Citation Nr: 21000383 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-42 777A DATE: January 5, 2021 ORDER Entitlement to service connection for right leg pain with muscle spasms, to include as secondary to service-connected bilateral pes planus is denied. REMANDED Entitlement to service connection for left leg pain with muscle spasms, to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to initial compensable rating for bilateral hearing loss is remanded. FINDING OF FACT The most probative medical evidence of record indicates that the Veteran’s right leg pain with muscle spasms is not related to service and is not caused or aggravated by his service-connected bilateral pes planus. CONCLUSIONS OF LAW The criteria for service connection for right leg pain with muscle spasms to include as secondary to bilateral pes planus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1980 to August 1983. The Veteran also had a subsequent period of ACDUTRA from August 9, 1984 to August 22, 1984. These matters are before the Board of Veterans’ Appeals (Board) upon appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a June 2019 decision the Board denied the claims for service connection for left leg pain with muscle spasms and an initial compensable rating for bilateral hearing loss. Thereafter, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the portions of the Board’s decision regarding the denial of service connection for left leg pain and muscle spasms and the denial for a compensable rating for hearing loss. The case was remanded to the Board for additional development in compliance with the instructions in the JMPR. The Court did not disturb the favorable finding for service connection of bilateral pes planus. In the June 2019 decision the Board remanded the issue of entitlement to service connection for right leg pain with muscle spasm for further development. The Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). There has been substantial compliance with the remand directives and the claim is appropriate for adjudication. Entitlement to service connection for right leg pain with muscle spasms due to service-connected bilateral pes planus In order to establish service connection on a direct basis, the record must contain competent evidence of: (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 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran contends that his right leg pain with muscle spasm is caused by his service-connected bilateral pes planus. A Veteran is competent to describe symptoms that he experienced in service or at any time after service when he or she perceives or experiences symptoms directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). In addition, lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence is insufficient to establish a medical diagnosis or nexus. However, lay evidence may be sufficient to identify a medical diagnosis in those cases where the lay person is competent and identifying a medical diagnosis does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board is required to analyze the credibility and probative value of all evidence, account for any evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). A review of the Veteran’s service treatment records reflect that the Veteran had moderate bilateral pes planus on service entry and was assessed in the clinic continuously during service for bilateral foot pain. Upon discharge from the Army in 1983 and entry into active duty in the Army Reserves in 1984 the Veteran denied cramps in his legs, and bone, joint or other deformities. His clinical examination on discharge from the Army documented a normal clinical examination of the lower spine and the lower extremities. Turning to the VA treatment records, in August and November 2010, the Veteran was treated for increasing right leg pain which was described as 10 out of 10 and only partially subdued by high doses of over-the-counter pain medication. The Veteran was having difficulty with performing his part-time work at UPS due to pain. A November 2010 right hip x-ray demonstrated some minor bony irregularities which raised a question of remote trauma versus enthesopathic change. In August 2011, the Veteran was referred for an orthopedic consultation after a trial of gabapentin did not work. The Veteran’s right hip and thigh pain was assessed as radicular pain due to sciatica from the lumbar region in an August 2012 visit. The Veteran was afforded a VA examination in March 2013 for muscle injuries. The Veteran claimed that his right leg muscle spasm was secondary to his service-connected pes planus. The examiner noted the Veteran’s complaint of pain was described as a muscle spasm in the posterior aspect of his right leg which usually was initiated with prolonged sitting, including driving, and was not associated with any injury to the right leg fascia or muscles. The Veteran was treating the pain with muscle relaxants and pain medication. The examiner noted the November 2010 VA treatment records entry that after lumbar spine x-rays revealed degenerative changes, the Veteran was diagnosed with sciatica of the right leg. Upon examination, the Veteran was noted to have full strength of all muscle groups. The examiner concluded that the right leg pain was less likely than not proximately due to or the result of the Veteran’s service-connected bilateral pes planus. As rationale the examiner noted that the Veteran had classic sciatic nerve issues as well as a history of obesity and a disorder of the right patellofemoral joint of the knee. In July 2016 the Veteran presented with complaints of worsening pain in his right knee. The Veteran was seen by podiatry for pain in both feet and his entire right leg in September of 2016. In July 2017 the Veteran reported no improvement after physical therapy in this right knee pain symptoms; in a September 2017 orthopedic consultation the Veteran identified the front of his right knee as the focus of constant burning pain of a 6.5/10 which woke him up at night. An addendum opinion for the purpose of clarifying the etiology of the Veteran’s right leg pain was prepared in January 2020. The VA examiner carefully reviewed the Veteran’s treatment records which reflected an insidious onset of right knee pain three years before the examination which received temporary relief from a series of cortisone shots as well as treatment records regarding the Veteran’s pes planus and right thigh pain. The examiner concluded that the Veteran’s right leg pain is less likely than not proximately due to or aggravated by the Veteran’s service-connected disabilities, including bilateral pes planus. The examiner’s rationale was that sciatica is not caused, worsened or aggravated by pes planus or any other service-related disability. The Board has carefully considered the Veteran's lay statements in support of his claim. Although laypersons are competent to provide opinions on some medical issues, the issue of the etiology of this type of musculoskeletal disorder generally falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377. The Veteran, for example, is competent to report foot and leg pain as that is subject to his lay observation. As a layperson, however, the Veteran has not been shown to possess the specialized medical expertise to diagnose radicular disease and determine its etiology. On the other hand, the Board assigns the opinions of the VA medical examiner who evaluated the medical evidence, considered the Veteran’s lay statements and performed an in-person clinical examination of the Veteran high probative value. While the Veteran’s confirmed current disability has satisfied the first prong required for direct service connection, there is no evidence supporting an inservice incident which is the second required prong of direct service connection such that service is not possible and direct service connection must be denied, See Shedden, supra. The Board finds that the competent medical evidence demonstrating the absence of nexus between the currently diagnosed right sciatica claimed as right leg pain with muscle spasm with active duty service or service-connected disabilities outweighs any evidence of record that is suggestive of a nexus. In particular, the March 2013 VA examiner's opinion, in combination with the January 2020 addendum opinion, were thorough, well-explained, and based on review of the Veteran's medical history, and the interview and 2013 physical examination of the Veteran. The Board therefore places significant weight on the opinions of the VA examiners. See Nieves-Rodriguez, 22 Vet. App. at 304. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for direct or secondary service connection for right leg pain with muscle spasm. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for left leg pain with muscle spasm Entitlement to initial compensable rating for bilateral hearing loss The parties agreed that vacatur and remand were required as the Board erred in failing to ensure that VA satisfied the duty to assist by failing to obtain the Veteran’s VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The parties agreed that the Veteran’s Orlando VA Medical Center (VAMC) treatment records contain indications of outstanding records in notations in 2013 and 2015 that reflect future scheduled treatment for a prosthetics consult with physician follow-up, treatment for anxiety with follow-up anticipated, as well as an order for an audiology consultation. Other than a few records from 2015, which VA obtained in June 2016, there are no VAMC records dated after April 2013. 38 C.F.R. § 3.159(c)(3); see also Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). These regulations extend the VA’s duty to assist to obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance. In addition, the Board erred when it failed to ensure that an ordered VA examination had been conducted appropriately. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board stated that VA had not provided Veteran with an examination of his left leg but found no duty to assist error as it determined an examination was not needed. The parties note, however, that the Veteran underwent VA examination in May 2013. At that time, the examiner was asked to render an opinion regarding both Veteran’s legs, consistent with his August 2012 claim for benefits for bilateral leg disabilities. The examiner provided an opinion regarding the Veteran’s right leg only, erroneously indicating that there was no existing claim pertaining to his left leg. As VA previously requested an opinion regarding the Veteran’s left leg, and the examiner failed to render an opinion as to the Veteran’s left leg, an examination must now be obtained. As such, on remand, the Board must ensure that the Veteran is provided a VA examination assessing the etiology of his claimed left leg disability. See Barr, 21 Vet. App. at 311. The Board also notes that an audiology consultation was ordered in 2013. Given the Veteran’s claim for bilateral hearing loss, the record of any audiology consultation obtained in 2013 should be obtained and an updated audiology examination completed. On remand, the Veteran may submit additional evidence and argument. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). The Court has held that “[a] remand is meant to entail a critical examination of the justification for the decision.’ Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Thus, on remand, the Board “will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.” Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). The matters are REMANDED for the following action: 1. Obtain all the Veteran's outstanding VA treatment records and associate them with the electronic claims file. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Notice of unavailable treatment records must be provided to the Veteran and his representative. 2. Ask the Veteran to identify any relevant private treatment records and request that the Veteran submit or authorize the release of such private treatment records. Then, make appropriate efforts to obtain any records so authorized for release. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given an opportunity to provide them. 3. After completing the above development, arrange for the following: (a) an examination of the Veteran’s left leg, in accordance with protocols established for the pandemic, to determine whether he has a current disability of his left leg and, if so, whether the left leg disability is at least as likely as not (e.g., 50 percent or greater) that the current disability of the left leg was incurred in or aggravated by service. or is secondary to the Veteran’s service-connected bilateral pes planus and, (b) an examination by an appropriate clinician to determine the current severity of the Veteran’s service-connected hearing loss to include audiometric evaluation, speech recognition testing and identification of any symptoms and functional impairments including an assessment of the effect of any functional impairments on occupational functioning and activities of daily living. A complete rationale should be provided for all opinions expressed to include consideration of all applicable evidence associated with the Veteran's electronic claims file. (Continued on the next page)   The examiner should be mindful that the Veteran is competent to report his symptoms and the examiner should offer an explanation if any subjective account of the Veteran is disregarded. 4. After completing the above, and any other development as many be indicated by any response received because of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denise Adams Hill, Associate 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.