Citation Nr: 21070611 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-02 835 DATE: November 24, 2021 ORDER Entitlement to service connection for a thoracolumbar spine disability is granted. Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for bilateral knee disabilities is granted. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder is granted. REMANDED Entitlement to service connection for radiculopathy of the bilateral upper extremities is remanded. Entitlement to service connection for radiculopathy of the bilateral lower extremities is remanded. FINDINGS OF FACT 1. The probative evidence of record is in equipoise as to whether the Veteran's thoracolumbar spine disability was caused or aggravated by his service-connected bilateral pes cavus. 2. The probative evidence of record is in equipoise as to whether the Veteran's cervical spine disability was caused or aggravated by his service-connected bilateral pes cavus. 3. The probative evidence of record is in equipoise as to whether the Veteran's bilateral knee disabilities were caused or aggravated by his service-connected bilateral pes cavus. 4. The probative evidence of record is in equipoise as to whether the Veteran's acquired psychiatric disorder was caused or aggravated by his service-connected bilateral pes cavus. CONCLUSIONS OF LAW 1. The criteria for service connection for a thoracolumbar spine disability as secondary to service-connected bilateral pes cavus are met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2021). 2. The criteria for service connection for a cervical spine disability as secondary to service-connected bilateral pes cavus are met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2021). 3. The criteria for service connection for bilateral knee disabilities as secondary to service-connected bilateral pes cavus are met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2021). 4. The criteria for service connection for an acquired psychiatric disorder as secondary to service-connected bilateral pes cavus are met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1974 to August 1974. The Board denied the Veteran's appeal in April 2018. He appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 memorandum decision, the Court vacated the Board's April 2018 decision and remanded the matter to the Board for readjudication. The Veteran's claim was subsequently returned to the Board in November 2019 but was again remanded for additional development. The Board required that the Agency of Original Jurisdiction (AOJ) for additional VA medical opinions regarding whether the Veteran's claimed disabilities were caused or aggravated by his service-connected bilateral feet disabilities. The required medical opinions were obtained and associated with the claims file in August 2021. The VA medical opinions are adequate because they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the opinions were accompanied by rationales. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. SECONDARY SERVICE CONNECTION Service connection may be established on a secondary basis 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). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Entitlement to service connection for a thoracolumbar spine disability, as secondary to service-connected bilateral pes cavus 2. Entitlement to service connection for a cervical spine disability, as secondary to service-connected bilateral pes cavus 3. Entitlement to service connection for bilateral knee disabilities, as secondary to service-connected bilateral pes cavus The Veteran's disabilities have been established through various VA treatment records and examinations. The Veteran has diagnoses of degenerative disc disease of the thoracolumbar spine, degenerative arthritis of the thoracolumbar spine, cervical spine osteoarthritis, degenerative changes of the bilateral knees, and degenerative bilateral knee meniscectomies. The Veteran does not contend that these disabilities were incurred during or caused by his period of active service, rather the Veteran contends that the disabilities were caused or aggravated by his service-connected bilateral pes cavus. In January 2011, the Veteran submitted a medical opinion from his private physician stating it was at least as likely as not that the Veteran's service-connected bilateral pes cavus caused or aggravated his back, neck, and bilateral knee disabilities. The opinion noted that the Veteran's service-connected bilateral pes cavus more likely than not caused or aggravated his neck, back, and bilateral knee disabilities. The opinions stated: The Veteran started to have feet problems while at service due to his arch problem. He started presenting strong feet pain and swelling immediately [after] he started his training[,] and he was place[d] on permanent profile. That problem caused him to develop weight bearing problems causing bad posture loss of correct alignment and loss of curvature of cervical, thoracic and lumbar lordosis, putting more stress in one side of vertebras than the other and by consequence patient could present disc bulging and herniation with degenerative problems. As a consequence[,] his neck and back are affected and