Citation Nr: 21005833 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-17 231A DATE: February 2, 2021 ORDER New and material evidence having been presented, reopening of the claim for service connection for a lumbosacral strain condition is granted. New and material evidence having been presented, reopening of the claim for service connection for a right knee condition is granted. New and material evidence having been presented, reopening of the claim for service connection for a left knee condition is granted. Entitlement to service connection for a lumbosacral strain condition as secondary to service-connected residuals of bilateral foot frostbite is granted. Entitlement to service connection for a right knee condition as secondary to service-connected residuals of bilateral foot frostbite is granted. Entitlement to service connection for a left knee condition as secondary to service-connected residuals of bilateral foot frostbite is granted. FINDINGS OF FACT 1. The competent and probative evidence of record establishes that the Veteran’s lumbosacral strain condition is proximately due to or the result of her service-connected residuals of bilateral foot frostbite. 2. The competent and probative evidence of record establishes that the Veteran’s right knee condition is proximately due to or the result of her service-connected residuals of bilateral foot frostbite. 3. The competent and probative evidence of record establishes that the Veteran’s left knee condition is proximately due to or the result of her service-connected residuals of bilateral foot frostbite. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbosacral strain condition have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.3. 2. The criteria for entitlement to service connection for a right knee condition have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.3. 3. The criteria for entitlement to service connection for a left knee condition have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.3. Introduction The Veteran served honorably on active duty in the United States Army during the Peacetime, from July 1978 to August 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a live videoconference hearing held in January 2021. A transcript of that hearing will be associated with the claims file. Additionally, the Veteran previously submitted claims for the same issues involved herein, which were denied by Rating Decision dated July 2013 on the basis that the conditions were not related to military service. As the Veteran did not appeal or submit new and material evidence within the one-year appeal period, the July 2013 Rating Decision became final. 38 C.F.R. § 3.156(a), (b), (c). A May 2020 Supplemental Statement of the Case (SSOC) determined that new and material evidence had been submitted sufficient to warrant reopening; however, the Board must determine of its own accord whether new and material evidence is of record to reopen the claims before it may consider them on their merits. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a), see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board finds the evidence presented since the previously denied claims became final, which includes medical opinions and treatment records (discussed below), is new and relates to an unestablished fact necessary to substantiate the claims, specifically, causation. Finally, the Veteran contends that her lumbosacral strain and bilateral knee conditions are secondary to her service-connected residuals of bilateral foot frostbite. As such, the issues have been recharacterized as reflected above. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. §§ 1110; 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can be competent and sufficient to establish a diagnosis when a layperson is: (1) competent to identify the medical condition; (2) reporting a contemporaneous medical diagnosis; or, (3) describing symptoms at the time that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (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 to the Veteran. See Gilbert, 1 Vet. App. at 53. The Board has considered the entire record, but only evidence pertinent to the determination of service connection for the claimed conditions will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Entitlement to service connection for a lumbosacral strain condition as secondary to service-connected residuals of bilateral foot frostbite is granted. The Veteran seeks entitlement to service connection for a lumbosacral strain condition as secondary to her service-connected residuals of bilateral foot frostbite. Presently, the Veteran’s service-connected residuals of bilateral foot frostbite are each rated 30 percent disabling effective May 29, 2012. The Veteran has submitted numerous medical opinions from both VA and non-VA medical providers in this matter. In September 2017, nurse practitioner, Ms. N.L.S., of Evans