Citation Nr: 18158644 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-42 884 DATE: December 17, 2018 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a neck disability is denied. Entitlement to a compensable rating prior to May 31, 2016 is granted and in excess of 50 percent thereafter for bilateral pes cavus with pes planus is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of a lumbosacral strain which was incurred in service. 2. A current neck disability was not incurred in service, is not due to an in-service disease or injury, has not been chronic and continuous since service, and did not manifest to a compensable degree within a year of service separation. 3. Prior to May 31, 2016, the Veteran’s bilateral pes cavus with pes planus was characterized by chronic foot pain which was only partially relieved by custom orthotics. 4. Effective May 31, 2016, the Veteran’s bilateral pes cavus with pes planus was characterized by chronic foot pain with shortened plantar fascia and dropped forefoot, resulting in marked impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbosacral strain have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.309. 3. The criteria for entitlement to a compensable rating of 10 percent and no higher prior to May 31, 2016 for bilateral pes cavus with pes planus have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.31, 4.40, 4.45, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1983 to April 2004. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for a low back disability The Veteran seeks service connection for a low back disability. He asserts he originally injured his low back on active duty service as a result of his duties, which included parachute jumps and extended marches with heavy packs. Thus, the Veteran asserts service connection is warranted for this disability. In the alternative, the Veteran asserts his current low back disability is the result of his service-connected bilateral knee disabilities. The Veteran has been granted service connection for retropatellar pain syndrome of the bilateral knees. Considering first the Veteran’s service treatment records, he originally reported low back pain during active duty service. On a November 2003 report of medical history, the Veteran gave a history of recurrent back pain. A concurrent service separation medical examination was negative for any diagnosis of a low back disability. X-rays of the low back at service separation were negative for degenerative arthritis. Review of the Veteran’s service personnel records confirms he was awarded the Senior Parachutist and Air Assault Badges, confirming his participation in airborne operations. Post-service, the Veteran sought VA treatment for low back pain in April 2006. He reported onset approximately two to three years ago, while serving in Iraq, with a gradual worsening since that time. The final impression was of a strain/sprain of the low back. On VA examination in September 2012, a current diagnosis of low back strain was again confirmed by a VA examiner. Based on the lack of objective in-service clinical findings, the VA examiner opined that the Veteran’s current low back strain was not incurred in service. The examiner also opined that this disability was neither caused nor aggravated by his service-connected bilateral knee disabilities. On VA examination in May 2016, a VA examiner opined that the Veteran’s current low back disability was unrelated to his airborne training during service. While the Board acknowledges that both the September 2012 and May 2016 VA examiners are competent to render medical opinions, they failed to acknowledge the Veteran’s reports of low back pain both during and shortly after service. A layperson is competent to testify regarding such observable symptomatology as low back pain. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the present case, the Veteran reported low back pain both during service and immediately post-service, and has reported ongoing symptomatology of the low back pain since service. Although in-service x-rays were negative for degenerative arthritis of the lumbosacral spine, muscular low back pain was noted at that time, and a low back strain/sprain was diagnosed shortly after service in 2006, and again on VA examinations in 2012 and 2016. In light of the Veteran’s credible testimony, confirmed within the service and VA treatment records, of onset of low back pain during active duty and continuity of such symptoms since service separation to the present, the Board finds, after affording him the full benefit of the doubt, that service connection for a lumbosacral strain is warranted. 2. Entitlement to service connection for a neck disability The Veteran seeks service connection for a neck disability, also claimed as a cervical spine disability. He asserts he initially injured his neck in service, and this disability has continued since that time; thus, the Veteran asserts, service connection is warranted for this disability. In the alternative, he asserts that his service-connected bilateral knee disabilities have caused or aggravated a current neck disability. Considering first the service treatment records, the Veteran was not diagnosed with or treated for a neck or cervical spine disability during service. On examination for service separation in November 2003, no abnormalities of the neck or cervical spine were noted. On his concurrent report of medical history, the Veteran reported a history of recurrent back pain, but clarified in the explanation section of that report that this pain involved only the low back. Post-service, the Veteran sought treatment for low back pain within two years of service separation, but did not report any pain of the neck at that time. Thus, based on this evidence, the Board must conclude that the Veteran did not sustain a disease, injury, or chronic disability of the neck or cervical spine during service, as the service treatment records and post-service records are both negative for any diagnosis of or treatment for such a disability. The first diagnosis of record for a disability of the neck or cervical spine dates to May 2008, when the Veteran reported pain of the upper back and bilateral shoulders. X-rays of the cervical spine revealed mild degenerative joint disease. The examiner did not, however, suggest onset of degenerative joint disease during service. X-rays also confirmed a congenital fusion at C2-3. Thus, the first diagnosis of a disability of the neck or cervical spine dates to approximately 4 years after service separation. