Citation Nr: 20026037 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 15-14 298 DATE: April 15, 2020 ORDER Entitlement to service connection for a lumbar spine disability is denied. REMANDED Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded. FINDING OF FACT The Veteran’s lumbar spine disability did not have its onset during active service, nor is it otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to June 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2012 rating decision rating decision of the Winston Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in December 2018. A transcript of the hearing is in the Veteran’s file. In June 2019, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a lumbar spine is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran seeks service connection for a lumbar spine condition due to active duty service. At his December 2018 Board hearing, the Veteran stated that he injured his back in service when he would jump out of helicopters and then walk several miles to get on a truck. He reported that the “wear and tear” of the jumps injured his back. Service treatment records are silent for treatment or complaints for any lower back problems. Post service VA treatment medical notes dated in September 2011 show an assessment of chronic low back pain for 3 or 4 years. The Veteran was afforded a VA spine examination in March 2015. The Veteran reported the onset of low back pain 6 years prior. Diagnoses of degenerative joint disease and degenerative disc disease were rendered. The VA examiner opined that the Veteran’s claimed low back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner stated that there was no documentation in the service treatment records to support the Veteran’s claim. The separation physical and personal history at that time were negative for any complaints. It was noted that the Veteran had stated that he was in the 101st Airborne from 1976 to 1979. The VA examiner stated that there was no available documentation of a parachute badge and that the 101st was an air assault unit, at this time, and was no longer doing parachute jumps. It was noted that the Veteran admitted to that, but stated that they had to jump several feet from out of helicopters. The Veteran was afforded a VA spine examination in December 2019. The Veteran reported not being able to bend over or work for long periods of time. It was noted that the Veteran experienced lower back pain with radiculopathy in his left leg. Diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome were provided. In a January 2020 opinion, the VA examiner noted a review of the Veteran’s claims file, to include medical records and that the Veteran asserted that his back condition came from carrying the radio, a backpack and gear during service. The Veteran opined that the claimed condition, diagnosed lumbosacral degenerative joint disease, with stenosis and bilateral lower extremity radiculopathy, was less likely than not incurred in or caused by the claimed in-service injury event or illness. The examiner noted that the Veteran’s separation physical and personal history were negative for any complaints. The VA examiner also stated that the first documentation of low back pain was noted in February 2011, which was 32 years post-discharge. After a review of the record, the Board concludes that service connection is not warranted. The VA medical examination reports reflect that VA examiners did not find that the Veteran’s current low back condition was related to service. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Further, the January 2020 VA examiner’s opinion was provided based upon a comprehensive review of the claims file and examination of the Veteran, and an adequate rationale was given. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The Board is to weigh the evidence, and it finds that the January 2020 opinion to be the most probative. There is no competent medical opinion to the contrary. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a back disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the determining the diagnosis and etiology of the condition requires medical training and credentials. Thus, the Veteran’s opinion as to the cause of his claimed back condition does not constitute competent evidence. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for a right foot disability and entitlement to service connection for a left foot disability are remanded. At the Veteran’s December 2018 Board hearing, he stated that he had to carry a backpack which affected his feet during service. A VA foot examination, dated in March 2015, reflected that a diagnosis of acquired pes cavus of the left foot was provided. The examination report also showed that pain in the right foot was noted. Pursuant to the Board’s June 2019 remand, the Veteran was afforded a VA examination in December 2019. Diagnoses of hammertoes, hallux valgus, and left drop foot condition of the left foot, and metatarsalgia, acquired pes cavus and degenerative arthritis of both left and right feet were provided. The VA examiner noted a review of the Veteran’s claims file. In January 2020, the VA examiner opined that the claimed condition, diagnosed metatarsalgia and acquired pes cavus, was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner noted that service records did not note an ankle or foot condition. The first documentation of the first foot condition was in October 2007, which was 28 years post discharge. The VA examiner stated that that the Veteran reported wearing a left foot brace while growing up and that, during the course of his service, the Veteran’s left drop foot condition worsened especially after developing a lower back pain condition. The Veteran saw a podiatrist after service. The VA examiner also noted that there was no right foot condition. The Board notes that when no preexisting injury or disease is noted upon entry into service, the Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The burden then falls on the government to rebut the presumption of soundness by finding clear and unmistakable evidence that the Veteran’s injury or disease was both pre-existing and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the Veteran is entitled to service-connected benefits. Id. Regarding the Veteran’s claim for a left foot disability, it is unclear whether the VA examiner believed that the Veteran had a left foot disorder which preexisted his service, was aggravated therein, or had its onset at that time. The Board notes that the Veteran’s service treatment records do not indicate that the Veteran had a left foot condition upon entrance. Here, an addendum regarding the onset of the Veteran’s left foot disability is necessary. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the Veteran’s claim for a right foot disability, while the December 2019 VA examiner noted that there was there was no right foot condition, the VA examination report shows that the Veteran was diagnosed with metatarsalgia, acquired pes cavus, and degenerative arthritis of the right foot. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, no opinion has been provided regarding whether the diagnosed right foot condition is related to service. A remand is also necessary to obtain an addendum regarding the onset of the Veteran’s right foot disability. McLendon, supra. The matters are REMANDED for the following action: Return the Veteran’s claim folder to the examiner that provided the December 2019 VA foot conditions examination for an addendum opinion. If an additional examination is necessary, one should be scheduled. If the prior examiner is not available, the file must be forwarded to another examiner for the requested opinion. Based on the review of the record, the examiner is asked to specifically address the following: Regarding the claimed left foot disability: (a) Opine whether it is clear and unmistakable (obvious, manifest, and undebatable) that a left foot condition disability preexisted service. (b) If so, opine whether it is clear and unmistakable (obvious, manifest, and undebatable) that the preexisting left foot condition was NOT aggravated (i.e., permanently worsened) during service, or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress of a left foot disability. (c) If any responses in (1) and (2) above are negative, opine whether it is at least as likely as not (a probability of 50 percent or greater) that the left foot condition manifested in service or is etiologically related to service. The examiner must provide a complete rationale for all opinions expressed. The examiner is informed that “clear and unmistakable” evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390 (2009). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. Regarding the claimed right foot disability: Whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed right foot condition had its onset during, or is otherwise related to, the Veteran’s active service. The examiner must provide a comprehensive report, including complete rationales for all opinions and conclusions reached. Of note, the Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.