secondary to these problems degenerative changes could be present in other articulations as his knees. This also brings problems of radiculopathy and neuropathy. The Board finds that the January 2011 opinion is thorough, well-reasoned, and is of considerable probative value in favor of the Veteran's claim for service connection. Conversely, following in-person examinations and review of the Veteran's claims file, an August 2021 medical opinion noted it was less likely than not that the Veteran's back, neck, knee disabilities were caused or aggravated by his service-connected bilateral feet disabilities. The medical opinion stated: The claimed conditions of [b]ilateral [k]nee [d]egenerative [c]hanges, [b]ilateral [k]nee [m]eniscectomies, [c]ervical [s]pine [o]steoarthritis, [d]egenerative [a]rthritis of the back, [d]egenerative [d]isc [d]isease of the back, and [l]umbar [s]pondylosis are less likely than not (less than 50% probability) proximately due to or the result of the [V]eteran's [b]ilateral [c]ongenital [p]es [c]avus... In this veteran the severity of a previously diagnosed condition such as pes cavus did not reach a level of progression to produce bilateral knee disability, neck disability and back disability and these are not related or the result of the veteran's bilateral foot disability. Due to the condition of [p]es [c]avus, this Veteran complains of pain in both feet. The effect of Pes Cavus translates to pain and hypersensitivity in this particular case in the head of the metatarsus of both feet, however, there is no presence of plantar fasciitis and there is no deformity in the dorsiflexion in both feet...There is no plantar hyperkeratosis nor claw toes are observed. As these would be expected in cases where the Pes Cavus causes knee or spine conditions, it is less likely than not that the Veteran's [b]ilateral [k]nee [d]egenerative [c]hanges, [b]ilateral [k]nee [m]eniscectomies, [c]ervical [s]pine [o]steoarthritis, [d]egenerative [a]rthritis of the back, [d]egenerative [d]isc [d]isease of the back, and [l]umbar [s]pondylosis are proximately due to or the result of the [b]ilateral [c]ongenital [p]es cavus. Regarding aggravation of current disabilities by his service-connected bilateral feet disabilities, the medical opinion stated: In this [V]eteran the severity of a previously diagnosed condition such as pes cavus did not reach a level of progression to aggravate a bilateral knee disability, neck disability, and back disability and these are not related to or aggravated by the [V]eteran's bilateral foot disability... I validate[d] the complaint sustained by the [V]eteran for a pre-existing congenital condition in both feet, which symptoms were aggravated during his military life. Notwithstanding, this is not enough to sustain an aggravation such that will cause or aggravate beyond its natural progression a bilateral degeneration or cause degenerative bilateral knee conditions with the consequence of meniscectomy, as well as osteoarthritis in the cervical spine, nor lumbosacral degenerative changes, degenerative disc changes, lumbar spondylosis, nor psychiatric disability. The military medical record of this Veteran does not support congruence of events such as those mentioned related to his congenital [p]es [c]avus condition of both feet. The Board finds that the August 2021 medical opinion is thorough, well-reasoned, and is of considerable probative value against the Veteran's claim for service connection. Based on the medical evidence discussed above, the Board that the medical evidence regarding entitlement to service connection on a secondary basis is in equipoise. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to secondary service connection for a thoracolumbar spine disability, neck disability, and bilateral knee disabilities is warranted on a causation basis. 38 C.F.R. § 3.310(a). 4. Entitlement to service connection for an acquired psychiatric disorder, as secondary to service-connected pes planus. The Veteran has a current diagnosis of unspecified depressive disorder, confirmed in an August 2020 VA Mental Disorders examination. The examination included a review of the Veteran's medical treatment records and video telehealth examination with the Veteran. The Veteran does not contend that his that his unspecified depressive disorder was incurred during or caused by his period of active service. Rather, the Veteran contends that his unspecified depressive disorder was caused or aggravated by his service-connected bilateral feet disorder. In January 2011, the Veteran submitted a medical opinion from his private physician stating it was at least as likely as not that the Veteran's service-connected bilateral pes cavus caused or aggravated his back, neck, and bilateral knee disabilities. The opinion noted that the Veteran's service-connected bilateral pes cavus more likely than not caused or aggravated his neck, back, and bilateral knee disabilities. The opinions stated: As a consequence [of the Veteran's service-connected bilateral pes cavus], he presents decrease[d] interest and pleasure in most activities. He also presents frustration, anxiety and irritability. He presents emotional changes primarily depressed mood