Citation Nr: 20032346 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 09-45 486 DATE: May 7, 2020 ORDER Service connection for right knee degenerative joint disease (DJD) is granted. Service connection for left knee DJD is granted. Service connection for a right foot disorder, other than pes planus with plantar fasciitis, is denied. Service connection for a left foot disorder, other than pes planus with plantar fasciitis, is denied. REMANDED Service connection for a right hip disorder, to include as secondary to service-connected disability, is remanded. Service connection for left hip disorder, to include as secondary to service-connected disability, is remanded. Service connection for a psychiatric disorder, to include depression, is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.   FINDINGS OF FACT 1. The Veteran’s bilateral knee DJD had its onset during service. 2. The Veteran’s bilateral foot disorders, other than pes planus with plantar fasciitis, did not have their onset during service and are not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee DJD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left knee DJD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right foot disorder, other than pes planus with plantar fasciitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a left foot disorder, other than pes planus with plantar fasciitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to November 1980 and from August 1984 to June 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2012, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer with the Board. The Veteran did not respond to a July 2016 Board letter inquiring whether he desired another hearing before a Veterans Law Judge who would decide his claim, and it is assumed that he does not want another hearing. The claims came before the Board in June 2014 and were remanded for further development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection 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. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for right knee DJD. 2. Service connection for left knee DJD. The Veteran contends that his knee disorders had their onset during service. Alternatively, he asserts the conditions are related to his service-connected disabilities. The Veteran’s service treatment records include treatment for his knees. A June 1990 service record showed the Veteran complained of a burning sensation in his right knee and was diagnosed with right knee pain and patellofemoral syndrome. Further, in September 1991 records, the Veteran reported that daily running hurt his knees and it was recommended that he run remedially three times per week on alternative days due to the increased pain. In May 2016, the Board requested a medical opinion from a Veterans Health Administration (VHA) expert regarding the etiology of the Veteran’s bilateral knee DJD. A June 2016 opinion was obtained from an orthopedic surgeon at a VA Medical Center. The reviewer provided a positive nexus opinion and stated it is at least as likely as not that the Veteran’s knee disorders are related to service. The claims came before the Board again and it determined another VHA opinion was required from an orthopedic surgeon. A March 2018 medical opinion was provided from a VA orthopedic surgeon in which the reviewer indicated the Veteran’s bilateral knee DJD had its onset during service. He reported the Veteran’s service treatment records are positive for evaluation and complaints of bilateral knee pain and that his complaints are consistent with the early stages of DJD in the knees. He noted the Veteran gives a credible history of nexus of symptoms from the time he left service until present and he has current diagnoses of bilateral knee DJD. Despite negative nexus opinions rendered in September 2013 and October 2015 in this case, the Board determines the evidence is at least in equipoise with respect to the nexus element for these claims and service connection is warranted for bilateral knee DJD. The Veteran had in-service knee complaints and there is persuasive medical evidence suggesting the onset of his knee DJD was during service. While there is negative medical evidence of record, there are also medical opinions in support of the claims, dated June 2016 and March 2018. The Board determines the positive March 2018 VHA opinion which supports the claims is well-reasoned and the most persuasive evidence of record that the Veteran’s bilateral knee DJD had its onset during service. In sum, the Board finds the evidence has reached a level of equipoise and reasonable doubt must be resolved in the Veteran’s favor. Thus, the Veteran’s bilateral knee DJD had its onset during service and service connection for bilateral knee DJD may be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for a right foot disorder, other than pes planus with plantar fasciitis. 