Army Community Hospital completed a “Nexus Statement” form and authored a narrative opinion. According to Ms. N.L.S., she reviewed the Veteran’s service treatment records (STRs) and post-service treatment records and conducted an examination. Ms. N.L.S. noted “[t]he [Veteran] suffered frost bite in both feet while in the Army [and] now has Raynaud’s disease and is intolerant of cold.” Further, she reported that, “pain, numbness, and tingling in her feet has altered her walking gait,” and that, “[g]ait changes have increased her … pain in the back.” Ms. N.L.S. concluded that, “pain/numbness/tingling in feet … and back pain is most likely the results of events occurring while in the military.” A “Nexus Statement” form was completed by a physical therapist, Dr. S.M., in October 2017. She acknowledged reviewing the Veteran’s post-service treatment records and opined that the Veteran’s lumbosacral strain condition is “most likely caused by or a result of … repetitive lifting, frostbite to feet in military service.” According to Dr. S.M., “any injury to lower extremity (in her case her feet) will change the pattern up the chain and alter stresses again contributing to … back pain.” In November 2017, a podiatrist, Dr. J.M., completed a “Nexus Statement” form wherein he acknowledged reviewing the Veteran’s STRs and post-service treatment records and opined that the Veteran’s lumbosacral strain condition is “most likely caused by or a result of … cold weather injury in service.” According to Dr. J.M., the cold weather injury in service “contributed to altered gait [and] this could cause her disability.” Additionally, Dr. J.M. noted that service-connected residuals of bilateral foot frostbite “contributes to” her bilateral foot pain and numbness, and “leading to altered gait [and] resulted … back pain issues.” A “Nexus Statement” form was completed by another podiatrist, Dr. J.V.Y., in January 2018. Dr. J.V.Y. acknowledged reviewing the Veteran’s post-service treatment records and opined that the Veteran’s lumbosacral strain condition is “most likely caused by or a result of” her abnormal gait, which she opined is due to “the severe pain of [the Veteran’s] feet.” The Board assigns substantial probative weight to the competent opinions of the VA and non-VA medical providers discussed above. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinions appear to be based upon thorough examinations of the Veteran, consideration of her self-reports, a review of the claims file, the examiners’ expertise, and sound reasoning. Further, the opinions are consistent with the Veteran’s medical treatment records, such as a May 2018 VA physical therapy evaluation report noting low back pain that “started with foot injury – had frostbite … [c]hanged gait due to foot issues and that effected the back,” as well as, June 2018 and August 2018 VA treatment records noting antalgic gait. In October 2019, the Veteran underwent a VA examination regarding her claim. The VA examiner noted that, the “Veteran reports shortly after frostbit to both feet in 1980 she began to walk awkwardly changing her gait which started her back issues.” The Veteran’s diagnosis was reported as degenerative arthritis of the spine, and x-rays dated March 2018 revealed moderate disc space narrowing at L4-L5. According to the VA examiner, the Veteran’s thoracolumbar spine condition is “less likely than not … proximately due to or the result of the Veteran’s service connected [sic] condition.” Essentially, while the VA examiner did discuss, inter alia, an etiological relationship between lower extremity conditions and low back conditions, she noted there were “no records of abnormal gait due to residuals of frostbite” and no “indication of major displacement of the center of gravity of the body while walking.” In January 2020, the Veteran’s claim was reviewed by another VA examiner who opined that the Veteran’s “[k]nees and back conditions are separate from feet frost bite, not caused by it or aggravated by it.” By way of rationale, the VA examiner noted “[n]o treatment for any on going [sic] frost bite,” and “[n]o mention in the record his [sic] frostbite aggravated other conditions.” The VA examiner indicated that, “generally speaking frostbite will cause feet pain that lead to less activity, not damage.” The Board assigns little probative weight to the opinions of the VA examiners discussed above. See Nieves-Rodriguez, 22 Vet. App. at 304. First, neither VA examiner addressed the VA treatment records regarding altered gait and an etiological relationship between her bilateral foot conditions and low back condition(s). The VA examiner’s statement that there is “[n]o mention in the record his [sic] frostbite aggravated other conditions” is directly at odds with the above-noted medical treatment and opinion evidence. Also, neither VA examiner addressed the numerous VA and non-VA positive medical nexus opinions outlined