and vegetative changes, consisting in alteration in sleep, appetite, and energy levels. He presents fatigue or low energy nearly every day. He has episodes where he feels sad and has isolated himself. He has frequent crying spells and sensation of worthlessness. Conversely, following completion of the August 2020 Mental Disorders examination, the VA examiner opined it was less likely than not that the Veteran's unspecified depressive disorder was caused or aggravated by his service-connected bilateral pes cavus. The August 2020 opinion stated: The Veteran's unspecified depressive disorder is not due, secondary, incurred, or associated in any way to [the Veteran's service-connected bilateral pes cavus. The Veteran sought psychiatric care around 2013, almost 39 years after the foot disability. There is no relation between service-connected result of bilateral foot disability, and the mental condition diagnosed around 2013. The above-mentioned conditions in terms of etiology or pathophysiology are not related one with the other. It is determined that the Veteran's unspecified depressive disorder, and the service-connected result of bilateral foot disability are in different time frames, different etiology, different pathophysiology, and different anatomical system, [there is] no relation one with the other. As a matter of fact, the Veteran identified his wife's social security accusations as the main stressors for the genesis of [the] mental disorder. The Board finds that the August 2020 opinion is thorough, well-reasoned, and is of considerable probative value against the Veteran's claim for service connection. Based on the medical evidence discussed above, the Board that the medical evidence regarding entitlement to service connection on a secondary basis is in equipoise. As noted above, the Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Gilbert, 1 Vet. App. 49. Accordingly, entitlement to secondary service connection an acquired psychiatric disorder, to include unspecified depressive disorder is warranted. REASONS FOR REMAND 1. Entitlement to service connection for radiculopathy of the bilateral upper extremities 2. Entitlement to service connection for radiculopathy of the bilateral lower extremities The Veteran claims entitlement to service connection for radiculopathy of the bilateral upper and lower extremities, as secondary to service-connected bilateral pes cavus. A January 2011 medical opinion noted that the Veteran has a current diagnosis of lumbar radiculopathy. The medical opinion also stated that the Veteran's claimed disabilities often result in radiculopathy and neuropathy. However, in subsequent VA Neck and Back Conditions examinations, the Veteran was not diagnosed with radiculopathy. At present, the Veteran has not completed a VA Peripheral Nerve Conditions examination to determine if he has a current diagnosis of radiculopathy in the upper or lower extremities, and if so, the etiology of that radiculopathy. The Board notes that as a result of this decision the Veteran has now also received service connection for a back and neck disability, either of which may cause or worsen radiculopathy of the upper and lower extremities. Accordingly, the Board finds it is necessary for the Veteran to complete a VA Peripheral Nerves examination in order to comprehensively evaluate his claim for service connection. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his claimed radiculopathy of the bilateral upper and lower extremities disability. The examiner must provide an opinion as to: a. Whether the Veteran has a current diagnosis of radiculopathy of the upper extremities. b. If the Veteran has a current diagnosis of radiculopathy of the upper extremities, is the Veteran's radiculopathy of the upper extremities at least as likely as not proximately caused by to any service-connected disability, to include bilateral pes cavus, a back disability, a neck disability, and bilateral knee disability. c. If the Veteran does have a current diagnosis of radiculopathy of the upper extremities, is the Veteran's radiculopathy of the upper extremities at least as likely as not aggravated beyond its natural progression by any service-connected disability, to include bilateral pes cavus, a back disability, a neck disability, and bilateral knee disability. d. Whether the Veteran has a current diagnosis of radiculopathy of the lower extremities. e. If the Veteran does have a current diagnosis of radiculopathy of the lower extremities, is the Veteran's radiculopathy of the lower extremities at least as likely as not proximately caused by any service-connected disability, to include bilateral pes cavus, a back disability, a neck disability, and bilateral knee disability. f. If the Veteran has a current diagnosis of radiculopathy of the lower extremities, is the Veteran's radiculopathy of the lower extremities at least as likely as not aggravated beyond its natural progression by any service-connected disability, to include bilateral pes cavus, a back disability, a neck disability, and bilateral knee disability. 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. (Continued on the next page) 2. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.