4. Service connection for a left foot disorder, other than pes planus with plantar fasciitis. The Veteran contends that he has bilateral foot disorders, other than pes planus with plantar fasciitis, which had their onset during service. Alternatively, he asserts his feet conditions are related to his service-connected disabilities. In October 2013, the Regional Office (RO) granted service connection for pes planus with plantar fasciitis and a 30 percent rating was assigned. Thus, review is necessary to determine the etiology of any other diagnosed feet disabilities. The Veteran’s service treatment records documented pes planus in 1991. Pes planus is also shown in February 1993, within a year of the Veteran’s separation from service. The Veteran was afforded a VA examination in December 2008 in which he was diagnosed with bilateral plantar fasciitis, bilateral pes planus, and bilateral heel spurs. Following the July 2013 Board remand, he underwent a September 2013 VA examination in which the examiner found hallux valgus of the left foot, plantar fasciitis, DJD of the first MTP bilaterally, and acquired pes planus bilaterally. The examiner determined it is less likely as not that hallux valgus and DJD of the first MTP were a result of or caused by service because the service treatment records are silent for these conditions which were diagnosed many years after service. She stated it is as likely as not that the acquired pes planus was caused by or a result of service because the enlistment physical was silent for such and the service treatment records documented pes planus in 1991. Moreover, plantar fasciitis was found to be caused by or a result of service because pes planus is a recognized cause of plantar fasciitis. The September 2013 examiner also diagnosed the Veteran with heel spur of the right foot, acquired pes planus, plantar fasciitis of the right foot, and DJD first MTP on the right. She determined that heel spur and DJD first MTP are less likely as not caused by or a result of service, because service treatment records were silent for these conditions which were diagnosed many years after service. The claims were remanded by the Board in June 2014 for further development, including a VA examination. The October 2015 VA examiner opined it is less likely as not the Veteran has left foot heel spur as all x-rays of the left foot were negative for the condition. She stated it is less likely as not the Veteran has plantar fasciitis of the left foot because the foot symptomatology reported in June 1992 was consistent with pes planus related plantar fasciitis, subsequently diagnosed in 1994. She indicated the Veteran’s hallux valgus of the left foot, heel spur of the right foot and DJD first MTP of the right and left feet are not related to service. She noted the service treatment records are silent for these conditions and further, the conditions are not related to the service-connected right foot disability as there is no medical nexus between the disorders. A June 2016 VHA opinion was required, and the reviewer indicated the Veteran’s left plantar fasciitis is less likely than not related to service or his service-connected hypertension due to a lack of medical nexus. She similarly stated the Veteran’s left hallux valgus and right heel spur are not related to service or the service-connected hypertension, as they are both in large part genetic. The Board determined the issues were not resolved and an additional VHA opinion was required from an orthopedic surgeon. After review of the evidence, the March 2018 VHA physician determined it is less likely as not that any diagnosed foot disorder, other than pes planus with bilateral plantar fasciitis, had its onset in or is otherwise related to service. He further opined it is less likely as not that any diagnosed disorder was caused by the service-connected pes planus with bilateral plantar fasciitis. He noted the Veteran has been diagnosed with pes planus, bilateral plantar fasciitis, left hallux valgus with DJD of the first MTP joint, and right heel spur. He indicated the Veteran’s service treatment records show complaints of pain in his feet consistent with his service-connected plantar fasciitis. He reported heel spurs are common findings on x-ray and do not always correlate with any clinical symptoms and additionally, can be seen in association with plantar fasciitis, but are not a separate condition. The reviewer stated his service treatment records are negative for hallux valgus or DJD of the first MTP joint. Further, the Veteran’s VA treatment records include a report of x-ray of the bilateral feet from February 1993, which revealed “mild flat foot on both sides. There is no evidence of arthritis changes.” The VHA physician indicated hallux valgus and DJD of the first MTP joint are common disorders of the foot that often develop over time and are not typically caused by other conditions, such as pes planus or plantar fasciitis. In consideration of this evidence, and the persuasive March 2018 VHA opinion, the Board concludes service connection for a foot disorder, other than pes planus with plantar fasciitis, is not warranted. The most persuasive medical evidence of record supports that the Veteran’s feet disorders, other than pes planus with plantar fasciitis, were not related to service or his service-connected disabilities. The Board finds the March 2018 VHA physician’s opinion to be the most persuasive evidence of record and it concludes the Veteran’s feet disorders, other than pes planus with plantar fasciitis, are not related to his service. Moreover, the conditions are not causally linked to his service-connected disabilities. The March 2018 reviewer’s opinion is consistent with the evidence of record, including the Veteran’s service treatment records, post-service medical evidence, the objective test results and his lay contentions. The physician’s opinion contains clear conclusions with supporting data, as well as well-reasoned medical explanations connecting the two. As such, the opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes there are no medical opinions supporting that the Veteran has a foot disorder, other than pes planus with plantar fasciitis, which is related to service or a service-connected disability. The Board acknowledges the in-service feet symptoms and treatment the Veteran experienced; however, as noted above, he is service connected for bilateral pes planus with plantar fasciitis and a 30 percent rating has been assigned. After a thorough review of the service treatment records, along with the medical and lay evidence of record, including the highly probative March 2018 medical opinion, service connection is not supported for a separate foot disorder, aside from the already service-connected pes planus with plantar fasciitis. Although the Board is remanding other claims for additional development, remand is not necessary for the issues decided herein, as there is no reasonable possibility that further assistance would substantiate these claims. The etiology of the Veteran’s diagnosed foot conditions have been well explained and the evidence is against a finding or suggestion that there is any relationship between those conditions and other service-connected disabilities, to include his now service-connected DJD of the knees or his service-connected back condition. See 38 C.F.R. § 3.159(d). In sum, the preponderance of the evidence, including the March 2018 medical opinion, is against the claims, particularly the nexus element. Thus, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a bilateral foot disorder, other than pes planus with plantar fasciitis, is not warranted. REASONS FOR REMAND 1. Service connection for a right hip disorder. 2. Service connection for a left hip disorder. The Board sincerely regrets additional delay, but finds that additional development is necessary prior to final adjudication of the claims in order to fully satisfy the duty to assist. The Veteran contends that his bilateral hip DJD is related to service or alternatively, associates with his service-connected disabilities, that now include service-connected bilateral knee DJD and spondylosis lumbar spine. In a November 2008 statement, the Veteran reported that running in service resulted in pain in his hips. He similarly testified in the December 2012 Board hearing that the current arthritis in his hips had its onset during service. The Veteran’s service treatment records are silent for complaints or treatment related to a hip disorder. However, as noted above, in September 1991 he reported trouble with daily running. In an April 2008 VA neurology treatment record, it was noted that x-rays showed more than expected DJD in the Veteran’s hip for his age. In a May 2008 treatment record, the Veteran indicated longstanding back and hip girdle pain over the past 20 years. In an August 2008 hospital discharge summary completed in connection with his left total hip arthroplasty, it was noted that the Veteran had a 20-year history of hip pain. In a November 2008 statement, the Veteran reported that running in service resulted in pain in his hips. He similarly testified in the December 2012 Board hearing that the current arthritis in his hips had its onset during service. In the September 2013 VA examination, the Veteran was diagnosed with bilateral hip DJD. In the later September 2013 medical opinion, the examiner determined it is less likely than not that the Veteran’s bilateral hip conditions were incurred in, caused by or aggravated beyond their normal and natural aging process by his service. Moreover, the examiner stated the Veteran’s bilateral hip conditions are consistent with his normal and natural aging process, including his total hip replacement surgeries in 2008 (left) and 2009 (right). The claims were remanded by the Board in June 2014 for further development, including a VA examination. An October 2015 VA opinion was provided in which the examiner stated the Veteran’s bilateral hip disability was not caused by or related to service because the service treatment records, including the separation examination, are completely silent for hip symptoms. She also stated it is less likely as not that the Veteran’s hip disability was aggravated beyond the natural progression by his service-connected hypertension or medication taken for it. A June 2016 VHA opinion was obtained in which the reviewer opined it is less likely than not that the Veteran’s bilateral hip DJD was due to and/or increased in severity beyond the natural progression due to his service-connected hypertension or the medication required for the disorder. The Board determined an additional VHA opinion was required, as the June 2016 opinion provided conclusory explanations without adequate supporting rationale. Thereafter, the March 2018 VHA opinion was submitted from a VA orthopedic surgeon who provided a negative nexus opinion. He stated it is less likely than not that the Veteran’s bilateral hip disorders had their onset in or are otherwise related to service. Further, he indicated the Veteran’s hip conditions were not caused or aggravated by his service-connected disabilities, including his pes planus with bilateral plantar fasciitis. The Board finds that an additional opinion is needed to directly address whether the Veteran’s bilateral hip disorders were caused by or aggravated by his service-connected bilateral knee DJD or by his service-connected back conditions, as such opinions do not yet appear in the claims file. 3. Service connection for a psychiatric disorder, to include depression. The claim was remanded by the Board in June 2014 for a VA examination to determine the etiology of any diagnosed psychiatric diagnosis. Thereafter, the RO scheduled a VA psychiatric examination for September 2015; however, the examination was canceled, and the reason listed was that the Veteran refused the examination. The Veteran submitted an October 2015 correspondence which indicated he had recently changed his address effective February 2015 and that he may not have received all his mail at that time. Later in October 2015, the Veteran contacted the RO and clarified his claims; however, he did not address his psychiatric claim and no further evidence was submitted in regard to the psychiatric claim. The Board notes the Veteran may not have received correspondence related to the September 2015 VA examination which he failed to attend, and he has not withdrawn the claim. In light of the fact that the only VA psychiatric examination during the appeal period is from November 2008, as well as fulfilling VA’s duty to assist with respect to obtaining examinations or opinions, the Veteran will be afforded another VA psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder, to include on a secondary basis. The Board notes when a veteran fails or refuses to report for a scheduled examination, his claims may be rated based on the evidence of record. 38 C.F.R. § 3.655; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (finding that the duty to assist is not a one-way street). 4. A TDIU. A total rating for compensation purposes may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). The Board recognizes the indication of the Veteran’s representative in the October 2019 Appellate Brief that the Veteran has met the criterion since December 2007. However, upon review, the Board notes that, although the Veteran’s combined rating is 70 percent, he does not currently have one disability ratable at 40 percent or more. As explained, currently the Veteran’s service-connected disabilities do not meet the schedular criteria for a TDIU. However, as the Board has now granted service connection for right and left knee disorders, the RO must assign disability ratings for such. Thus, with the assignment of the new ratings, it is possible that the Veteran’s service-connected disabilities will meet the schedular TDIU criteria and the knee disabilities may have an impact on the TDIU claim. The matters are REMANDED for the following action: 1. Refer the claims file to an appropriate medical professional to provide an addendum opinion as to the etiology of the Veteran’s diagnosed bilateral hip disorders. The need for another examination is left to the discretion of the examiner. Following review of the claims file, the examiner should provide an opinion on the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral hip disorder had its onset during, or is otherwise related to service, to include running long distances? (b) If not directly related to service, is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hip disorders were caused or aggravated beyond natural progression by his service-connected disabilities, including medication required for such disabilities, to include the now service-connected bilateral knee DJD or his service-connected back condition, spondylosis lumbar spine. Opinions regarding both causation and aggravation are necessary to fully respond to this request. A rationale must be provided for any opinion expressed as the Board is precluded from making any medical findings. 2. Schedule the Veteran for a VA psychiatric examination by an appropriate medical professional to determine the nature and etiology of any diagnosed psychiatric condition. First, the examiner should identify the Veteran’s current psychiatric disorder(s), including whether he has depression. With regard to the diagnosed disorder(s), the examiner should address the following: (a) Is it clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran had a psychiatric disorder prior to service? (b) If so, is it clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran’s preexisting psychiatric disorder was not aggravated by service. “Aggravation” is an increase in severity beyond the natural progress of the disease or temporary flare-ups. (c) Regardless of the above answers, is it at least as likely as not (50 percent probability or greater) that the Veteran’s psychiatric disorder had its onset during, or is otherwise related to, service? (d) If not directly related to service, is it at least as likely as not (50 percent or greater probability) that the psychiatric disorder was caused or aggravated by his service-connected disabilities, including medication required for such disabilities. A rationale must be provided for any opinion expressed as the Board is precluded from making any medical findings. 3. Readjudicate the claim for entitlement to a TDIU. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.