Citation Nr: 19131069 Decision Date: 04/23/19 Archive Date: 04/19/19 DOCKET NO. 05-18 801 DATE: April 23, 2019 REMANDED Entitlement to service connection for a right foot disability, to include hammer toe, hallux valgus, osteopenia, heel spur, metatarsus adductus, and arthritis, is remanded. Entitlement to service connection for a left foot disability, to include hammer toe, hallux valgus, osteopenia, heel spur, metatarsus adductus, and arthritis, is remanded. Entitlement to service connection for an upper back disability as secondary to a bilateral foot disability is remanded. Entitlement to service connection for a right ankle disability as secondary to a bilateral foot disability is remanded. Entitlement to service connection for a left ankle disability as secondary to a bilateral foot disability is remanded. Entitlement to service connection for a left knee disability as secondary to a bilateral foot disability is remanded. Entitlement to service connection for cervical radiculopathy, to include as secondary to a bilateral foot disability, is remanded. Entitlement to service connection for right hand carpal tunnel syndrome, to include as secondary to a bilateral foot disability, is remanded. Entitlement to service connection for left hand carpal tunnel syndrome, to include as secondary to a bilateral foot disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 7, 1958, to March 1, 1959, and from January 1962 to April 1964. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2004, August 2009, and July 2018 rating decisions. Addressing the appeal of the August 2004 rating decision, in a December 2007 decision, the Board denied entitlement to service connection for a bilateral foot disorder, to include heel spurs and arthritis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a November 2008 order, the Court granted the parties’ Joint Motion for Remand (JMR), vacated the Board’s decision as to the appealed issue, and remanded the matter for further development and readjudication consistent with the JMR. Addressing the appeal of the August 2004 and August 2009 rating decisions, which had case docket number 05-18 801, in a September 2014 decision, the Board denied entitlement to service connection for bilateral foot disability, to include heel spurs and arthritis; left knee disability secondary to bilateral foot disability; upper back condition secondary to bilateral foot disability; bilateral ankle condition secondary to bilateral foot disability; and whether new and material evidence had been presented to reopen claims for service connection a low back condition and for right foot neuroma. The Veteran appealed to the Court, and in a May 2015 order, the Court granted the parties’ JMR, vacated the Board’s decision as to the appealed issues, and remanded the matter for further development and readjudication consistent with the JMR. The Veteran did not dispute the Board’s denial of service connection for upper back, bilateral ankle, and left knee conditions on a direct basis and its denials of reopening of claims for service connection for a low back condition and for right foot neuroma. As to docket number 05-18 801, most recently, in October 2018, the Board remanded the issues of entitlement to service connection for bilateral foot disability, upper back disability, left knee disability, and bilateral ankle disabilities for further development. The appeal of the July 2018 rating decision was assigned case docket number 18-53 864, and most recently, in January 2019, the Board remanded the issues of entitlement to service connection for cervical radiculopathy and for bilateral carpel tunnel syndrome, both as secondary to a bilateral foot disability, as being inextricably intertwined with the issues subject to the Board’s October 2018 remand. After both cases were returned to the Board for appellate consideration, they were merged under the 05-18 801 docket number. The Board finds there has been substantial compliance with its October 2018 and January 2019 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also Dyment v. West, 13 Vet. App. 141, 146–47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand). 1. Entitlement to service connection for a right foot disability, to include hammer toe, hallux valgus, osteopenia, heel spur, metatarsus adductus, and arthritis, is remanded. 2. Entitlement to service connection for a left foot disability, to include hammer toe, hallux valgus, osteopenia, heel spur, metatarsus adductus, and arthritis, is remanded. The Veteran has continuously sought entitlement to service connection for a bilateral foot disability since he filed his first claim in June 1997. VA examinations in November 1997 recorded that he had current diagnoses of right foot neuroma and bilateral foot fungus. As noted above, in its September 2014 decision, the Board found that new and material evidence had not been presented to support reopening the claim, and the Veteran did not appeal that decision to the Court. In an April 2005 statement of the case, the Veteran’s claim for entitlement to service connection for a right foot condition was recharacterized as to include heel spurs and