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Based on this evidence, the Board must conclude a current disability of the cervical spine did not have its onset in service. The Veteran was afforded a September 2012 VA orthopedic examination of his neck. The claims file was reviewed by the examiner, a VA physician, in conjunction with the examination. The Veteran reported that he struck his head on the ground during one of his parachute jumps in service, possibly injuring his neck. He denied, however, seeking any treatment for the neck in service. After examining the Veteran and reviewing the claims file, the VA examiner noted that the Veteran’s fusion of the neck at C2-3 was congenital in nature and likely was not the cause of any of his current discomfort. While the Veteran also had degenerative changes in the cervical spine, these were described by the examiner as mild and minimal, consistent with the Veteran’s age. The examiner found no evidence that degenerative arthritis or any other cervical spine disability had its onset in service, or was related to any service-connected disability. Another VA orthopedic examination was afforded the Veteran in June 2016. A congenital fusion of the cervical spine was again noted by the examiner, as were mild degenerative changes of the spine. Regarding the etiology of such a disability, the examiner, a VA physician, opined that it was less likely than not the Veteran’s current degenerative arthritis of the cervical spine was related to service, to include the Veteran’s activities of parachuting and rappelling from aircraft during service. The examiner noted that medical studies have found no evidence of a nexus between parachuting and degenerative changes of the cervical spine. The examiner also found no evidence of a nexus between any current cervical spine disability and the Veteran’s service-connected disabilities. Thus, based on these competent medical opinions, rendered by VA physicians after both examination of the Veteran and review of the claims file, service connection for a cervical spine or neck disability must be denied. These examiners both found that while the Veteran had a current diagnosis of degenerative arthritis of the cervical spine, this disability had its onset several years after service separation, and was unrelated to any in-service disease, injury, or other incident of service. The examiners also found no evidence of a nexus between the claimed neck disability and any service-connected disabilities. In the absence of any evidence of a nexus between the current neck disability and service, or between the current neck disability and any service-connected disability, service connection for a cervical spine or neck disability must be denied. The Veteran has himself asserted that his current cervical spine disability is the result of his activities of service, or is caused or aggravated by a service-connected disability. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, orthopedic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a cervical spine disability, as such a disability was not incurred in service, did not manifest to a compensable degree within a year of service separation, is not the result of any in-service disease, injury, or other incident of service, and was not caused or aggravated by a service-connected disability. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 3. Entitlement to a compensable rating prior to May 31, 2016 and in excess of 50 percent thereafter for bilateral pes cavus with pes planus The Veteran seeks an increased initial rating for his service-connected bilateral pes cavus with pes planus. He has been granted a noncompensable rating for this disability for the period from January 31, 2013, to May 31, 2016, and a 50 percent rating effective that date. He asserts a higher rating is warranted. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Under Diagnostic Code (DC) 5276 for bilateral acquired flatfoot, a noncompensable initial rating is warranted for mild symptoms relieved by built up shoes or arch supports. A 10 percent rating is warranted for moderate bilateral pes planus where the weight-bearing lines are over or medial to the great toes and there is inward bowing of the tendo Achillis and pain on manipulation and use of the feet. A 30 percent rating is awarded for bilateral flatfoot, which is severe with manifestations of objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for bilateral acquired flatfoot with pronounced symptoms, with manifestations of marked pronation, extreme tenderness of plantar surfaces of the foot, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. A VA podiatry examination was afforded the Veteran in January 2014. His claims file was reviewed in conjunction with the examination. He reported onset of bilateral foot pain in service, especially with jogging and other strenuous physical activity. He currently used arch supports to alleviate his symptoms. On objective examination, the Veteran had bilateral pes cavus. There was no forefoot or midfoot malalignment, hallux valgus, hallux rigidus, or angulation. In support of his claim, the Veteran has submitted written statements regarding his bilateral foot pain. He has reported chronic pain of both feet, worsening with use, which limits his mobility and requires he wear special custom-made shoe inserts, which only partially resolve his pain and discomfort. After review of the lay and medical evidence, the Board finds that, in light of 38 C.F.R. §§ 4.3 and 4.7, a compensable initial rating of 10 percent is warranted for the period prior to May 31, 2016. Affording the Veteran the benefit of the doubt, the Board finds his reports of chronic bilateral foot pain which limits his mobility and is only partially resolved with shoe inserts are more analogous to moderate symptomatology, for which a 10 percent rating is warranted. The Board also finds, however, that the preponderance of the evidence is against a disability rating in excess of 10 percent for this period. The lay and medical evidence of record does not demonstrate more than moderate impairment, without manifestations of objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, as would warrant a 30 percent rating prior to May 31, 2016. The treatment notes and examination reports of record for this period described the Veteran’s gait as within normal limits, and his feet were without swelling, characteristic callosities, extreme tenderness, or marked deformity. Considering next the period commencing May 31, 2016, the Veteran has been granted a 50 percent rating for this period. This award represents the maximum schedular rating for bilateral pes planus; nevertheless, the Board must consider entitlement to an increased rating under other diagnostic criteria for the feet, as well as the possibility of an extraschedular rating. After consideration of all evidence of record for this period, the Board concludes a rating in excess of 50 percent for this period on appeal is not warranted. While the Veteran’s reports of chronic bilateral foot pain were noted on VA examination in May 2016, he was able to walk on his own. He also denied using any assistance devices other than shoe inserts. A higher rating is warranted if there is loss of use of a foot, in which case the feet would be separately rated, and the ratings combined. See 38 C.F.R. § 4.71a, DC 5167. However, the evidence does not show any foot disability equivalent to loss of use of a foot. See 38 C.F.R. § 4.63. His ability to stand and walk on his feet, although limited by pain, clearly reflects more function than would be served by amputation of his feet. See 38 C.F.R. § 4.63. Thus, the Board finds that no other diagnostic criteria for foot disabilities would result in a higher evaluation for the Veteran’s service-connected bilateral pes cavus with pes planus. In conclusion, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Thus, based on the above, the Board finds a disability rating in excess of 50 percent for the Veteran’s bilateral pes cavus with pes planus is not warranted for any time during the appeals period. As a preponderance of the evidence is against the award of an increased rating for this period, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274   F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel