Citation Nr: 1807862 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 16-32 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right hip disability. 3. Entitlement to service connection for a left hip disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to an increase in a 10 percent rating for bilateral plantar fasciitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from December 1994 to August 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that denied service connection for a low back disability (listed as lumbosacral strain, claimed as a back disability and inflammation of the lower back); a right hip disability (listed as limitation of extension of the right hip, claimed as a right hip disability); a left hip disability (listed as limitation of extension of the left hip, claimed as a left hip disability); a right knee disability (listed as right knee strain, claimed as a right knee disability); and for a left knee disability (listed as left knee strain, claimed as a left knee disability). By this decision, the RO also denied an increase in a 10 percent rating for bilateral plantar fasciitis. In January 2017, the Veteran filed as claim as to whether new and material evidence has been received to reopen a claim for entitlement to service connection bilateral pes planus (listed as bilateral flat feet). That issue is not before the Board at this time and is referred to the RO for appropriate action. The Board notes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in this case, the evidence reveals that the Veteran was employed, apparently until at least August 2017, that he has not alleged that his service-connected bilateral plantar fasciitis precludes substantially gainful employment, and that the issue of entitlement to a TDIU is not before the Board at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is service-connected for bilateral plantar fasciitis. The Veteran contends that he has a low back disability; a right hip disability; a left hip disability; a right knee disability; and a left knee disability that are all related to service, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina. He also asserts that his claimed low back, right hip, left hip, right knee, and left knee disabilities are all secondary to his service-connected bilateral plantar fasciitis. He reports that his occupational specialty was changed during service as a result of his claimed conditions. The Veteran essentially contends that he suffered low back, right hip, left hip, right knee, and left knee problems during service and since that time. The Veteran is competent to report low back, right hip, left hip, right knee, and left knee problems during service and since service. See Davidson, 581 F.3d at 1313. The Veteran served on active duty in the Marine Corps from December 1994 to August 1997. His available service personnel records indicate that he served at Camp Lejeune, North Carolina, for at least 30 days. The Veteran's service treatment records are incomplete and essentially only include a physical evaluation board report referring to bilateral foot problems. A post-service January 2013 VA back conditions examination report includes a notation that the Veteran's claims file was reviewed. The Veteran reported that his back had bothered him since he got out of the military, but that it had worsened over the previous four or so years. He stated that his pain was intermittent and that it was in the lower back, and diffusely across his lower back. The Veteran described the pain as a burning pain with lifting objects over thirty pounds, with less severe chronic pain. It was noted that the Veteran denied symptoms consistent with radiculopathy. The Veteran indicated that his only treatment had been with Acetaminophen and nonsteroidal anti-inflammatory drugs. The Veteran reported that he was currently employed with Boeing for two years, and that prior to that time, he had worked in manufacturing at an automobile factory. The diagnosis was lumbosacral strain. A January 2013 VA hip and thigh conditions examination report includes a notation that the Veteran's claims file was reviewed. The Veteran reported that he had bilateral hip pain, primarily affecting the posterolateral aspects of the hips as opposed to the anterior areas. He stated that his bilateral hip pain felt connected to his lower back pain, and that it had been present for approximately four to five years. The Veteran maintained that his pain was intermittent and that it was primarily related to prolonged weight bearing activities and climbing activities. He indicated that his only treatment was with Acetaminophen and nonsteroidal anti-inflammatory drugs. The diagnosis was bilateral hip strain. A January 2013 VA knee and lower leg conditions examination report includes a notation that the Veteran's claims file was reviewed. The Veteran reported that he had suffered bilateral knee pain for five years. He stated that his bilateral knee pain was constant and that it was primarily in the lateral and medial compartments of his knees, with the pain in the left knee greater than in the right knee. It was noted that the Veteran denied a history of any trauma or surgery to either knee. The Veteran indicated that his only treatment was with Acetaminophen and nonsteroidal anti-inflammatory drugs. The diagnosis was bilateral knee strain. The January 2013 VA back conditions examination report; hip and thigh conditions examination report; and knee and lower leg conditions examination report, respectively, were all conducted by the same examiner. The examiner indicated that the claimed conditions were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected bilateral plantar fasciitis. The examiner specifically commented that the Veteran's claimed back, bilateral hip, and bilateral knee disabilities were less likely than not (less than 50/50) proximately due to or the result of his service-connected plantar fasciitis. The examiner stated that the Veteran's gait was normal and that there was no evidence of a significant chronic limp on the physical examination, or documented in previous VA examinations, or in the records in the claims file. The examiner reported that, more significantly, there was no evidence of record supporting that the Veteran had ever complained of, or been treated for, any of the claimed conditions of the back, bilateral hips, and bilateral knees. The examiner indicated that in the absence of a documented significant chronic gait impairment, and