arthritis. Based upon diagnoses recorded in the report of a March 2018 VA examination, in its October 2018 remand, the Board recharacterized the claim to include hammer toe, hallux valgus, osteopenia, heel spur, metatarsus adductus, and arthritis. The Veteran’s service treatment records show that in September 1958 he complained of painful heels of about one week duration. It was noted that there was heat and edema in the posterior triangle with pain and tenderness on palpation. On a radiographic report, which stated that there were no significant abnormalities noted, the Veteran reported having fallen four years before. It was recorded that October 1958 X-rays revealed sclerotic areas in both heels, and stress fracture both os calcis (calcaneus) was diagnosed. The Veteran was placed on temporary profile for four weeks. On his February 1959 report of medical history for his separation examination, the Veteran indicated “yes” to lameness, to foot trouble, and to swollen or painful joints. On a March 1962 report of medical history for a periodic medical examination, the Veteran indicated “yes” to foot trouble. The Veteran’s first VA examinations occurred in November 1997, for skin diseases and for foot conditions, during which he reported having had continuous pain in his feet, particularly the right, since he started service in September 1958. He reported first seeing professionals for his feet when he was 60 years old, and it was noted that he had been seen by private physicians, orthopedic surgeons, podiatrists, and dermatologist, all having very little effect on his symptoms of pain in the feet. He reported having pain, weakness, and problem with the right foot with pain going from the foot to the back and up to the neck, throbbing all the time. He reported that he did not have any significant pain off weight bearing. He reported that he could not wear shoes, wearing only sneakers. The medical records in this case are voluminous, showing consistent complaints by the Veteran of bilateral foot pain with varying locations depending upon when examined; shifting of weight and gait to accommodate the pain; effects on his ankles, knees, spine, and neck; inability to wear prescribed footwear; pain relieved only by not being on his feet; and the failure of many tried treatments to have any impact on his pain. In addition to bilateral foot fungus, diagnoses have included capsulitis with periostitis, Morton’s neuroma of the right foot, severe metatarsalgia, plantar fasciitis, heel spurs, arthritis, and bilateral hammertoes at the third, fourth, and little toes. The records show that the Veteran has constantly used canes to ambulate and at times used crutches. During a July 2014 VA examination, the examiner opined that the Veteran’s bilateral foot problems were “related to biomechanical issues and not the stress fracture diagnosed in the service.” In a February 2017 addendum, a different podiatrist addressed the term “biomechanical issues” thus: “This refers to the way the foot works, how one joint functions and how it effects other joints/structures. Referring to the biomechanical issues and the heel spurs, there are only theories as to why heel spurs form.” In the report of a March 2018 VA examination, the examiner noted that imagining studies revealed osteopenia with no mention of arthritis, bilateral heel spurs, hammer toes, and metatarsus adductus. Metatarsus adductus is “a congenital deformity of the foot in which the fore part of the foot deviates toward the midline.” Metatarsus adductus, Dorland’s Illustrated Medical Dictionary (32d ed. 2012). In January 2019, another VA medical opinion was obtained in which it was opined that it was less likely that the Veteran’s bilateral foot conditions were related to service because they were due to “poor foot biomechanics, overuse, wrong foot wear, and obesity.” Taking a holistic view of this medically challenging case since no treatments seem to have provided comprehensive relief of bilateral foot pain for the Veteran, the Board finds that the analytical viewpoint needs to be shifted. Historically, the question has been whether any of the Veteran’s numerous post-service bilateral foot disabilities was at least as likely as not a residual of his in-service diagnosed bilateral stress fractures. However, due to the repetitive opinions that the Veteran’s bilateral foot disabilities are related to biomechanical issues and due to the presence of metatarsus adductus on imaging studies, the Board finds that the question should be whether a common cause, such as a congenital deformity of the foot or the pre-service fall that the Veteran reported in 1958, was the underlying cause of his in-service bilateral stress fractures and numerous post-service intractable bilateral foot pain despite aggressive treatment and foot deformities, including hammer toes, hallux valgus, and heel spurs as well as the development of a right foot neuroma. As no foot issues were noted at the time the Veteran entered active duty service, the presumption of soundness attached. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); VAOPGCPREC 3-2003; Crowe v. Brown, 7 Vet. App. 238 (1994); Horn v. Shinseki, 25 Vet. App. 231, 236 (2012). Hence, a remand is required to obtain an addendum medical opinion addressing whether the Veteran’s post-service bilateral foot disabilities were related to a congenital deformity of the foot or a pre-service injury, and if so, whether a preexisting condition was aggravated beyond its natural progression. On remand, an addendum VA medical opinion must be obtained to determine the nature and etiology of the Veteran’s bilateral foot disability, taking into account a current diagnosis of metatarsus adductus, the record evidence, and accepted medical principles. 38 C.F.R. § 3.159(c)(4). 3. Entitlement to service connection for an upper back disability as secondary to a bilateral foot disability is remanded. 4. Entitlement to service connection for a right ankle disability as secondary to a bilateral foot disability is remanded. 5. Entitlement to service connection for a left ankle disability as secondary to a bilateral foot disability is remanded. 6. Entitlement to service connection for a left knee disability as secondary to a bilateral foot disability is remanded. As noted above, the Veteran appealed the Board’s September 2014 decision, and in the parties’ May 2015 JMR it was stated that the Veteran did not dispute the Board’s denial of service connection for upper back, bilateral ankle, and left knee conditions on a direct basis. That being the case, further adjudication of these issues is limited to entitlement to service connection on a secondary basis to a bilateral foot disability. Because these issues are dependent upon the Veteran’s bilateral foot disability becoming service-connected, they are inextricably intertwined with the above remanded issues of entitlement to service connection for a right foot and a left foot disability. Therefore, to avoid piecemeal review, the Board will remand these issues for Agency of Original Jurisdiction (AOJ) consideration and issuance of a supplemental statement of the case if any claim remains denied. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 7. Entitlement to service connection for cervical radiculopathy, to include as secondary to a bilateral foot disability, is remanded. 8. Entitlement to service connection for right hand carpal tunnel syndrome, to include as secondary to a bilateral foot disability, is remanded. 9. Entitlement to service connection for left hand carpal tunnel syndrome, to include as secondary to a bilateral foot disability, is remanded. In June 2018, the Veteran sought entitlement to service connection for cervical radiculopathy and bilateral carpal tunnel syndrome, which was denied in the July 2018 rating decision that is on appeal due to lack of an in-service event, disease, or injury. Through his attorney, in his September 2018 notice of disagreement, the Veteran contended that his cervical radiculopathy and bilateral carpal tunnel syndrome were secondary to a bilateral foot disability. Private treatment records from June 2017 show that the Veteran has a current diagnosis of mild bilateral carpal tunnel syndrome, right greater than left. It was also found that there was superimposed cervical radiculopathy. A June 2017 MRI report showed a history of cervical/neck pain with upper and lower extremity pins and needles and numbness. Imaging revealed cervical disc degeneration, foraminal stenosis, and abnormal straightening of cervical curve. In a June 2018 statement, the Veteran reported that he suffered numbness from the bottom of his feet to the exterior extremities, including his wrists and hands, and that he had no feeling in his fingertips and toes. He reported that since his military service, his feet and wrists became numb and radiated pain through his entire body. He stated that he never suffered from any of these symptoms prior to service, contending that the trauma to his feet must have triggered the body system breakdown, which gave him associated pain to his legs, lower back along with numbness and tingling sensations. The Veteran’s claims file contains approximately forty pages of service treatment records; however, they are obviously fire damaged. Records show that in September 1958 the Veteran complained of blurring vision developing the day before with painful feet and some dizziness. Tension headache was diagnosed. Records show that in October 1958 the Veteran was seen by the neurology clinic for persistent headaches that began two to three years before after he struck his head in a fall. He reported that since, entering service seven weeks before, the headaches had worsened and that on several occasions he felt he was in a haze. A February 1959 consultation sheet in relation to his separation physical shows that five years before the Veteran had a skull injury. It was recorded that he had blurred eyesight, fainting, and recurrent headaches since the trauma. He was diagnosed with chronic, mild emotional instability reaction, manifested by chronic tension headaches. He was granted clearance for separation from service. A March 1962 report of periodic medical examination shows a report of occasional headaches for past four to five years with occasional dizzy spells. In light of the damage to the Veteran’s service treatment records, VA has a heightened duty to assist him in the development of his case. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). In its current state of development, the record does not fully inform the Board as to the nature and etiology of the Veteran’s cervical radiculopathy and bilateral carpal tunnel syndrome, see Douglas v. Shinseki, 23 Vet. App. 19 (2009), and the Board is prohibited from exercising its own independent judgment to resolve medical questions, Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). To date, the Veteran has not been afforded a VA examination in relationship to these two claims. The Board notes that the Veteran at times has not been able to attend VA examinations, but in December 2018, the Veteran’s attorney expressly advocated for the scheduling of examinations. Here, the evidence establishes that the Veteran has current disabilities of cervical radiculopathy and bilateral carpal tunnel syndrome with degenerative changes to the cervical spine. The evidence shows that prior to service the Veteran had a head injury, which also may have affected his neck and which produced recurrent symptoms during service including dizziness, blurred vision, sense of being in a haze, and painful feet. Furthermore, these issues are inextricably intertwined with the above remanded issues of entitlement to service connection for a right and left foot disability. Accordingly, the Board finds that a VA examination is warranted. See 38 C.F.R. § 3.159(c)(4), (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). On remand, VA examinations are required to determine the nature and etiology of the Veteran’s cervical radiculopathy and bilateral carpal tunnel syndrome, taking into account his pre-service head injury, in-service complaints related to that head injury, his claimed bilateral foot disability, the record evidence, and accepted medical principles. 38 C.F.R. § 3.159(c)(4).   The matters are REMANDED for the following actions: 1. The AOJ should arrange for a VA medical opinion from an appropriately qualified examiner to determine the nature and etiology of the Veteran’s bilateral foot disability. The VA clinician asked to offer the opinion should thoroughly review the Veteran’s claims file and a complete copy of this Remand in conjunction with offering any opinion and note this has been accomplished in the VA examination report. The Board leaves it to the clinician’s discretion whether the Veteran should be re-examined. The Board notes, however, that the Veteran is elderly and in poor health and may not be able to attend an in-person examination. This should not be used as a basis as an inability to render the requested medical opinions herein. The examiner is advised that the Veteran is competent to attest to observable symptomatology, which includes his reports to treating medical providers as recorded in their medical records. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation, including an explanation of why it was error for a treating clinician to rely upon such reports by the Veteran. The medical evidence of record has raised the issue of the presence of metatarsus adductus, which is understood to be a congenital foot deformity, as well as a report that the Veteran fell injuring his feet four years prior to service. (a) Please indicate whether it is clear and unmistakable (obvious and manifest) that a bilateral foot condition, such as metatarsus adductus or residuals of a pre-service foot injury, existed prior to service. (b) If the examiner finds that the Veteran clearly and unmistakably had a bilateral foot condition prior to service, then the examiner is requested to offer an opinion as to whether it is clear and unmistakable (obvious and manifest) that the pre-existing condition was not aggravated by service. In other words, is it clear and unmistakable that any worsening of the condition was duty to the natural progression of the condition, to include the development of deformities such as hammer toes, hallux valgus, heel spurs, and arthritis? Aggravation is defined as a permanent worsening beyond the natural progression of the condition. (c) If the examiner finds that a bilateral foot condition did not clearly and unmistakably exist prior to service, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a biomechanical condition of the right and left feet is proximately due to or aggravated by active duty service. The examiner should not resort to mere speculation, but rather should consider that the phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must reconcile any opinion with the evidence of record, citing to the record as appropriate and particularly addressing: chronic nature of the Veteran’s bilateral foot pain since September 1958 that has been intractable to all forms of treatment; the development of structural deformities of stress fractures in-service and deformities to toes and development of heel spurs post-service; the development of a neuroma; the Veteran’s persistent reports that he felt the effects of his bilateral foot issues upward throughout his musculoskeletal system; and VA examiners’ opinions that the underlying nature of the Veteran’s bilateral foot disabilities has been a biomechanical issue. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of the Veteran’s cervical radiculopathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including this Remand, and to indicate review of the file in the examination report. Particular attention should be given to the Veteran’s service treatment records showing: a pre-service head injury with manifestation during service of recurrent headaches, a sense of being in a haze, blurred vision with painful feet and dizziness, as well as the Veteran’s statement that since service his feet and wrists became numb and radiated pain through his entire body. Additionally, the examiner must consider that the Veteran continues to adjudicate his claim for entitlement to service connection for a bilateral foot disability. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a) Please indicate whether the Veteran’s cervical radiculopathy is at least as likely as not (50 percent or greater probability) due to or aggravated by an in-service injury, event, or disease. (b) Please indicate whether the Veteran’s cervical radiculopathy is at least as likely as not (50 percent or greater probability) due to or aggravated by the Veteran’s claimed bilateral foot disability. The Board notes that the Court recently held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, the VA examiner must provide separate findings and rationales relating to causation and aggravation. (c) Considering the Veteran’s reported pre-service head injury, please indicate whether it is clear and unmistakable (obvious and manifest) that the Veteran had pre-existing cervical radiculopathy at the time of induction into active duty service. (d) If the examiner finds that the Veteran clearly and unmistakably had pre-existing cervical radiculopathy at the time of induction into active duty service, then please indicate whether it is clear and unmistakable (obvious and manifest) that the cervical radiculopathy was not aggravated by service. In other words, is it clear and unmistakable that any worsening of the condition was due to the natural progression of the condition? Aggravation is defined as a permanent worsening beyond the natural progression of the condition. The examiner should not resort to mere speculation, but rather should consider that the phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must reconcile any opinion with the evidence of record, citing to the record as appropriate. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for an appropriate examination to determine the nature and etiology of the Veteran’s bilateral carpal tunnel syndrome. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including this Remand in its entirety, and to indicate review of the file in the examination report. Particular attention should be given to the Veteran’s service treatment records showing a pre-service head injury with manifestation during service of recurrent headaches, a sense of being in a haze, blurred vision with painful feet and dizziness, as well as the Veteran’s statement that since service his feet and wrists became numb and radiated pain through his entire body. Additionally, the examiner must consider that the Veteran continues to adjudicate his claim for entitlement to service connection for a bilateral foot disability. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a) Please indicate whether the Veteran’s bilateral carpal tunnel syndrome is at least as likely as not (50 percent or greater probability) due to or aggravated by an in-service injury, event, or disease. (b) Please indicate whether the Veteran’s bilateral carpal tunnel syndrome is at least as likely as not (50 percent or greater probability) due to or aggravated by the Veteran’s claimed bilateral foot disability. The Board notes that the Court recently held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, the VA examiner must provide separate findings and rationales relating to causation and aggravation. (c) Considering the Veteran’s reported pre-service head injury, please indicate whether it is clear and unmistakable (obvious and manifest) that the Veteran had pre-existing bilateral carpal tunnel syndrome at the time of induction into active duty service. (d) If the examiner finds that the Veteran clearly and unmistakably had pre-existing bilateral carpal tunnel syndrome at the time of induction into active duty service, then please indicate whether it is clear and unmistakable (obvious and manifest) that the bilateral carpal tunnel syndrome was not aggravated by service. In other words, is it clear and unmistakable that any worsening of the condition was due to the natural progression of the condition? Aggravation is defined as a permanent worsening beyond the natural progression of the condition. The examiner should not resort to mere speculation, but rather should consider that the phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must reconcile any opinion with the evidence of record, citing to the record as appropriate. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney