Citation Nr: 18152977 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 08-12 044 DATE: November 26, 2018 REMANDED 1. Entitlement to service connection for a bilateral foot disability, to include ingrown toe nails and fallen arches, is remanded. 2. Entitlement to service connection for a bilateral leg disability, to include shin splints and a knee disability, is remanded. 3. Entitlement to service connection for a stomach disorder, to include gastroesophageal reflux disease (GERD), spastic colon and hiatal hernia, is remanded. 4. Entitlement to service connection for residuals of a ruptured appendix, is remanded. 5. Entitlement to service connection for a respiratory disability, claimed as hay fever, to include as secondary to mustard gas exposure, is remanded. (The issues of service connection for a left arm disability, left shoulder disability, neck disability, vaginal cyst, and a breast cyst are the subject of a separate decision by the Veterans Law Judge (VLJ) who conducted a hearing in those matters). REASONS FOR REMAND The appellant is a Veteran who served on active duty for training (ACDUTRA) from February 1981 to July 1981. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2006 rating decision. In February 2011 and October 2015, these claims were remanded for additional development. [As noted in the Board’s October 2015 remand, the February 2011 Board decision also denied service connection for an eye disability and for hypoglycemia, and those matters are no longer before the Board.] The Board is aware that these matters were twice previously remanded and regrets the delay inherent with another remand. Nonetheless considering the medical evidence newly associated with the record, the identification of evidence that remains outstanding, and the inadequacy of the medical opinions currently of record, further development is necessary for proper adjudication of the claims. 1. Entitlement to service connection for a bilateral foot disorder, to include ingrown toe nails and fallen arches. The has reported that her great right toenail was removed in service. See April 2005 VA Form 21-526. Service treatment records (STRs) show bilateral “routine blister” treatment in April 1981, unspecified plantar fascia strain in May 1981, and great right toe onychomycosis (with complete avulsion ) in May 1981. On June 1981 service separation examination, her feet were normal; in a corresponding report of medical history, she reported foot trouble, stating “I have had severe feet [since] I was real little, and I am starting to gain them back.” The examiner noted “all answers [problems identified] EPTS” (existed prior to service). In October 2015, the Board noted that it was unclear whether a foot examination ordered in the February 2011 remand had been conducted (a Supplemental Statement of the Case had not yet been issued), and ordered a foot examination to determine the nature and etiology of the Veteran’s bilateral foot disorder(s), including ingrown toe nails and fallen arches. An October 2015 report of a VA foot examination (dated 6 days prior to the October 2015 remand, but apparently associated with the record following the remand) is now associated with the record, but is inadequate for rating purposes (and fails to address all of the Board’s directives. It notes a sole diagnosis of right foot pes planus, and does not address the etiology of the diagnosed right foot small calcaneal spur and tiny spur along the superior aspect of the navicula (see June 17, 2013 Katherine Shaw Bathea (KSB) Hospital record) and left foot superior and inferior calcaneal spurs (see June 14, 2015 KSB Hospital record). Furthermore, the examiner did not indicate (as was sought) whether there is any factual evidence in the record that clearly and unmistakably shows that a foot disorder pre-existed the Veteran’s (and if so, whether it was aggravated by service). Finally, the examiner reported (without explanation/rationale) that the Veteran removes all of her toenails due to a mental health condition. That statement raises a secondary [to a service-connected psychiatric disability] service connection theory of entitlement. A complete and adequate opinion addressing the etiology of the Veteran’s foot/toe disabilities is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for a bilateral leg disability, to include shin splints and a knee disability. The Veteran claims she has knee pain and shin splints from running and marching in service. See April 2005 VA Form 21-526. Her STRs show a March 1981 left knee abrasion (with negative x-rays), and no other knee complaints/treatment. On June 1981 service separation examination, her knees were normal; in a corresponding report of medical history, she reported “trick” or locked knee; it was noted that [all problems reported] existed prior to service. In October 2015, the Board remanded the matter for an examination to determine the nature and etiology of the claimed leg disability. An April 