Citation Nr: 21074442 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-22 507 DATE: December 15, 2021 ORDER Entitlement to service connection for a cervical spine disorder is denied. Entitlement to service connection for a bilateral foot disorder is denied. REMANDED Entitlement to service connection for a thoracolumbar spine disorder is remanded. Entitlement to service connection for vertigo, including as secondary to service-connected bilateral hearing loss and tinnitus, is remanded. Entitlement to service connection for a left upper extremity dysesthesia, including as secondary to a cervical spine disorder, is remanded. FINDINGS OF FACT 1. The Veteran's degenerative arthritis and degenerative disc disease of the cervical spine did not manifest during service, or within one year of separation; degenerative arthritis and degenerative disc disease of the cervical spine is not attributable to service. 2. The Veteran's plantar fasciitis did not manifest during service and is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for a bilateral foot disorder have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from March 1995 to September 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In February 2021, the Board remanded this appeal for further development. A supplemental statement of the case was most recently issued in February 2021. The Board finds that there was substantial compliance with its remand orders with regard to the Veteran's claims of entitlement to service connection for a bilateral foot disorder and a cervical spine disorder; the remaining claims are addressed in the remand section, below. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran 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 servicethe so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a bilateral foot disorder. The Veteran contends that his cervical spine degenerative arthritis and degenerative disc disease and plantar fasciitis of the feet are related to his active military service. As an initial matter, the Board notes that the Veteran has current diagnoses of cervical spine degenerative arthritis and degenerative disc disease and plantar fasciitis of the feet. See September 2021 VA examinations. Thus, the first element of service connection is met. With regard to an inservice event, injury or disease, a review of the Veteran's available service treatment records does not reflect complaints, treatment, or diagnoses related to the Veteran's neck or feet. However, at his November 2020 virtual Board hearing before the undersigned VLJ, he testified that his neck pain and foot problems began in service due to the physical requirement of heavy lifting in his security forces position. As the described symptoms are capable of lay report and observation, the Board finds that an inservice event or injury, the second element of service connection has been established. Turning to a nexus, the Board notes that the evidence fails to establish a nexus between his current diagnoses and his active service. In this regard, the Board notes that there was no diagnoses of cervical spine degenerative arthritis and degenerative disc disease and plantar fasciitis of the feet within one year of separation, so a nexus cannot be presumed for this condition. None of the Veteran's post-service treatment records reflect complaints, treatment, or diagnoses related to his cervical spine prior to October 2013. Likewise, the Veteran was first treated for his plantar fasciitis in May 2016. The Board acknowledges that the Veteran reported a history of pain in the 5th digit of his right foot since 2003 and a history of foot and ankle pain when establishing care at VA in October 2010, but points out that examination at that time was normal; the Board also notes that the Veteran did not make any complaints with regard to his left foot until 2018. Regarding the Veteran's neck, the Veteran has offered conflicting reports as to onset; VA treatment records reflect that he reported that he hurt it when he fell off of a Humvee, and that he denied experiencing a trauma such as a fall with regard to his neck, and as noted, he testified that his neck pain is due to lifting heavy objects related to his duties in service. The Board observes that in establishing care at VA in October 2010, the Veteran did not report any complaints related to his neck. As to a nexus, after examining the Veteran, September 2015 and September 2021 VA examiners concluded that the Veteran's cervical spine degenerative arthritis and degenerative disc disease and plantar fasciitis of the feet are not related to the Veteran's service. According to the VA medical opinions, the Veteran's cervical spine degenerative arthritis and degenerative disc disease and plantar fasciitis of the feet are not likely to be related to his service given the absence of any related complaints or treatment for many years after service. The September 2021 VA examiner also noted that, even if the Veteran's assertions as to pain and injury related to lifting heavy objects in service are true, given the absence of complaints during service and at separation, the length of time between the Veteran's reported in-service injuries and his first post-service complaints, treatment, and/or diagnoses, indicates that the Veteran's cervical spine degenerative arthritis and degenerative disc disease and plantar fasciitis of the feet are unrelated to service. The September 2021 VA examiner pointed out that the lack of related symptoms in service is consistent with post-service onset and a lack of relationship between the Veteran's service and his cervical spine degenerative arthritis and degenerative disc disease and plantar fasciitis of the feet. The September 2021 VA examiner acknowledged that, even if the Veteran had symptomatology after service, given that the Veteran's separation examination was silent for related complaints and the Veteran did not require treatment for many years following service, it is not likely that alleged injuries in service were severe enough to indicate that his current disabilities are related to service; the VA examiner stated that the Veteran's assertions as to foot and neck pain during service suggested acute overuse injuries and not chronic disabilities. The Board finds that the most probative evidence fails to establish a nexus between the Veteran's his cervical spine degenerative arthritis and degenerative disc disease and plantar fasciitis of the feet and his active service. The Board finds the VA opinions to be the most probative evidence as to nexus. The opinions are based on the record, an accurate medical history, which does not contain evidence of continuing symptoms or treatment since service to diagnoses, and provide an adequate rationale to support the findings. The Board has considered the Veteran's statements regarding nexus. However, the Veteran's statements are insufficient to establish that the Veteran's cervical spine degenerative arthritis and degenerative disc disease and plantar fasciitis of the feet are related to his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to report observable symptoms such as pain, but he is not competent to determine the cause of his disabilities. Such determinations require more than mere observation of symptoms, but medical training and knowledge which the Veteran does not have. Further, the Veteran is not competent to diagnose his cervical spine degenerative arthritis and degenerative disc disease and plantar fasciitis of the feet. These disabilities require medical testing and training to diagnose. Thus, his lay assertions of diagnoses and nexus are not competent evidence as to the claims. As a result, the most probative evidence is against finding a nexus between the Veteran's service and his current cervical spine degenerative arthritis and degenerative disc disease and plantar fasciitis of the feet. Given that the preponderance of the evidence is against the claims, the claims are denied. (continued on next page) REASONS FOR REMAND 1. Entitlement to service connection for a thoracolumbar spine disorder is remanded. 2. Entitlement to service connection for vertigo, including as secondary to service-connected bilateral hearing loss and tinnitus, is remanded. 3. Entitlement to service connection for a left upper extremity dysesthesia, including as secondary to a cervical spine disorder is remanded. As noted earlier, in February 2021, the Board remanded the Veteran's claims for additional development, including obtaining VA examinations and additional treatment records. The Board observes that additional relevant medical evidence, to include the requested VA examination reports and treatment records, was received and uploaded into the Veteran's claims file in response to the Board's remand. However, the AOJ did not address this evidence or otherwise readjudicate the Veteran's claims of entitlement to service connection for a thoracolumbar spine disorder, vertigo, or left upper extremity dysesthesia in the October 2021 supplemental statement of the case, as directed by the Board in the February 2021 remand. Therefore, in order to ensure compliance with the directive in the February 2021 Board remand, the Veteran's claims must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). See also 38 C.F.R. § 19.31(b) (the agency of original jurisdiction is to issue a supplemental statement of the case when additional pertinent evidence is received after a statement of the case has been issued). The matters are REMANDED for the following action: The AOJ must readjudicate the remaining claims on appeal, in light of all of the evidence of record, and if any of the claims remain denied, the Veteran must be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The case should be returned to the Board after compliance with requisite appellate procedures. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.