Citation Nr: 21001201 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 10-26 867 DATE: January 7, 2021 ORDER Entitlement to service connection for a back disability for accrued benefits purposes is denied. Entitlement to service connection for radiculopathy of the right lower extremity, to include the hip and ankle, for accrued benefits purposes is denied. REMANDED Entitlement to service connection for a left knee disability for accrued benefits purposes is remanded. Entitlement to service connection for a right knee disability for accrued benefits purposes is remanded. Entitlement to service connection for a left foot disability for accrued benefits purposes is remanded. Entitlement to service connection for a right foot disability for accrued benefits purposes is remanded. Entitlement to service connection for an acquired psychiatric disorder for accrued benefits purposes is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for accrued benefits purposes is remanded. FINDINGS OF FACT 1. On October 31, 2017, the Veteran passed away. Prior to his death, the Veteran had pending claims for entitlement to service connection for a back disability, right lower extremity radiculopathy, a bilateral knee disability, a bilateral foot disability, and an acquired psychiatric disorder. He also had a pending claim of entitlement to a TDIU. 2. In July 2018, the Appellant was recognized as a valid substitute for the Veteran. 3. The Veteran is not shown to have had a back disability that is causally or etiologically related to any disease, injury, or incident during his period of honorable active service from March 1999 to May 1999. 4. The Veteran is not shown to have had a right lower extremity disability that is causally or etiologically related to any disease, injury, or incident during his period of honorable active service from March 1999 to May 1999. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability for accrued benefits purposes have not been met. 3 8 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for radiculopathy of the right lower extremity, to include hip and ankle, for accrued benefits purposes have not been met. 3 8 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from March 1999 to May 1999. The Veteran also had service with the United States Navy from July 1999 to November 2000, which has been determined to be dishonorable. As a result, entitlement to VA benefits cannot be established based on service from July 1999 to November 2000. The Veteran passed away in October 2017. The Appellant in the present appeal is his surviving spouse. In July 2018, the Appellant was accepted as a valid substitute for the Veteran. The matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. In July 2018, the Board remanded the issues on appeal for further evidentiary development. The issues have returned to the Board for further appellate consideration. The Board notes that the Appellant was previously represented by the Disabled American Veterans (DAV). See December 2017 VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative. In November 2020, VA received a signed VA Form 21-22a, Appointment of Individual as Claimant’s Representative, changing representation from the DAV to Agent Candice Bennett. However, following recertification of the appeal to the Board, the agent submitted a letter in December 2020 indicating that she is withdrawing representation of the Appellant as to all issues on appeal. However, the Board finds that the representative has not shown good cause for withdrawal of representation. The motion is denied. 38 C.F.R. § 19.1, 20.6. Therefore, Agent Bennett continues to represent the Appellant in this appeal. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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 between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, 38 U.S.C. § 1154(a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 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). 1. Entitlement to service connection for a back disability for accrued benefits purposes is denied. See Argument Below 2. Entitlement to service connection for radiculopathy of the right lower extremity, to include the hip, and ankle, for accrued benefits purposes is denied. The Appellant contends entitlement to service connection for a back disability and right lower extremity radiculopathy, to include hip and ankle, for accrued benefits purposes. In an August 2005 administrative decision, the RO determined that the Veteran’s discharge for the period of service from July 21, 1999, to November 30, 2000, was considered to have been issued under dishonorable conditions, and therefore served as a bar to VA compensation for that period. 38 C.F.R. § 3.12(a). The evidence of record reflects that, in response to a timely notice of disagreement (NOD), the RO issued a statement of the case (SOC) in August 2006. The Veteran did not timely appeal that determination, and it became final. Thereafter, the Veteran sought to reopen the character of service issue. In January 2012, the RO informed the Veteran that the previous determination remained unchanged because new and material evidence was not received to overturn the decision. In January 2012, the Veteran filed a timely NOD. In May 2016, the Board remanded the issue for the issuance of a SOC to readjudicate the issue. In August 2016, the RO issued a SOC, in which it determined that the previous decision remained unchanged; however, in July 2018, the Board deemed the SOC to be defective, as it did not list the service department records associated with the file in March 2014 as evidence considered in the determination. Accordingly, the issue was remanded for issuance of an adequate SOC. In September 2020, the RO issued a SOC, in which it determined that the previous decision remained unchanged. The RO indicated that the service department records associated with the file in March 2014 were received on August 3, 2005, which is confirmed by the date stamp on the records; however, a scanning error appears to have mislabeled the records as being received on March 5, 2014. The RO further indicated that this evidence was considered in the August 10, 2005, administrative decision. The Appellant has not expressed disagreement with the September 2020 SOC. The Board reviewed the administrative decision in the context of all evidence of record and concurs in the finding. The Board acknowledges the August 2005 administrative decision and will still consider the Veteran’s claims for service connection with regard to his honorable period of active service. Service treatment records during the Veteran’s first period of honorable service (March 1999 to May 1999) are negative for any complaints, treatment or diagnoses for a back disability and right lower extremity radiculopathy, to include hip and ankle. There is no evidence of record of complaints, treatment or diagnoses for a back disability and right lower extremity radiculopathy, to include hip and ankle, between the Veteran’s first and second periods of service. Service treatment records during his second period of service (a dishonorable period of service from July 1999 to November 2000) show that the Veteran sought treatment for right leg and ankle pain after being involved in a motor vehicle accident (MVA). As reflected above, the Veteran’s in-service complaints of right leg and ankle pain occurred during a period of service that has been characterized as dishonorable for VA purposes. As discussed above, veterans are not eligible for service connection for disabilities caused by in-service incurrences during dishonorable periods of service. 38 U.S.C. § 5303(a). To the extent the Appellant believes that the Veteran’s claimed disorders are related to an event, injury, or disease that occurred during an honorable period of service, despite no evidence of any observable symptoms at the time, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the opinion of the Appellant regarding the etiology of these claimed disorders is not competent medical evidence. There is no evidence of an in-service event, injury, or disease related to the Veteran’s back and right lower extremity during a period of service that is not dishonorable, and no competent evidence suggesting that such disorders are related to a period of service that is not dishonorable. In the absence of such competent evidence, a VA opinion in this case is not warranted, as there exists no reasonable likelihood that such opinion would reveal favorable findings. 38 C.F.R. § 3.159(c)(4). Accordingly, service connection for a back disability and right lower extremity radiculopathy, to include the hip and ankle, for accrued benefits purposes is denied. Since the preponderance of the evidence is against the claims, there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. For these reasons, the claims are denied. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Appellant’s claims so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a left knee disability for accrued benefits purposes is remanded. See Argument Below 2. Entitlement to service connection for a right knee disability for accrued benefits purposes is remanded. See Argument Below 3. Entitlement to service connection for a left foot disability for accrued benefits purposes is remanded. See Argument Below 4. Entitlement to service connection for a right foot disability for accrued benefits purposes is remanded. The Appellant has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2018 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain VA medical opinions regarding the etiology of the Veteran’s bilateral knee disability and bilateral foot disability. Pursuant to the July 2018 remand instructions, VA medical opinions regarding the etiology of the Veteran’s bilateral knee disability and bilateral foot disability were obtained in May 2020. The July 2018 remand instructions directed the examiner to “identify any and all disabilities pertaining to the Veteran’s bilateral knees and feet throughout the appeal period.” The examiner failed to complete this directive. Furthermore, the Board notes that, as regards to the right knee, the December 1998 enlistment examination for the Veteran’s first period of honorable service shows that the Veteran’s right knee condition was not “noted” at service entry. However, an April 1999 service treatment record from the Veteran’s first period of honorable service shows that the examiner noted that the Veteran had injured his right knee 11 years prior. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. If this burden is met, then the veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness under 38 U.S.C. § 1111, the Veteran’s claim is one for service connection. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The May 2020 VA examiner opined that the Veteran’s right knee condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. In this case, the May 2020 examiner’s opinion is inadequate because it is not expressed pursuant to the applicable evidentiary standard (clear and unmistakable evidence that the Veteran’s right knee condition both preexisted service and was not aggravated during service). As such, another VA opinion is required. Accordingly, due to the deficiencies of the May 2020 VA opinions, and to ensure compliance with the directives of the July 2018 remand, new opinions should be obtained. See Stegall, 11 Vet. App. at 271. 5. Entitlement to service connection for an acquired psychiatric disorder for accrued benefits purposes is remanded. As the Appellant is asserting that the Veteran was entitled to service connection for an acquired psychiatric disorder as secondary to the disabilities on appeal, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. 6. Entitlement to a TDIU for accrued benefits purposes is remanded. As the Appellant is asserting that the Veteran was entitled to a TDIU, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris, 1 Vet. App. at 183. Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Forward the claims folder to an appropriate clinician for review and for addendum opinions addressing the nature and etiology of the Veteran’s bilateral knee disability and bilateral foot disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the addendum report should reflect that these items were reviewed. The examiner must state an opinion as to the following: (a) Identify any and all disabilities pertaining to the Veteran’s bilateral knees and feet throughout the period on appeal. (b) For each knee disability identified, is it at least as likely as not that the Veteran’s knee disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service for the period from March 1999 to May 1999? (c) Is there clear and unmistakable (i.e. obvious and manifest) evidence that any identified knee disability preexisted active duty service? If so, was the knee disability also clearly and unmistakably NOT aggravated by active duty service? Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. (d) For each identified foot disability (other than pes planus), is it at least as likely as not that the Veteran’s identified foot disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service for the period from March 1999 to May 1999? (e) With respect to pes planus of each foot, is it at least as likely as not that the disability underwent a permanent increase in severity as a result of the period of service from March 1999 to May 1999? A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (CONTINUED ON NEXT PAGE) 2. After completing all indicated development, the Appellant’s claims should be readjudicated based on the entirety of the evidence. If the benefits sought on appeal are not granted, the Appellant and her representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.