluate the nature and etiology of the left foot disabilities, including bunion/hallux valgus and arthritis; and bilateral pes planus. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be provided to the VA examiner. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left foot disabilities, including left foot bunion/hallux valgus and arthritis, are related to an in-service injury, illness, disease, accident, or event. b. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral pes planus, which pre-existed service, was aggravated by or during the Veteran’s active service. “Aggravation” is defined as a permanent increase in severity beyond the natural progress of the disability. c. In providing the opinions, discuss and consider all pertinent documented medical history, as well as the Veteran’s lay statements about onset, symptomatology and continuity of symptoms. (Continued on the next page)   A detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resorting to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel