Citation Nr: 1806559	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  14-03 615	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for a lumbar spine disability.

2.  Entitlement to service connection for a left ankle disability, other than left lower extremity neuropathy (posterior tibial, external popliteal, musculocutaneous, anterior tibial, anterior crural, external cutaneous nerve of the thigh, and ilioinguinal nerves), to include left ankle arthritis and left ankle torn Achilles tendon.

3.  Entitlement to service connection for bilateral foot disorder, including plantar fasciitis.


REPRESENTATION

Appellant represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel


INTRODUCTION

The Veteran had active military service from March 1987 to August 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

In July 2017, the Veteran testified before the undersigned Veterans Law Judge at a live videoconference hearing.  A transcript of the proceeding is of record.

In a July 2017 rating decision, the Veterans Benefits Administration (VBA) granted service connection for left lower extremity neuropathy-specifically, the posterior tibial, external popliteal, musculocutaneous, anterior tibial, anterior crural, external cutaneous nerve of the thigh, and ilioinguinal nerves.  In response, the Veteran did not appeal either the rating or effective date assigned for these now service-connected disabilities, so this issue is no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating that he has to separately appeal these "downstream" issues).  Accordingly, the Board has recharacterized the service connection claim for a left ankle disability remaining on appeal as reflected above.

As will be explained below, the service connection claim for bilateral foot disorder, including plantar fasciitis, requires more development before the Board can make a determination, so the Board is remanding this issue to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The most probative evidence of record reflects that the Veteran's currently diagnosed degenerative disc disease (DDD) of the lumbar spine is etiologically related to his active military service.

2.  The most probative evidence of record reflects that the Veteran's currently diagnosed degenerative joint disease (DJD) of the left ankle is etiologically related to his active military service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for lumbar spine DDD have been met.  38 U.S.C. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

2.  The criteria for service connection for left ankle DJD have been met.  38 U.S.C. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  In this case, the Board is granting in full the benefits sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.
II.  Legal Criteria for Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service.  38 C.F.R. §§ 3.307, 3.309(a).  This presumption is rebuttable by probative evidence to the contrary.  Id.

When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question.  Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b).  There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.  Walker, 708 F.3d at 1336.

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service.  38 C.F.R. § 3.310.  In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities.  Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998).  In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition.  See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b).

Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a).  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

III.  Service Connection for Lumbar Spine DDD and Left Ankle DJD

In July 2017, the Veteran's private physician, Dr. S.A., submitted several medical statements regarding the issues on appeal.  Initially, Dr. S.A. noted that the Veteran underwent a private medical examination in May 2017, where he was diagnosed with degenerative disc disease of the lumbar spine and degenerative joint disease of the left ankle.  Following physical evaluation of the Veteran, Dr. S.A. opined that both the lumbar spine DDD and left ankle DJD were related to the Veteran's active military service.  In support of this determination, the examiner first addressed the original in-service injuries.  See STRs dated in Oct. 1991 (documenting lumbar sprain injury); and, Apr. 1987, Oct. 1987, April 1988, and Dec. 1988 (documenting left ankle injuries)).  After addressing the claims file, including the Veteran's STRs, post-service medical records, and lay statements, Dr. S.A. concluded that the medical history does not support any other cause for the Veteran's current lumbar spine and left ankle symptoms other than his initial injuries while in the infantry.

Accordingly, given the favorable nexus evidence of record, the Board finds that the evidence of record supports the establishment of service connection for lumbar spine DDD and left ankle DJD on a direct basis.  Here, the Board acknowledges that the Veteran was afforded VA compensation examinations in February 2013 and July 2015, where the VA examiners each provided a negative medical opinion with respect to the claimed lumbar spine and left ankle disabilities.  In this case, however, the Board finds these opinions to be inadequate.  Specifically, both VA examiners relied solely on an apparent lack of service treatment records documenting residuals of the Veteran's in-service injuries or showing his current diagnoses; which, based on his STRs, is not the case.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion).  Therefore, the Board is assigning less probative weight to the February 2013 and July 2015 VA medical opinions than to Dr. S.A.'s July 2017 opinions.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim.  However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, at worst, evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim).  As Dr. S.A. indicated in her July 2017 medical opinion that the Veteran's left ankle symptoms are consistent with his current diagnoses of neuropathy and DJD, the grant of service connection for left ankle DJD herein encompasses a full grant of the Veteran's left ankle manifestations.  Accordingly, the Board finds service connection is warranted for degenerative disc disease of the lumbar spine and degenerative joint disease of the left ankle.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for lumbar spine DDD is granted.

Entitlement to service connection for left ankle DJD is granted.


REMAND

Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide a claim.  38 C.F.R. § 3.159(c)(4)(i).  A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability or recurrent symptoms of a disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury, or disease in service.  McLendon v. Nicholson, 20 Vet App. 79 (2006).

In this case, the Veteran has not been afforded a VA examination.  As the record suggests a possible relationship between his bilateral foot disorder, including plantar fasciitis, and active military service, including as secondary to his service-connected left ankle and lumbar spine disabilities, the "low threshold" standard for determining when a VA examination is necessary has been met.  Accordingly, the Board finds that remand is required for such examination.  McLendon, 20 Vet. App. at 81.

Additionally, while on remand, the AOJ should also attempt to obtain the Veteran's updated medical records.

Accordingly, the case is REMANDED for the following action:

1.  Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims.  Also ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not yet been obtained.  All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records.  38 C.F.R. § 3.159(c) and (e).

2.  After receiving all additional treatment records, schedule the Veteran for a VA compensation examination assessing the nature and etiology of any bilateral foot disorder, including plantar fasciitis.  His claim file, including a copy of this remand, must be made available to the examiner in conjunction with the examination.  All pertinent symptoms and findings must be reported in detail.  Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must address the following:

(a)  Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's right and/or left foot disorder, including plantar fasciitis, had its onset during service or is otherwise etiologically related to service?

When responding, the examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion.  If the Veteran's reports are discounted, the examiner must discuss the reasons for doing that.

The mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable nexus opinion.  However, it is permissible to consider this as one factor in the determination regarding the origins of these claimed disabilities, provided there is also sufficient explanation as to why it is reasonable to have expectation of treatment in the circumstances presented.

(b)  Is it at least as likely as not that the Veteran's right and/or left foot disorder, including plantar fasciitis, was caused, or is being aggravated by his service-connected lumbar spine DDD, left ankle DJD, and/or left lower extremity neuropathy?

The examiner should note that the term "aggravated by" refers to "any increase in severity" of a nonservice-connected disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disability.

If the examiner finds that the Veteran's service-connected lumbar spine DDD, left ankle DJD, or left lower extremity neuropathy, either combined or independently, have aggravated his right and/or left foot disorder, including plantar fasciitis, then the examiner should specify, so far as possible, the degree of disability resulting from such aggravation.

All answers to the questions asked must be supported by a clear rationale.  That is, the examiner is asked to explain in detail the underlying reasoning for his or her opinion, preferably citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate.  If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible.  In other words, merely saying he or she cannot respond will not suffice.

3.  Ensure that the requested examination report is responsive to the applicable rating criteria.  If it is not, obtain all necessary additional information.  Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. §4.2.

4.  After completing the above and any other development deemed necessary by the AOJ, readjudicate the claim remaining on appeal.  If the issue remains denied, send the Veteran an SSOC, and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims.


The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs