Citation Nr: 21002340 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-41 591 DATE: January 13, 2021 ORDER Service connection for a right foot disability is granted. REMANDED Service connection for a neck disability is remanded. Service connection for a back disability is remanded. FINDING OF FACT It is as likely as not that the Veteran’s current right foot disability is related to his in-service parachute jumps. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for entitlement to service connection for a right foot disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1963 to March 1965. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a February 2017 Department of Veterans Affairs (VA) Regional Office (RO). The rating decision, inter alia, reopened and denied claims of service connection for a back condition and a neck injury, and denied the claim of service connection for a right foot condition. The Veteran’s Notice of Disagreement (NOD) was received in May 2017. The Statement of the Case was issued in May 2017 and the Veteran’s VA Form 9, substantive appeal to the Board was received in October 2017. In November 2019, the Veteran appeared before the undersigned Veterans Law Judge (VLJ) at a Board hearing. The transcript is of record. In January 2020, the Board reopened the previously denied claims of service connection for a low back disability and a neck disability, and, remanded all three claims for further development and adjudication. Service Connection 1. Entitlement to service connection for a right foot disability. The Veteran seeks service connection for a right foot disability. During the November 2019 Board hearing, the Veteran testified that while completing a parachute jump, he rolled his ankle, was given a gel cast, and returned to complete the remainder of his jumps in order to finish his training. He testified that he experienced right foot pain which was not treated in sick call and that the pain got worse after discharge. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1111, 1131, 1137 (2012); 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110 (2012); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Then, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. A September 1963 treatment note within the Veteran’s STRs indicates that he was seen for posterior heel and achilles tendon pain. The Veteran was diagnosed with achilles bursitis. The note does not indicate whether this was the Veteran’s left or right foot. The Veteran’s January 1965 separation examination report indicates that the Veteran reported being in good health and indicated “no” when asked if he has foot trouble. The January 1965 separation examination report also indicates that the Veteran’s feet were normal upon examination. A September 2005 VA treatment note indicates that the Veteran was seen for right ankle pain which has lasted for two months. The Veteran reported twisting his ankle inward while walking and feeling a pop. He also reported pain and swelling, and slowly getting better. He was diagnosed with a right ankle sprain. A January 2006 VA treatment note indicates that the Veteran’s right ankle pain resolved. An August 2006 VA treatment note indicates that the Veteran was seen for follow up and reported history of ankle fracture while paratrooping in the military. It was noted that x-rays were consistent with old healing fracture and that the Veteran had probable post traumatic DJD. However, there were no x-ray reports associated with this treatment note and no dates for when these x-rays were completed. Moreover, a November 2006 VA treatment note indicates that the Veteran was ordered to undergo x-rays for his right foot, and none were completed yet. A subsequent November 2006 VA treatment note indicates that the Veteran was seen for follow up and x-rays were reviewed. It was noted that the Veteran injured his right ankle one year ago after stepping off the curb and twisting it. The Veteran reported a history of achilles injury that was treated with a gel case. On examination, the Veteran did not have swelling but had some joint tenderness of the right ankle. The treatment note indicates that the Veteran was diagnosed with mild DJD with possible osteochondritis dissecans lesion pressing on the fibula. An April 2007 VA treatment note indicates that the Veteran has had chronic right ankle pain varying with activity since his injury 16 months ago. It was noted that x-rays showed periosteal thickening indicating prior tibial or fibular syndesmosis injury and that an MRI showed scarring of the lateral ligaments with increased signal in subchondral bone of tibia. The Veteran was diagnosed with old syndesmosis injury of the right ankle with lateral ligaments sprain. He was recommended ankle support and strengthening exercises. A September 2007 VA treatment note indicates that the Veteran has right lateral ankle pain and a history of fracture while paratrooping in the military. The Veteran’s VA treatment records indicate that he continued to experience right ankle pain for which he received treatment. A February 2016 private treatment note from Dr. A.B. indicates that the Veteran presented with right foot pain, which he experienced with ambulation and shoe gear, with onset several months ago. It was noted that symptoms improved with rest and worsened with tight shoes, weight bearing, walking, standing, and direct pressure. Upon examination, the Veteran had pain on the right foot. He was noted to have a bilateral foot deformity and increased medical arches. X-rays indicated no fracture and increased medical arches. X-rays also revealed exostosis of the lateral sesamoid of the right foot. The Veteran was diagnosed with exostosis, sesamoiditis, acute foot pain, and pes cavus. It was noted that the Veteran will undergo an excision of the lateral sesamoid of the right foot. An April 2016 private pathology report by Dr. B.A. indicates that the Veteran had a benign sesamoid bone with moderate degenerative change (osteoarthritis). An April 2016 private operative report by Dr. B.A. indicates that the veteran underwent a sesamoidectomy of the lateral sesamoid of the right foot. An April 2016 private treatment note by Dr. B.A. indicates that the Veteran was seen for follow up and dressing change. Under active problems, it was noted that the Veteran had acute right foot pain, exostosis, low back pain, neck pain, pes cavus, and sesamoiditis. The Veteran was ordered follow up and physical therapy. A July 2018 VA treatment note indicates that the Veteran has a history of Patellar femoral syndrome and was seen for an evaluation for continuing right knee and ankle pain. An MRI of the right knee was completed, and the impressions indicated edema in the lateral navicular of uncertain etiology as well as chronic complete longitudinal split tear of the peroneus brevis tendon. There was no evidence of significant osteoarthritis. In July 2020, the Veteran underwent a VA examination for his claim. The Veteran was diagnosed with right foot hallux valgus and right foot degenerative arthritis. The VA examiner summarized the evidence in this case, including the Veteran’s STRs, his post-service x-rays, and other treatment records. The VA examiner did not address the Veteran’s VA treatment records indicating an old ankle injury. The Veteran reported that he fell off a 6-foot tower in jump school and landed in a pit. He reported his foot and ankle rolling. The Veteran reported being given a jello cast and returning to work ot finish jump school. It was noted that the Veteran’s disability remained the same and that he currently has chronic right lower extremity radiating pain from his back and burning pain from the ball of the ankle forward and back. The Veteran’s hallux valgus was noted to be on the right and have mild or moderate symptoms. The Veteran was noted to occasionally use a right foot brace for right foot arthritis. The VA examiner cited a July 2020 right foot x-rays and indicated that there were no acute abnormalities. It was noted that the x-rays revealed mild chronic degenerative changes, minimal osteophytic spurring to the right first metatarsophalangeal joint, no acute bony erosion, no significant hallux valgus deformity, and no fracture, erosion, or dislocation. There was also minimal calcaneal spurring. The VA examiner concluded that it is less likely as not that the Veteran’s right foot disability is related to his service, including parachute jumping. For rationale, the VA examiner indicated that while the Veteran had recorded parachute jumps in service, his STRs do not contain any records of right foot disability and his separation examination stated that his physical examination was normal and he did not have foot trouble. The VA examiner also indicated that the earliest the Veteran’s records showed complaints of foot pain was in 2015, which is 50 years after service. The VA examiner further noted that any muscle injury or trauma associated with parachute activity will demonstrate a significant amount of pain close to the date and time of the parachute jump. The VA examiner indicated that the Veteran’s post service occupations included lineman, cashier, manufacturing, and recently, marketing for hospitals, at which he is mostly on his feet. The VA examiner also concluded that the overall medical records in this case showed that the Veteran’s right foot disability is separate, independent, and unrelated to his parachute jumps in service, and that his right foot arthritis is physiologic condition related to his age and post service occupation. Additionally, the VA examiner concluded that the Veteran’s right foot arthritis less likely than not had its onset during active service, manifested within one year after discharge, or was noted during service with continuity of the same symptomatology since service. The VA examiner indicated that there was no right foot trauma or injury noted during service and that there is no documentation showing that the disability manifested within one year of service. Based on the review of the entire record, the evidence is at least in relative equipoise as to whether the Veteran’s current right foot disability is related to his in-service parachute jumps. With reasonable doubt being resolved in the Veteran’s favor, service connection is warranted. The Veteran’s VA treatment records indicate that in 2005 he was treated for a right ankle sprain and continued to experience pain. During that time, the Veteran reported in-service injuries associated with parachute jumps. An April 2007 VA ankle evaluation indicates that an X-ray showed evidence of a prior injury. At this point the Veteran was diagnosed with an old syndesmosis injury of the right ankle. A subsequent September 2007 VA treatment note indicates that the Veteran has a history of ankle fracture with paratrooping in the military and continues to experience right ankle pain. Thus, there is objective medical evidence that the Veteran sustained a previous right foot injury which is consistent with his reports of injuring his ankle while paratrooping. By contrast, the July 2020 VA medical opinion indicates that the Veteran’s current right foot disability is a separate disability, that there is no evidence of treatment for a right foot disability during service, and that the Veteran’s current right foot disability is not related to service. The July 2020 VA medical opinion is not afforded probative value in this case. While the VA July 2020 VA examiner summarized the Veteran’s medical history, there was no mention of the April 2007 VA imaging reports and subsequent September 2007 medical diagnosis regarding the Veteran’s previous old ankle injury. Additionally, the July 2020 VA medical opinion did not address the September 1963 notation within the Veteran’s STRs indicating that he was seen for heel pain or the Veteran’s competent and consistent reports that he suffered a right foot injury. Thus, the evidence is at least in relative equipoise as to whether the Veteran’s current right foot disability is related to his in-service parachute jumps. While the Veteran does not possess the medical expertise to provide a nexus opinion in this case, the 2007 VA treatment records provide objective medical evidence of an old injury, and therefore corroborate his contentions and note that there is a history of fracture consistent with parachute jumping. Moreover, the July 2020 VA medical opinion did not address the Veteran’s contentions or the VA treatment records containing imaging evidence of an old injury along with an indication that the injury is consistent with parachute jumps. Accordingly, the Veteran has a diagnosed disability, there is evidence that the Veteran sustained injuries in service as a result of his parachute jumps, and there is evidence suggesting that his current disability is related to the injuries he sustained as a result of his parachute jumps. While the Veteran’s VA treatment records is the only medical evidence of record illustrating the nexus element of service connection, these records clearly establish that the Veteran’s current right foot symptoms cannot be distinguished from his parachute jumps. Therefore, service connection is granted. REASONS FOR REMAND 2. Entitlement to service connection for a neck disability is remanded. 3. Entitlement to service connection for a back disability is remanded. The Veteran seeks service connection for a neck disability and a back disability, asserting that his current disabilities are a result of his in-service parachute jumps. Specifically, the Veteran contends that he injured his neck and back completing parachute jumps in service, did not report the injuries due to the fear of not completing his training, and continued to have neck and back pain since service. Additionally, the Veteran contends that he has a history of traumatic brain injuries (TBIs) from in-service parachute jumps, and that this is further evidence that he sustained injuries from his in-service jumps. In July 2020 and September 2020, the RO obtained addendum medical opinions pursuant to the January 2019 Board remand directives. With respect to the neck disability, the July 2020 examiner noted an August 2010 VA treatment note indicating a history of neck pain since 1995 but opined that the Veteran’s medical records showed earliest complaints of neck pain in 2008. The September 2020 VA examiner noted the Veteran’s cervical degenerative condition was first recorded in a 2010 MRI. With respect to the back disability, the July 2020 VA examiner noted the Veteran’s reports of three back surgeries in 1970’s, a 1993 spinal cord stimulator, and a December 2013 private rehabilitation consultation noting a 30-year history of back pain. The July 2020 VA examiner then concluded that the earliest complaints of back pain were in 2010, 45 years after service. Moreover, the September 2020 VA examiner noted an April 2000 Addendum Note indicating that the Veteran presented with a long history of lower back problems and surgeries dating back to 1973 and 1974, followed by an extensive history of back surgeries, and concluded that the Veteran’s lumbar degenerative condition was first recorded in 2013. Thus, the July 2020 and September 2020 VA addendum opinions are internally inconsistent and cannot be afforded probative value. In essence, each VA opinion acknowledges evidence of much earlier complaints of neck and back problems without providing a rationale for why this evidence was not considered in the conclusions that the Veteran’s neck pain had its onset in 2008 and the Veteran’s back pain had its onset in 2010. Moreover, the opinions do not provide any rationale for why the Veteran’s reports of observable symptoms and medical history were not considered in formulating these opinions. When VA undertakes to obtain an examination, it must ensure that the examination and opinion therein is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213, 216 (1992). In this case, the July 2020 and September 2020 VA medical opinions are internally inconsistent, lack complete rationale, and cannot be afforded probative value. Accordingly, the matters are remanded for further development and adjudication. Specifically, the RO should obtain addendum medical opinions with respect to etiology and nexus of the Veteran’s neck and back disabilities. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion as to the nature and etiology of the Veteran’s neck disability. The claims file and a copy of this remand must be made available and be reviewed by the examiner. The VA examiner must opine as to the following: (a.) Whether it is at least as likely as not that the Veteran’s current neck disability is related to an in-service injury, event, or disease, including in-service parachute jumping. (b.) If arthritis is shown, whether it at least as likely as not (1) began during active service, (2) manifested to a compensable degree within one year of discharge from service, or (3) was noted during service with continuity of symptomatology during service. (c.) In providing this opinion, the VA examiner must address the Veteran’s contentions that his neck pain had its onset in service, as well as all records noting a history of neck problems, including the August 2010 VA treatment note indicating reports of neck pain dating back to 1995. (d.) The VA examiner is advised that the Veteran is competent to report his symptoms and history, and such reports and history must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (e.) The VA examiner is required to provide a full rationale for all conclusions reached. 2. Obtain an addendum medical opinion as to the nature and etiology of the Veteran’s back disability. The claims file and a copy of this remand must be made available to and be reviewed by the examiner. The VA examiner must opine on the following: (a.) Whether it is at least as likely as not that the Veteran’s current back disability is related to an in-service injury, event, or disease, including in-service parachute jumping. (b.) If arthritis is shown, whether it at least as likely as not (1) began during active service, (2) manifested to a compensable degree within one year of discharge from service, or (3) was noted during service with continuity of symptomatology during service. (c.) In providing this opinion, the VA examiner must address the Veteran’s contention that he underwent three back surgeries in the 1970’s, as well as all available records noting a history of back problems. (d.) The VA examiner is advised that the Veteran is competent to report his symptoms and history, and such reports and history must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (e.) The VA examiner is required to provide a full rationale for all conclusions reached. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.