Citation Nr: 21000068 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-27 063A DATE: January 4, 2021 ORDER Service connection for a left knee disability is granted. Service connection for a right knee disability is granted. Service connection for a cervical spine disability is denied. Service connection for a low back disability is granted. The application to reopen the claim of service connection for a respiratory disability is granted. REMANDED Service connection for a respiratory disability is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disability is aggravated by service-connected bilateral pes planus. 2. The Veteran’s right knee disability is aggravated by service-connected bilateral pes planus. 3. The Veteran’s cervical spine disability is not caused or aggravated by service-connected bilateral pes planus. 4. The Veteran’s low back disability is aggravated by service-connected bilateral pes planus. 5. In a July 1998 decision, the Board denied the Veteran’s appeal as to the claim of service connection for a respiratory disability. The Chairman of the Board did not order reconsideration. 6. Evidence received since the July 1998 decision relates to a previously unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability as secondary to bilateral pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a right knee disability as secondary to bilateral pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for a lumbar spine disability as secondary to bilateral pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The July 1998 Board decision that denied the claim of service connection for a respiratory disability is final. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 20.1100(a), 20.1104 (1998). 6. Evidence received since the July 1998 Board decision is new and material and the claim of service connection for a respiratory disability is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to January 1971.This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Service connection for a left knee disability and service connection for a right knee disability. The Veteran asserts that his left and right knee disabilities are secondary to his service-connected pes planus (flatfoot) disability. The April 2019 VA examination shows the Veteran has a current disability of a bilateral knee disorder. The April 2019 VA examiner opined that the knee disability was not caused by his pes planus, but is at least as likely as not aggravated beyond its natural progression by his service-connected pes planus. The April 2019 VA examiner provided a July 2020 opinion contradicting her April 2019 opinion. However, the examiner used an incorrect standard for the second opinion. The examiner opined that the knee disorders were not solely and permanently aggravated by service-connected pes planus. Permanent aggravation is not required. Ward v. Wilkie, 31 Vet. App. 233 (2019) (under 38 C.F.R. § 3.310(b), aggravation does not require permanence). Accordingly, the July 2020 opinion is not probative. As the April 2019 VA opinion in favor of aggravation is probative, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bilateral knee disability is aggravated beyond its natural progression by his service-connected pes planus. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for the left and right knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for a cervical spine disability. The Veteran contends that his cervical spine disability is secondary to his service-connected pes planus (flatfoot) disability. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran has a current disability degenerative disc disease and residuals of cervical fusion, the preponderance of the evidence is against finding that the Veteran’s cervical spine (i.e. neck) disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The April 2019 VA examiner opined that the Veteran’s neck disability is less likely than not caused or aggravated by the service-connected pes planus. The examiner acknowledged the Veteran’s chiropractor’s finding that pes planus caused abnormal weight bearing. The examiner reasoned that the pes planus caused abnormal weight bearing, but the neck is not a weight bearing joint. The examiner further reasoned that the most common cause of degenerative changes of the cervical spine is natural wear and tear which occurs with aging. The Board finds this opinion is probative. The VA examiner reviewed the evidence of record and considered the Veteran’s actual history and statements. The examiners rendered opinions with reasoned medical explanations and analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, there has been substantial compliance with the previous Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The examiner’s opinion that pes planus caused abnormal weight bearing, but the neck is not a weight bearing joint is a sufficient rationale both for the “due to” and “aggravation” prongs of secondary service connection. It is reasonable to conclude that if there is no physical connection through the effects of weight bearing by the pes planus, there can be not aggravation of the neck disability. This is the only probative opinion of record. The February 2011 private medical opinion addresses only the low back, not the neck. The Veteran believes his neck disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected pes planus. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the anatomical relationships and complex mechanics of the musculoskeletal system. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Veteran’s opinion is not competent evidence. 3. Service connection for a low back disability. The Veteran asserts that his lumbar spine disability is secondary to his service-connected pes planus (flatfoot) disability. The April 2019 VA examination shows the Veteran has a current disability of a vertebral dislocation, degenerative changes, strain, and disc herniation. The April 2019 VA examiner opined that the lumbar spine disability was not caused by the Veteran’s pes planus, and that degenerative changes of his lumbar spine occurred with natural aging, work injures to his back, and due to his weight. The examiner concluded that the Veteran’s back disability was at least as likely as not aggravated beyond its natural progress by his service-connected pes planus. The April 2019 VA examiner provided a July 2020 opinion contradicting her April 2019 opinion. However, the examiner used an incorrect standard for the second opinion. The examiner opined that the lumbar spine disorder was not solely and permanently aggravated by service-connected pes planus. Permanent aggravation is not required. Ward v. Wilkie, 31 Vet. App. 233 (2019) (under 38 C.F.R. § 3.310(b), aggravation does not require permanence). Accordingly, the July 2020 opinion is not probative. As the April 2019 VA opinion in favor of aggravation is probative, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current low back disability is aggravated beyond its natural progression by his service-connected pes planus. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for lumbar spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. The application to reopen the claim of service connection for a respiratory disability. Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. In this case, the Board denied the Veteran’s claim of service connection for respiratory disability in a July 1998 decision, finding that the Veteran did not have a current disability. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision. Therefore, the Board decision is final. See 38 C.F.R. §§ 3.156, 20.1100, 20.1104. The evidence received since the July 1998 decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, VA treatment records were associated with the record in July 2018 showing that the Veteran had bronchitis the previous year. This new evidence addresses the reason for the previous denial; that is, a current disability, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits REASONS FOR REMAND 1. Service connection for a respiratory disability is remanded. Unfortunately, the Board finds that a remand is necessary and regrets the additional delay. Remand is necessary because the issue of asthma was raised in the April 2019 VA examination and the resulting medical opinion did not address the appropriate standard. Specifically, the examiner diagnosed the Veteran with asthma and noted that the Veteran had childhood asthma, but the rationale for the opinion seems to indicate asthma is not present. If asthma is not present, or has not been present for the entirety of the appeal period (which began in December 2010), the opinion is not clear and contradicts the diagnosis. If asthma is present, the presumption of soundness attached because it was not noted on his April 1969 enlistment examination, and the appropriate type of medical opinion has not been rendered. Thus, an addendum medical opinion is needed. With respect to pneumonia, the April 2019 medical opinion diagnosed the Veteran with pneumonia as a current disability, however, did not provide a rationale as to why it was not related to service. Instead the examiner’s rationale addressed the presence of no pneumonia at the time of the examination. The appropriate question is whether the pneumonia that occurred during the appeal period was related to service. Finally, the April 2019 VA medical opinion is not clear as to whether the pulmonary function test results which the examiner relied upon to determine that there was no chronic bronchitis disability mean that there was no chronic bronchitis disability at any time during the appeal period, even if the chronic bronchitis resolved. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding, relevant VA treatment records that have not already been associated with the claims file. 2. Then, obtain an addendum VA medical opinion from a suitable clinician regarding the Veteran’s respiratory disability claim. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. (a.) Is it at least as likely as not that the Veteran had an asthma disability at any time during the appeal period (since December 2010), even if it since resolved? (i.) If the examiner responded in the affirmative about asthma, did asthma clearly and unmistakably (undebatable) preexist the Veteran’s service? (ii.) If the examiner finds asthma did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? (iii.) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including to the bouts of pneumonia and bronchitis the Veteran asserts he experienced during service. (b.) Is it at least as likely as not that the Veteran had a pneumonia disability, other than independent bouts of acute pneumonia, at any time during the appeal period (since December 2010), even if it since resolved? (c.) Is it at least as likely as not that the Veteran had a chronic bronchitis disability, other than independent bouts of acute disease, at any time during the appeal period (since December 2010), even if it since resolved? (d.) If the examiner finds there is or has been a current pneumonia disability, the examiner must opine whether it is at least as likely as not related to service, including to the bouts of pneumonia and bronchitis the Veteran asserts he experienced during service. (e.) If the examiner finds there is or has been a current chronic bronchitis disability, the examiner must opine whether it is at least as likely as not related to service, including to the bouts of pneumonia and bronchitis the Veteran asserts he experienced during service. In determining whether there is a current disability, the Board draws the examiner’s attention to the following VA treatment records, while acknowledging that independent review is required: (a.) diagnosis of chronic bronchitis in February 2014; (b.) diagnosis of acute bronchitis/sinusitis in February 2015; (c.) diagnosis of bronchitis/pneumonia in April 2015; (d.) July 2018 treatment records noting bronchitis last year and pneumonia 5 times in the distant past; and March 2019 treatment for a cough for three months. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, 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.