Citation Nr: 18160264 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 16-25 744 DATE: December 27, 2018 ORDER Entitlement to service connection for a right ankle disability is granted. Entitlement to service connection for a left ankle disability is granted. Entitlement to service connection for a right foot disability, to include Achilles tendinopathy is granted. Entitlement to service connection for a left foot disability, to include Achilles tendinopathy is granted. REMANDED In addition, entitlement to service connection, to include as secondary to the Veteran’s service-connected disabilities, for the following issues have been remanded: a hernia, status post-laparoscopic incisional repair; an ileus, status post-laparoscopic incisional hernia repair; and acute cholecystitis and sepsis with bacteremia. FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran’s right ankle disability is etiologically related to his service. 2. The probative evidence of record demonstrates that the Veteran’s left ankle disability is etiologically related to his service. 3. The probative evidence of record demonstrates that the Veteran’s right foot disability, to include Achilles tendinopathy, is etiologically related to his service. 4. The probative evidence of record demonstrates that the Veteran’s left foot disability, to include Achilles tendinopathy, is etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have been satisfied. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left ankle disability have been satisfied. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right foot disability, to include Achilles tendinopathy, have been satisfied. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left foot disability, to include Achilles tendinopathy, have been satisfied. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1952 to December 1954, during the Korean Conflict. This matter was remanded in March 2018 to obtain VA examinations for the Veteran’s conditions. The Board notes that through the correspondences of record, it is clear that the Veteran was aware of the location, date, and time of the proposed VA examinations. However, the Board also notes that the Veteran is 88 years of age, he is of limited mobility, the proposed examination site was 3.5-hour drive away, and the Veteran had attempted to arrange transportation to get to the examination (after planning to drive 1.5 hours to get to the transportation). Therefore, the Board finds that there was good cause for the Veteran’s failure to appear at the VA examinations. However, as discussed in the remand section below, for complete resolution of the Veteran’s claims, a VA examination may be necessary and it is the Veteran’s duty to arrange transportation to the examination. Service Connection 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a right foot disability, to include Achilles tendinopathy. 4. Entitlement to service connection for a left foot disability, to include Achilles tendinopathy. The Veteran asserts that he has bilateral leg conditions and that these conditions are connected to his time in service. More specifically, the Veteran asserts each of these disabilities is due to the marching he did in service as a bandsman, which required him to dig his heels into the pavement. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). While the exact diagnosis of the Veteran’s discomfort has changed slightly based on evaluations, it is clear that he has bilateral “heel” discomfort. In May 2010, the Veteran was diagnosed with bilateral, achilles tendinopathy; mild, bilateral retrocalcaneal bursitis; and mild, left plantar fasciitis. In addition, in October 2013, the Veteran obtained a diagnosis of posterior tibial tendon dysfunction. Therefore, the Veteran has current diagnoses. Further, the Veteran was in the marching band while in service. Therefore, the first two elements of service connection are met. Shedden, supra. The analysis now turns to whether the Veteran’s diagnoses are related to his military service. In May 2014, the Veteran’s treating doctor, Dr. F.M., provided an opinion that “the difficulty he is having with his legs is due to the kind and amount of marching he did while a bandsman” in service. A similar opinion is dated April 2012. The Board gives these opinions great probative weight as they are based on a review of the medical record, knowledge of the Veteran, and provide support for their conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In view of the above, the weight of the evidence is for the claim for service connection for the following conditions: a right ankle disability; a left ankle disability; a right foot disability, to include Achilles tendinopathy; and a left foot disability, to include Achilles tendinopathy. Accordingly, the claim is granted. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REMANDED ISSUES 1. Entitlement to service connection for a hernia, status post-laparoscopic incisional repair, to include as secondary to the Veteran’s service-connected conditions, is remanded. 2. Entitlement to service connection for an ileus, status post-laparoscopic incisional hernia repair, to include as secondary to the Veteran’s service-connected conditions, is remanded. 3. Entitlement to service connection for acute cholecystitis and sepsis with bacteremia, to include as secondary to the Veteran’s service-connected conditions, is remanded. The Veteran contends that his diagnoses of a hernia, status post-laparoscopic incisional repair, an ileus status post-laparoscopic incisional hernia repair, and acute cholecystitis and sepsis with bacteremia are secondary to his service-connected bilateral lower extremity disabilities. In particular, the Veteran asserts that he experienced a fall due to his bilateral lower extremity disabilities, which caused a rupture in his “gut wall.” As a result, his treatment providers were concerned that he had a “strangulation” issue because his intestines were protruding a bit from his “gut area” so he underwent a surgical procedure. Following the procedure, he began experiencing uncontrolled diarrhea. Since, he has continued to wear adult diapers and wear a cinch belt around his waist. As a result, he had to undergo a surgical procedure to “place a net over the rupture and stitch it in place.” The Board notes in October 2012, a private treatment provider found the Veteran had a small epigastric hernia in the area where he previously had an incision for a laparoscopic assisted colectomy due to cancer. Consequently, he underwent a laparoscopic incisional hernia repair with mesh. Unfortunately, following the laparoscopic incisional hernia repair with mesh, he suffered from post-operative ileus and abdominal distention. Further in March 2013, he developed acute cholecystitis, sepsis with bacteremia secondary to bacteroides, as well as septic shock and abdominal pain. Given that the Board has found the Veteran’s claimed bilateral ankle and achilles disabilities are service connected, in addition to the Veteran’s bilateral varicose veins disabilities, there is no need for a physical examination for those conditions. Further, the Veteran has asserted that these conditions, as they existed at the time, caused a fall. Therefore, the medical records needed to determine whether the bilateral ankle and achilles disabilities are secondary to the following issues are in the file: a hernia, status post-laparoscopic incisional repair; an ileus, status post-laparoscopic incisional hernia repair; and acute cholecystitis and sepsis with bacteremia. Thus, the Board finds that a medical opinion without an in-person examination is appropriate in this case. However, if the medical professional finds that an in-person examination is warranted, the Veteran should make all reasonable attempts to attend the required examinations. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding whether the Veteran’s hernia, status post-laparoscopic incisional repair is at least as likely as not (1) related to, (2) proximately due to, or (3) aggravated beyond its natural progression by the Veteran’s service-connected bilateral lower extremities conditions. A complete response will address all three statements. In rendering an opinion, the clinician is asked to consider the Veteran’s relevant lay statements. 2. Obtain an addendum opinion regarding whether the Veteran’s ileus, status post-laparoscopic incisional hernia repair is at least as likely as not (1) related to, (2) proximately due to, or (3) aggravated beyond its natural progression by the Veteran’s service-connected bilateral lower extremities conditions. A complete response will address all three statements. In rendering an opinion, the clinician is asked to consider the Veteran’s relevant lay statements. 3. Obtain an addendum opinion regarding whether the Veteran’s acute cholecystitis and sepsis with bacteremia is at least as likely as not (1) related to, (2) proximately due to, or (3) aggravated beyond its natural progression by the Veteran’s service-connected bilateral lower extremities conditions. A complete response will address all three statements. In rendering an opinion, the clinician is asked to address the Veteran’s relevant lay statements. 4. If an in-person examination is needed, the RO should provide enough time for the Veteran to make arrangements to attend the examination and should document all attempts to contact the Veteran. The Veteran’s representative should, if necessary, aid the Veteran in securing transportation to the examination. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock