Citation Nr: 20004572 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 14-22 147 DATE: January 21, 2020 REMANDED Entitlement to an increased disability rating for bilateral foot disorder, described as pes planus with plantar fasciitis, currently evaluated as 10 percent disabling prior to January 14, 2015, 30 percent disabling from January 15, 2015 to November 3, 2017, and 50 percent disabling thereafter is remanded. Entitlement to service connection for left shoulder disorder is remanded. Entitlement to service connection for low back disorder, to include as secondary to service-connected bilateral foot disorder, is remanded. Entitlement to service connection for bilateral hip disorder, to include as secondary to service-connected bilateral foot disorder, is remanded. Entitlement to service connection for bilateral bone spurs of the feet, to include as secondary to service-connected bilateral foot disorder, is remanded. Entitlement to service connection for left knee disorder, to include left leg pain and as secondary to service-connected bilateral foot disorder, is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1972 to July 1974. In December 2017, the Veteran’s wife testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In a March 2018 decision, in pertinent part, the Board continued a 10 percent disability rating for the Veteran’s bilateral foot disorder prior to January 14, 2015, and a 30 percent disability rating from January 14, 2015 to November 3, 2017; and awarded a 50 percent disability rating, effective November 3, 2017. The Board also denied entitlement to service connection for left shoulder disorder, low back disorder and bilateral hip disorder. The Veteran appealed these issues to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court granted the parties’ Joint Motion for Remand (JMR), and remanded these issues to the Board for action consistent with the terms of the JMR. In March 2018, the Board also remanded the issues of entitlement to service connection for bilateral bone spurs of the feet, TBI, left knee disorder, to include left leg pain, an acquired psychiatric disorder and sleep apnea. These issues have now been returned to the Board. The Board also remanded the issue of entitlement to service connection for headaches. This matter was granted in a September 2019 rating decision; representing a full grant of the benefit sought on appeal. Lastly, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU rating is part of an appeal of an increased rating claim when such claim is raised by the record. Here, in December 2019, the Veteran’s representative raised the claim for TDIU as part of his claim for an increased rating for his bilateral foot disorder. As the issue of TDIU has been raised by the record, the Board also considers this matter on appeal. Entitlement to an increased disability rating for bilateral foot disorder, described as pes planus with plantar fasciitis, currently evaluated as 10 percent disabling prior to January 14, 2015, 30 percent disabling from January 15, 2015 to November 3, 2017, and 50 percent disabling thereafter is remanded. The JMR found that the Board failed to consider whether the diagnosis of Morton’s neuroma and metatarsalgia at the November 2017 private examination warranted a separate rating under Diagnostic Code 5279 for such disorders. In light of the JMR, the Board finds that a VA opinion is necessary to determine whether these disorders are part and parcel of or secondary to the Veterans’ service-connected bilateral foot disorder. Moreover, the JMR found that the Board failed to provide an adequate statement of reasons or basis for why a higher rating was not warranted due to functional loss during flare-ups. The JMR specifically referenced the Veteran’s statements made at the September 2012 VA examination and January 2015 VA examination concerning functional impairment during flare-ups. In order to comply with the JMR, the Board finds that a retrospective medical opinion is necessary to determine whether a rating in excess of 10 percent prior to January 14, 2015 and in excess of 30 percent from January 15, 2015 to November 3, 2017 is warranted based on functional loss during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As noted in the prior remand, the Veteran experienced a stroke in January 2017 and is possibly confined to a wheelchair without the ability to communicate effectively. Therefore, the necessity of an in-person examination, rather than an opinion based solely on the evidence of record, will be left to the VA medical professional to whom the above-mandated examinations are assigned. Entitlement to service connection for left shoulder disorder, low back disorder, to include as secondary to service-connected bilateral foot disorder, and bilateral hip disorder, to include as secondary to service-connected bilateral foot disorder, are remanded. The Board previously denied these issues finding that while there were reports of pain, there were no current diagnoses of a left shoulder disorder, low back disorder or bilateral hip disorder. However, in Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018), the U.S. Court of Appeals for the Federal Circuit held that pain, which amounts to a functional impairment can constitute a “disability” for purposes of service connection even without an accompanying diagnosis or identifiable condition. Thus, the JMR found that the Board’s reliance on Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) indicating that pain alone did not establish a current diagnosis was error. Moreover, a February 2013 VA MRI of the lumbar spine showed L5-S1 disk protrusion with annular rent impinging on the descending left S1 nerve root as well as epidural lipomatosis at the L4-5 and L5-S1levels resulting in significant canal stenosis and compression of the cauda equina, which was also not addressed by the Board. Importantly, service treatment records show that the Veteran reported low back pain in March 1974 and again in May 1974 as well as right hip pain. Further, a July 1973 record showed that the Veteran suffered a contusion of his left shoulder when he was thrown from a truck. The Veteran has also asserted that his low back disorder and bilateral hip disorder are secondary to his service-connected bilateral foot disorders. Thus, the Board finds that a VA examination is warranted to determine the etiology of these disorders. Entitlement to service connection for bilateral bone spurs of the feet, to include as secondary to service-connected bilateral foot disorder, is remanded. This matter was previously remanded to afford the Veteran a VA examination with opinion. The July 2019 VA examiner indicated that the condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. Although the examiner’s opinion responded to whether the bone spurs were directly related to service, the examiner’s rationale addressed whether the Veteran’s disability was secondary to his service-connected bilateral foot disorder. In this regard, the examiner rationalized that there was a lack of documentation to support that bone spurs are related to pes planus or plantar fasciitis. Review of scientific medical literature, including WebMD, indicates bone spurs usually do not cause problems and they are related to degenerative joint disease. However, the citation from WebMD appears to address the spine as opposed to the foot. Moreover, the examiner did not specifically discuss the Veteran’s disorder, or proffer an opinion on whether such was aggravated by his service-connected bilateral foot disorder. Importantly, despite the Veteran reporting that his bone spurs began in service and service treatment records documenting foot trouble, the examiner’s rationale did not discuss why such disorder was not directly related to service. As such, the Board must find that the examiner failed to offer a clear secondary opinion as well as adequate rationale one either direct or secondary theories of entitlement. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, an addendum opinion is necessary. Entitlement to service connection for left knee disorder, to include as secondary to service-connected bilateral foot disorder, is remanded. On remand, the July 2019 VA examiner again opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness, but then addressed secondary causation in the rationale. The examiner rationalized that pes planus does not cause a knee condition as per medical literature. However, the citation from the medical literature indicated that if pes planus is left untreated, it could lead to knee pain. Moreover, the examiner also gave the wrong opinion with respect to aggravation stating that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness, which is the incorrect standard in this case. The examiner then rationalized that review of medical literature indicated that active pes planus may cause knee aching due to altered gait. The examiner continued that flatfoot can also cause shin pain (shin splints) and aching of the knee, hip, and/or lower back. Thus, it appears that the examiner’s rationale contradicts their opinion. Moreover, in the rationale, the examiner did not specifically address whether the Veteran’s pes planus caused his knee disorder, but rather couched the rationale in speculative terms. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Further, significantly, the United States Court of Appeals for Veterans Claims (Court) recently held that any incremental increase in nonservice-connected disability by service-connected conditions warrants secondary service connection regardless of permanence. See Ward v. Wilkie, No. 16-2157, 17-1204 (Vet. App. June 14, 2019). Thus, an opinion is needed as to whether the Veteran's bilateral foot disorder causes any incremental increase, even transient, in his left knee disorder regardless of permanence. Moreover, although service treatment records document a report of left knee pain in May 1974, the examiner offered no rationale as to whether the Veteran’s left knee disorder was directly related to service. As such, an addendum opinion is also necessary with respect to this issue. Entitlement to service connection for TBI is remanded. Although some symptoms were observed, the July 2019 VA TBI examiner found that the Veteran did not have a TBI. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner rationalized that there is no record in the service treatment records from Camp Pendleton of any head injury. Also, there was the Veteran’s self-report when a foot DBQ was done in 2015 when he told of a fractured right foot from a fall off a truck; again, he had no discussion of a head injury. In addition, three times, the VA said there was no service-connected TBI in February 2012, October 2017 and August 2018. However, as noted in the prior remand, the Veteran has consistently asserted that he was thrown from a truck while serving in the military, which caused him to strike his head. The Board notes that some of the Veteran’s service treatment records, and therefore documentation of such an incident, are unavailable. However, the examiner appears to only rely on one statement made in conjunction with a foot examination that had nothing to do with the head. Further, while not specifically diagnosing a head injury, service treatments records do document that the Veteran was thrown from a truck. Moreover, another VA examiner determined that the Veteran’s headaches were related to the incident in service and service connection has since be granted for headaches associated with TBI. As such, the VA examiner’s opinion with rationale is inadequate and this matter must be returned to determine whether the Veteran suffers from any other residuals of TBI. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. The Veteran is also seeking service connection for an acquired psychiatric disorder. The September 2012 VA examiner found that the Veteran did not meet the diagnostic criteria for posttraumatic stress disorder and there was no evidence that his current symptoms of depression were related to his military experience. However, she offered no rationale for this finding. On remand, the July 2019 VA examiner determined that the Veteran's diagnosis of major depressive disorder is less likely than not incurred in or caused by his military experiences. There is no evidence of this condition existing prior to the military. There is no evidence of a depressive symptom or condition being aggravated beyond its natural progression during the military. There is no evidence of mental health treatment during the military or after his military discharge in 1974. He didn't begin to report any mental health related symptoms until 2009. His depression symptoms are not related to his service-connected bilateral pes planus with plantar fasciitis. However, again, the examiner’s rationale is inadequate. In this regard, she discussed whether any symptoms or condition were aggravated in service; but this standard was incorrect as there was no clear and unmistakable evidence of a preexisting condition. Moreover, the examiner failed to determine whether the Veteran’s depression is related to the traumatic incidents previously described by the Veteran at the September 2012 examination, which the VA has already conceded as consistent with the places, facts and circumstances of service related to hostile miliary or terrorist activity. The examiner also failed to address the Veteran’s lay statements of pertinent symptomatology. Lastly, she offered no rationale for her secondary opinion. Moreover, the Veteran was recently service-connected for headaches associated with TBI and there may be a psychological component. As such, another VA examination with opinion is warranted. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. This issue was also previously remanded for VA examination. The July 2019 VA examiner again found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that sleep medicine note dated in May 2013 noted the Veteran's sleep study and sleep apnea diagnosis. According to Medscape literature, obstructive sleep apnea is caused by obstruction of the airway and involves both structural and nonstructural factors. There is no medical evidence to support a correlation between plantar fasciitis and obstructive sleep apnea. Again, the examiner gave an opinion on direct service connection, but the rationale failed to addressed service connection on a secondary basis. Moreover, the examiner did not address aggravation. The Veteran’s wife testified that his sleep apnea was due to his chronic conditions. Subsequently, the Veteran was service-connected for headaches, which is considered a chronic condition. As such, a secondary opinion is also necessary as to whether sleep apnea is secondary to his service-connected headaches. Thus, again, this issue must also be returned for another VA examination with opinion. Entitlement to a TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the remaining issues on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Arrange for the Veteran’s record to be provided to an appropriate clinician to determine whether the Veteran’s Morton’s neuroma and metatarsalgia is at least as likely as part and parcel of, proximately due to or aggravated by service-connected pes planus with plantar fasciitis. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. If possible, the VA examiner should also provide a retrospective medical opinion addressing the additional functional impairment of the Veteran’s service-connected bilateral foot disabilities during a flare-up. Specifically, the examiner should determine whether the Veteran’s functional impairment during flare-ups more nearly approximated severe flatfoot symptoms or worse prior to January 14, 2015 and pronounced flatfoot symptoms from January 15, 2015 to November 3, 2017. The examiner is also requested to comment on the Veteran’s ability to function in an occupational environment and to describe the functional effects of the Veteran’s service-connected bilateral foot disabilities on his employment. 2. Arrange for the Veteran’s record to be provided to an appropriate clinician to determine the nature and etiology of any left shoulder disorder, low back disorder, bilateral hip disorder, bilateral bone spurs of the feet and left knee disorder. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. The examiner must opine whether any left shoulder disorder, low back disorder, bilateral hip disorder, bilateral bone spurs of the feet and left knee disorder (1) is at least as likely as not related to an in-service injury, event, or disease, including the documented inservice incidents; (2) proximately due to service-connected bilateral foot disabilities, or (2) aggravated by service-connected bilateral foot disabilities. In proffering this opine, the examiner must determine whether the Veteran’s service-connected bilateral feet disabilities causes any incremental increase, even transient, in his other disabilities regardless of permanence. 3. Arrange for the Veteran’s record to be provided to an appropriate medical professional (VA TBI examinations must be performed by a physiatrist, psychiatrist, neurologist or neurosurgeon) so as to render an opinion on possible residuals of a TBI. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. The examiner should specifically provide, or rule out, a diagnosis of residuals of a traumatic brain injury. If it is determined that the Veteran suffers from or has suffered from residuals of TBI at any time during the relevant appeal period, he or she should state which symptoms or disorders, at least as likely as not (that is, a 50 percent or higher degree of probability) represent manifestations or residuals of an in-service TBI, specifically being thrown from a truck. 4. Arrange for the Veteran’s record to be provided to an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. The examiner must opine whether any acquired psychiatric disorder (1) is at least as likely as not related to an in-service injury, event, or disease, including the stressor incidents described by the Veteran; (2) proximately due to service-connected disabilities, or (2) aggravated by service-connected disabilities. In proffering this opine, the examiner must determine whether the Veteran’s service-connected disabilities causes any incremental increase, even transient, in his psychiatric disorder regardless of permanence. 5. Arrange for the Veteran’s record to be provided to an appropriate clinician to determine the nature and etiology of his sleep apnea. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. The examiner must opine whether the sleep apnea (1) is at least as likely as not related to an in-service injury, event, or disease; (2) proximately due to service-connected disabilities, or (2) aggravated by service-connected disabilities. In proffering this opine, the examiner must determine whether the Veteran’s service-connected disabilities causes any incremental increase, even transient, in his (Continued on next page)  sleep apnea regardless of permanence. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.