2017 VA knee and lower leg examination report is associated with the record but is inadequate for rating purposes. First, the opinion appears based on inaccurate factual premise. The examiner noted that bilateral knee degenerative arthritis was diagnosed in 2003. However, a January 1985 Sterling Rock Falls Clinic left knee x-ray showed “symmetrical narrowing of both the medial and lateral compartments of the knee” (suggesting the Veteran may have had left knee arthritis prior to 2003). A medical opinion that discusses the significance of the January 1985 X-ray findings is necessary. Additionally, the examiner noted November 2015 MRI (at KSB Hospital) diagnoses of left knee joint effusion, Baker’s cyst, edema, and probable tear of the posterior horn of the lateral meniscus. Although the examiner explained that the effusion suggests “a more recent injury,” she also noted that the corresponding clinical notes were not available to review. As pertinent records have been identified, they must be secured. 3. Entitlement to service connection for a stomach disorder, to include GERD, spastic colon and hiatal hernia. The Veteran claims she has stomach/intestinal problems related to service. Although her STRs are silent for complaints/treatment during service, she has testified (in September 2010) that she was given “Maalox-type stuff” in service for gas and reflux. On October 2015 VA stomach and duodenal conditions examination, the examiner opined that the Veteran’s GERD and spastic colon are not due to or the result of service, noting “There is no chronicity found with service, nor is an (sic) chronic condition found in the STRs. Her current symptoms may be entirely explained by lifestyle considerations.” That opinion is inadequate for rating purposes, as it is conclusory and lacks adequate rationale. The record shows ongoing complaints of stomach/abdominal pain, heartburn/reflux, irregular bowel movements, and other gastrointestinal problems since March 1983 (approximately 20 months after separation from service). When considered with her report of stomach, liver, or intestinal trouble in a service separation report of medical history, it warrants development for an adequate opinion regarding the etiology of the Veteran’s stomach/GI disorders. 4. Entitlement to service connection for residuals of a ruptured appendix. At the September 2010 Board hearing, the Veteran testified that approximately a month following discharge from service she was hospitalized in Oklahoma for a ruptured appendix. Pursuant to the Board’s February 2011 and October 2015 remands, she was afforded opportunity to submit (or authorize VA to obtain) records of that hospitalization, and was advised she could corroborate the hospitalization for ruptured appendix with lay statements from family/friends with contemporaneous knowledge of the hospitalization. In February 2012 and May 2016 statements, she reported that she was unable to obtain the records because they were destroyed. However, a treatment record associated with the file since notes “Deformity base of the cecum which may be related to appendectomy.” See April 8, 1983 Sterling Rock Falls Clinic report of barium enema study. Although such record does not establish that the Veteran suffered a ruptured appendix ruptured a month following service, it is probative evidence that within 22 months following separation from service she had a history of a postservice appendectomy. This factual record meets the “low threshold” standard as to when an examination for a nexus opinion is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record includes records of March 29, 1983 and later treatment (with Dr. Kevin J. Roache, on referral from an emergency room) from Sterling Rock Falls Clinic. It is not clear if she had earlier treatment at that clinic; if so, records of such treatment may contain pertinent information, and must be sought. 5. Entitlement to service connection for a respiratory disability, claimed as hay fever, to include as secondary to mustard gas exposure. The Veteran claims (See September 2010 hearing transcript) she has a respiratory disability (originally claimed as hay fever) that was incurred from exposure to mustard gas in service. A January 2006 VA memorandum for the record indicates “No record of exposure to mustard gas / lewisite,” and the competent evidence now of record does not show or suggest she has a respiratory disability related to service. However, a review of the record found that potentially pertinent private treatment records appear to be outstanding. VA primary care records dated January 6 and January 10, 2017, note that the Veteran reported she was seen for bronchitis a “couple weeks ago” at the CGH emergency room. The report of such treatment is not associated with the record, and must be sought. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). If records received pursuant to development ordered show or suggest that the Veteran has a respiratory disability that may be related to service, an examination to secure a nexus opinion may be necessary. The matters are REMANDED for the following: 1 Secure for the record complete updated (to the present, all not already associated with the record) clinical records of VA evaluations and treatment the Veteran has received for the disabilities at issue in this appeal since March 2017 (when VA treatment records last added to the record are dated.) Also ask her to identify providers of all private evaluations or treatment she has received for the claimed disabilities since May 2016 (when she last submitted medical records), and to submit authorizations for VA to secure outstanding clinical records from the providers identified, specifically including: - outstanding records from CGH Medical Center, including specifically records pertaining to treatment of bronchitis in approximately December 2016; and, - outstanding records from Katherine Shaw Bathea Hospital. Obtain those records. 2. After the development requested above is completed, arrange for an orthopedic examination of the Veteran to ascertain the nature and etiology of her claimed foot/toe and leg/knee disabilities. The entire record must be reviewed by the examiner, and any tests or studies indicated should be completed. The examiner should provide responses to the following: (a) Identify (by diagnosis) each foot, toe, leg, and knee disability found on examination/shown during the pendency of the claim. [If bilateral calcaneal spurs are not diagnosed, please reconcile such with the June 2013 and June 2015 findings of such noted above.] (b) Regarding each foot/toe and/or leg/knee disability diagnosed, please indicate whether such is at least as likely as not (50 % or better probability) related to the Veteran’s active service/complaints noted therein. The examiner should specifically comment on the significance of the January 1985 left knee x-ray which showed “symmetrical narrowing of both the medial and lateral compartments of the knee,” as well as the November 2015 MRI diagnoses of left knee joint effusion, Baker’s cyst, edema, and probable tear of the posterior horn of the lateral meniscus. (c) Indicate whether there is any factual evidence in the record that clearly and unmistakably (obviously or manifestly) shows that the Veteran had a disorder of either foot/toe and/or leg/knee prior to her military service? If so, identify such evidence, and provide the diagnosis for the pre-existing disorder. (d) If the answer to (c) is Yes, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that such disability WAS NOT aggravated (i.e., permanently worsened) during service or that any increase was due to natural progress)? (e) If a toenail disability is diagnosed, and is determined to not be related directly to service, is it at least as likely as not (a 50% or better probability) that such disability was cause or aggravated (the opinion must address aggravation) by the Veteran’s service-connected psychiatric disability? The examiner must address the October 2015 foot examination report notation that the Veteran’s removes her toenails due to a mental health condition. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. 3. Return the record to the October 2015 VA stomach and duodenal conditions examiner for further review and an addendum opinion. [If that provider is unavailable, forward the record to another appropriate clinician for review and the opinion sought. If further examination is necessary, such should be arranged.] Upon review of the record (to include any new records received pursuant to the development ordered above) the consulting provider should respond to the following: (a) Identify (by diagnosis) each chronic gastrointestinal disability found/shown by the record, including irritable bowel syndrome, GERD, spastic colon, and hiatal hernia. (b) Regarding each gastrointestinal disability diagnosed, indicate whether it at least as likely as not (a 50 % or better probability) is related to the Veteran’s service/complaints noted therein. Comment on the postservice clinical records which show ongoing gastrointestinal complaints since March 1983 (about 20 months after separation from service). (c) Regarding the Veteran’s claim for residuals of a ruptured appendix, opine whether it is at least as likely as not (a 50 % or better probability) that the rupture was related to the Veteran’s service. The examiner should comment on the April 1983 clinical record (detailed above), which shows that approximately 22 months following separation form service the and her report of stomach, liver, or intestinal trouble on June 1981 service separation. 4. Then review the record and arrange for any further development suggested by responses to the development above (e.g. an examination to obtain a nexus opinion if new treatment records suggest a respiratory disability may be related to the Veteran’s service). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel