Citation Nr: 20002149 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 13-06 439A DATE: January 9, 2020 ORDER Entitlement to service connection for intervertebral disc syndrome (IVDS) and lumbar disc disease is granted. REMANDED Entitlement to service connection for avascular necrosis of the left hip, to include as secondary to tramadol use, to include as due to a right ankle disability, is remanded. Entitlement to service connection for avascular necrosis of the right hip, to include as secondary to tramadol use, to include as due to a right ankle disability, is remanded. Entitlement to service connection for arthritis of the right hip is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is remanded. Entitlement to service connection for calcaneal spurring of the right foot is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the Veteran’s intervertebral disc syndrome (IVDS) and lumbar disc disease is aggravated by his service-connected ankle disability. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, the criteria for service connection for IVDS and lumbar disc disease, are met. 38 U.S.C. §§ 1110, 5107, 7104 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1979 to June 1988. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The case was recently before the Board in January 2018. It is now before the Board for further appellate action. The Veteran withdrew his request for a hearing in May 2019. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection or service-connected aggravation for a present disability, the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. The Board notes that the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for intervertebral disc syndrome (IVDS) and degenerative disc disease of the lumbar spine The Veteran claims that his IVDS and lumbar disc disease are aggravated by his service-connected ankle disability. The August 2018 Back Conditions Disability Benefits Questionnaire (DBQ) shows that the Veteran has a current diagnosis of intervertebral disc syndrome (IVDS) and degenerative disc disease of the lumbar spine. The September 2018 examiner opined that the Veteran’s back disability was at least as likely as not aggravated beyond its natural progression by a service-connected disability. The examiner sited a research study that noted that foot pain and foot deformity cause you to change the way you walk. The study noted that it changes the way bones of those joints move with each other. Cartilage in the joints can wear down, ligaments and tendons can be stressed beyond their normal range causing arthritis. The examiner noted that pain in the back could be linked to the Veteran’s feet. Earlier in this opinion, the examiner noted a review of spine, hips and ankles x-rays. The examiner provided an opinion that the Veteran’s back disability was related to the Veteran’s service-connected disability. Resolving all doubt in the Veteran’s favor, it appears that the examiner found that his back disability was aggravated by his ankle disability and not a foot disability as an ankle disability is the only service-connected disability. In addition, the claims file includes a May 2003 opinion by a nurse who noted that the Veteran’s right ankle deformity added to his lower back problems. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current back disability is aggravated beyond its natural progression by his service-connected ankle disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for IVDS and DDD of the lumbar spine is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for avascular necrosis of the left hip, to include as secondary to tramadol use, to include as due to a right ankle disability, is remanded. 2. Entitlement to service connection for avascular necrosis of the right hip, to include as secondary to tramadol use, to include as due to a right ankle disability, is remanded. Although the November 2017 examiner stated that the Veteran’s avascular necrosis was not at least as likely as not the result of residuals of fracture of the right ankle. The examiner provided no rationale for this opinion. The examiner instead stated that there is no objective evidence to support the Veteran’s claim and noted the definition for necrosis and the causes of it. The examiner then copied and pasted VA treatment records showing a history of alcohol and substance abuse dependence. The examiner also did not provide an opinion as to whether the necrosis was aggravated by his right ankle or aggravated by his use of tramadol. Per this decision, the Veteran’s back disability is also now service-connected. A new opinion should be obtained that addressed all of these points. 3. Entitlement to service connection for a right hip disability is remanded. Per this decision, the Veteran’s back disability is now service-connected. Therefore, a new opinion is needed as to whether the Veteran’s right hip arthritis is caused or aggravated by his service-connected back disability. 4. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is remanded. It appears that the September 2018 examiner who provided an opinion regarding the Veteran’s psychiatric disability thought that the Veteran’s polysubstance abuse was already service-connected. The examiner provided an opinion that it was at least as likely as not that the Veteran’s depressive disorder was related to a service-connected disability; however, the examiner then explains that the Veteran’s depressive disorder was secondary to his polysubstance abuse disorder. Unfortunately, the Veteran’s polysubstance abuse disorder is not service-connected at this time. The examiner further noted that his depression has become worse due to chronic pain. The examiner should specify whether his chronic pain was due to his service-connected disabilities. No compensation shall be paid for disability that results from a person’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1110, 1131; 38 C.F.R. § 3.301. However, service connection may be warranted for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claimant may only be compensated for a substance abuse disability where there is “clear medical evidence” establishing that the alcohol or drug abuse disability is caused by a primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing. Id. 5. Entitlement to service connection for calcaneal spurring of the right foot Since the time of the Veteran’s last examination showing calcaneal spurring of the right foot, service treatment records were associated with the claims file. An April 1981 service treatment record notes that the Veteran had cellulitis secondary to puncture wound on his right foot. The Veteran had stepped on a nail. A new opinion should be obtained as to whether the Veteran’s calcaneal spurring could have been caused by this puncture wound or cellulitis and for a review of the newly obtained service treatment records. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the November 2017 opinion. The Veteran has been diagnosed necrosis. See March 2016 x-ray. The examiner must opine whether it is at least as likely as not that the Veteran’s necrosis of both hips is related to an in-service injury, event, or disease. The examiner must opine whether it is at least as likely as not that Veteran’s necrosis of both hips is (1) proximately due to service-connected disability, to include his ankle disability and back disability, or (2) aggravated beyond its natural progression by service-connected disability, to include his ankle disability and back disability. The examiner must opine whether it is at least as likely as not that Veteran’s necrosis of both hips is (1) proximately due to use of Tramadol, or (2) aggravated beyond its natural progression by use of Tramadol. 2. Obtain an addendum opinion from the examiner who provided the September 2018 psychiatric opinion. The Veteran has been diagnosed with major depressive disorder, alcohol use disorder, in sustained remission, cannabis use disorder, in full sustained remission, opiod use disorder in sustained remission, stimulant use disorder in full sustained remission. The examiner must opine whether it is at least as likely as not that any currently psychiatric disorders are related to an in-service injury, event, or disease. The examiner must opine whether it is at least as likely as not that any currently diagnosed psychiatric disabilities are (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. The September 2018 examiner noted that his depression was aggravated by his chronic pain but did not specify if his chronic pain was due to a service-connected disability. Please specify if the Veteran’s psychiatric disabilities are at least as likely as not caused or aggravated by his chronic pain that is from a service-connected disability. If the Veteran’s current psychiatric disability is not found to be aggravated by chronic pain from a service-connected disability, the examiner should opine whether there is clear medical evidence establishing that the alcohol or drug abuse disability in service was caused by a primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing. 3. Obtain an addendum opinion from the January 2015 examiner or if he is unavailable, another appropriate medical provider can provide the opinion. The Veteran has been diagnosed with right heel spurs. The examiner must opine whether it is at least as likely as not that his currently diagnosed heel spurs are related to an in-service injury, event, or disease, to include the April 1981 service treatment record noting that the Veteran had cellulitis secondary to puncture wound on his right foot. The Veteran had stepped on a nail. The examiner must opine whether it is at least as likely as not that any currently diagnosed heel spurs are (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. 4. Obtain an addendum opinion regarding the Veteran’s right hip arthritis. The examiner must opine whether it is at least as likely as not that his currently diagnosed right hip arthritis is related to an in-service injury, event, or disease. A review of the newly obtained service treatment records should be conducted. The examiner must opine whether it is at least as likely as not that any currently diagnosed right hip arthritis are (1) proximately due to service-connected disability, to include the ankle disability and back disability, or (2) aggravated beyond its natural progression by service-connected disability, to include the ankle disability and back disability. 5. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.