Citation Nr: 21070699 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 15-15 811 DATE: November 24, 2021 ORDER Entitlement to service connection for a left shoulder condition, to include as secondary to service-connected epilepsy, is denied. Entitlement to service connection for a right shoulder condition, to include as secondary to service-connected epilepsy, is denied. REMANDED Entitlement to service connection for a back condition, to include as secondary to service-connected epilepsy, is denied. Entitlement to service connection for a neck condition, to include as secondary to service-connected epilepsy, is denied. Entitlement to a rating in excess of 10 percent for left foot hallux valgus with arthritis in the metatarsophalangeal (MTP) joint, beginning January 9, 2013, to include on an extraschedular basis, is remanded. Entitlement to a rating in excess of 10 percent for right foot hallux valgus with arthritis in the MTP joint, beginning January 9, 2013, to include on an extraschedular basis, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to January 7, 2016 is remanded. FINDING OF FACT The Veteran's bilateral shoulder condition was caused by the service-connected epilepsy. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder condition have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for entitlement to service connection for a right shoulder condition have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1984 to August 1986. In October 2017, the Veteran testified before the Board of Veterans' Appeals (Board) and the undersigned Veterans Law Judge. The Board most recently remanded the matters for further development in March 2021 In March 2021, the regional office was directed to attempt to obtain the Veteran's vocational rehabilitation file, if possible; and to document actions taken. Although the file was not located, a formal finding of unavailability was provided to the Veteran in June 2021. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternately, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Certain chronic diseases, including arthritis, may be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Entitlement to service connection for a bilateral shoulder condition The Veteran was afforded VA nexus opinions in April 2013 and July 2021. The April 2021 found the Veteran's bilateral shoulder condition was at least as likely due to the Veteran's epilepsy. In the rationale, the examiner stated, "epilepsy precludes an individual of developing falls" and "falls precludes injuries to the shoulder area as noted above." Although preclude means to prevent, the examiner appears to actually be arguing that epilepsy leads to falls and falls lead to shoulder conditions. If taken as worded, generally finding falls prevent shoulder injuries is counterintuitive. Affording the benefit of the doubt, the Board finds the examiner provided a positive opinion and rationale. In July 2021, the examiner provided a negative nexus opinion for the bilateral shoulder condition. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). The April 2013 VA examiner provided a positive nexus opinion. The July 2021 VA examiner provided a negative nexus opinion. The examiners reviewed the Veteran's claims file and provided rationales for the conclusions reached; therefore, the Board finds that they are entitled to equal weight of probative value. As such, the Board concludes the evidence regarding a nexus between bilateral shoulder condition and the Veteran's service-connected epilepsy are in relative equipoise. The benefit of the doubt is afforded to the Veteran; and accordingly, the Board finds that service connection for left and right shoulder conditions are established, and the claims are granted in full. REASONS FOR REMAND The Veteran was last afforded a VA examination to address the left and right foot disabilities in December 2018, and the examination is approximately 3 years old. Since the last examination, new VA medical evidence shows reconstructive foot surgery was requested in February 2020. Accordingly, a new VA examination is necessary to determine the current severity of the Veteran's bilateral foot disorder. In addition, the Veteran's medical records show evidence of diagnosed pes planus. See June 2014 VA treatment records; May 2016 VA treatment records; December 2019 private treatment records. Although 10 percent is the maximum schedular rating for hallux valgus, pes planus can lead to entitlement to a higher schedular rating. Therefore, a VA addendum opinion is necessary to determine whether pes planus has resolved, and to determine if the pes planus is caused or aggravated by the Veteran's hallux valgus. A new VA examination is also needed for the back and neck conditions. The aggravation language used in the July 2021 opinion is not legally adequate. The examiner found no evidence that the disorders had been "permanently aggravated," but permanent aggravation is not required in secondary service connection claims. See Ward v. Wilkie, 31 Vet. App. 233 (2019). As a decision on these matters could affect the TDIU claim, that claim is inextricably intertwined and must be remanded as well. The matters are REMANDED for the following action: 1. Afford the Veteran a VA medical examination with a qualified medical profession to address the current severity of the Veteran's foot conditions. The most current Disability Benefits Questionnaire must be employed, and all relevant findings indicated in that questionnaire must be addressed. The examiner is asked to identify all right and left foot conditions, to include pes planus demonstrated during the to the appeal period or in proximity to the claim (January 2012), even if currently resolved; and Provide an opinion as to whether pes planus at least as likely as not (at least an approximate balance of positive and negative evidence) is caused by or aggravated by service-connected hallux valgus. All opinions must be supported by a detailed rationale. 2. Furnish the claims file to the July 2021 VA examiner, or to another qualified medical professional, for an addendum opinion, based upon a claims file review, of whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's neck and back conditions were aggravated by his service-connected epilepsy. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.