given the use of orthotic inserts to correct the Veteran's pes planus, and without evidence of record supporting the above claimed conditions, the Veteran's claimed secondary conditions were less likely than not attributable to his mild to moderate plantar fasciitis. The examiner maintained that the Veteran's claimed back, bilateral hip, and bilateral knee disabilities were more likely attributable to his physically strenuous occupations and plus/minus body habitus. The Board observes that the examiner did not address whether the Veteran's claimed low back, bilateral hip, and bilateral knee disabilities were related to his period of service, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina. Additionally, the examiner did not address whether the Veteran's service-connected bilateral plantar fasciitis aggravated his claimed low back disability; right hip disability; left hip disability; right knee disability; and left knee disability. In El-Amin v. Shinseki, 26 Vet. App. 136 (2013), a decision issued by the United States Court of Appeals for Veterans Claims (Court), the Court vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability. In light of the deficiencies with the January 2013 VA back conditions examination report; hip and thigh conditions examination report; and knee and lower leg conditions examination report, respectively, the Board finds that the Veteran has not been afforded a VA examination, with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims folder, as to his claims for service connection for a low back disability; a right hip disability; a left hip disability; a right knee disability; and for a left knee disability. Such an examination must be accomplished on remand. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As to the Veteran's claim for an increased rating for his bilateral plantar fasciitis, the Board observes that he was last afforded a VA foot conditions examination in April 2017. The diagnoses were bilateral plantar fasciitis and bilateral pes planus. The examiner indicated that the Veteran's diagnosed bilateral plantar fasciitis and bilateral pes planus impacted his ability to perform any type of occupational tasks. The examiner maintained that such diagnosed conditions caused the Veteran pain with prolonged walking and standing. The U.S Court of Appeals for Veteran's Claims (Court) has issued decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopaedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." In light of these decisions, and as the findings pursuant to the April 2017 VA foot conditions examination report, noted above, are inadequate, the Board finds that new a VA examinations should be provided addressing the Veteran's service-connected bilateral plantar fasciitis. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for low back problems; right and left hip problems; and right and left knee problems since April 2017. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptomatology regarding his claimed low back disability; right hip disability; left hip disability; right knee disability; and left knee disability, as well as the nature, extent, and severity of his service-connected bilateral plantar fasciitis, and the impact of that condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the onset and etiology of his claimed low back disability; right hip disability; left hip disability; right knee disability; and left knee disability. The entire claims file, to include all electronic files, must be reviewed by the examiner. The examiner must diagnose all current low back disabilities; right hip disabilities; left hip disabilities; right knee disabilities; and left knee disabilities. Based on a review of the claims file, examination of the Veteran, and generally accepted medical principles, the examiner must provide a medical opinion, with adequate rationale, as to whether it is as at least as likely as not that any currently diagnosed low back disabilities; right hip disabilities; left hip disabilities; right knee disabilities; and left knee disabilities, are related to and/or had their onset during his period of service, to include his presumed in-service exposure to environmental toxins at Camp Lejeune, North Carolina. The examiner must specifically acknowledge and discuss any reports by the Veteran of low back, right and left hip, and right and left knee problems during service and since service. The examiner must further opine as to whether the Veteran's service-connected bilateral plantar fasciitis, caused or aggravated any currently diagnosed low back disabilities; right hip disabilities; left hip disabilities; right knee disabilities; and left knee disabilities. The term "aggravation" means a permanent increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If aggravation of any diagnosed low back disabilities; right hip disabilities; left hip disabilities; right knee disabilities; and left knee disabilities, by the Veteran's service-connected bilateral plantar fasciitis is found, the examiner must attempt to establish a baseline level of severity of the diagnosed low back disabilities; right hip disabilities; left hip disabilities; right knee disabilities; and left knee disabilities, prior to aggravation by the service-connected bilateral plantar fasciitis. The examination report must include a complete rationale for all opinions expressed. 4. Schedule the Veteran for a VA examination to determine the extent and severity of his bilateral plantar fasciitis. The entire claims file, to include all electronic files, must be reviewed by the examiner. All indicated tests must be conducted, including x-ray, and all symptoms associated with the Veteran's service-connected bilateral plantar fasciitis must be described in detail. Specifically, the examiner must conduct a thorough orthopedic examination of the Veteran's service-connected right foot and left foot disabilities and provide diagnoses of any pathology found. The examiner must state whether the examination is taking place during a period of flare-ups. If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including the frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional functional loss during a flare-up or after repeated use over time. If the examiner cannot do so without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examination report must include a complete rationale for all opinions expressed. 5. Then readjudicate the appeal. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).