above. Finally, the Board finds the VA examiners’ opinions conclusory in nature and lacking sufficient rationale as compared to those of the Veteran’s treating providers. Based upon the foregoing, the Board finds the preponderance of the competent and probative evidence of record establishes that the Veteran’s lumbosacral strain condition is proximately due to her service-connected residuals of bilateral foot frostbite. As such, the Veteran’s claim for entitlement to service connection for a lumbosacral strain condition is granted. Entitlement to service connection for a right knee condition as secondary to service-connected residuals of bilateral foot frostbite is granted. Entitlement to service connection for a left knee condition as secondary to service-connected residuals of bilateral foot frostbite is granted. The Veteran seeks entitlement to service connection for right and left knee disabilities as secondary to her service-connected residuals of bilateral foot frostbite. Presently, the Veteran’s service-connected residuals of bilateral foot frostbite are each rated 30 percent disabling effective May 29, 2012. As discussed above, the Veteran has submitted numerous medical opinions from both VA and non-VA medical providers in this matter. In September 2017, Ms. N.L.S. of Evans Army Community Hospital completed a “Nexus Statement” form and authored a narrative opinion. According to Ms. N.L.S., she reviewed the Veteran’s service treatment records (STRs) and post-service treatment records and conducted an examination. Ms. N.L.S. noted “[t]he [Veteran] suffered frost bite in both feet while in the Army [and] now has Raynaud’s disease and is intolerant of cold.” Further, she reported that, “pain, numbness, and tingling in her feet has altered her walking gait,” and that, “[g]ait changes have increased her bilateral knee pain.” Ms. N.L.S. concluded that, “pain/numbness/tingling in feet, [and] bilateral knee pain … is most likely the results of events occurring while in the military.” A “Nexus Statement” form was completed by Dr. S.M., in October 2017. She acknowledged reviewing the Veteran’s post-service treatment records and opined that the Veteran’s right and left knee conditions are “most likely caused by or a result of … repetitive lifting, frostbite to feet in military service.” According to Dr. S.M., “any injury to lower extremity (in her case her feet) will change the pattern up the chain and alter stresses again contributing to knee … pain.” In November 2017, Dr. J.M., completed a “Nexus Statement” form wherein he acknowledged reviewing the Veteran’s STRs and post-service treatment records and opined that the Veteran’s right and left knee conditions are “most likely caused by or a result of … cold weather injury in service.” According to Dr. J.M., the cold weather injury in service “contributed to altered gait [and] this could cause her disability.” Additionally, Dr. J.M. noted that service-connected residuals of bilateral foot frostbite “contributes to” her bilateral foot pain and numbness, and “leading to altered gait [and] resulted knee … pain issues.” A “Nexus Statement” form was completed by another podiatrist, Dr. J.V.Y., in January 2018. Dr. J.V.Y. acknowledged reviewing the Veteran’s post-service treatment records and opined that the Veteran’s right and left knee conditions are “most likely caused by or a result of” her abnormal gait, which she opined is due to “the severe pain of [the Veteran’s] feet.” The Board assigns substantial probative weight to the competent opinions of the VA and non-VA medical providers discussed above. See Nieves-Rodriguez, 22 Vet. App. at 304. The opinions appear to be based upon thorough examinations of the Veteran, consideration of her self-reports, a review of the claims file, the examiners’ expertise, and sound reasoning. In October 2019, the Veteran underwent a VA examination regarding her claims. The VA examiner noted that, the “Veteran reports shortly after frostbit to both feet in 1980 she began to walk awkwardly changing her gait which started her knee issues.” The Veteran’s diagnosis was reported as bilateral patellofemoral pain syndrome. According to the VA examiner, the Veteran’s right and left knee disabilities are “less likely than not … proximately due to or the result of the Veteran’s service connected [sic] condition.” Essentially, she noted there were “no records of abnormal gait due to residuals of frostbite” and no “indication of major displacement of the center of gravity of the body while walking.” In January 2020, the Veteran’s claims were reviewed by another VA examiner who opined that the Veteran’s “[k]nees and back conditions are separate from feet frost bite, not caused by it or aggravated by it.” By way of rationale, the VA examiner noted “[n]o treatment for any on going [sic] frost bite,” and “[n]o mention in the record his [sic] frostbite aggravated other conditions.” The VA examiner indicated that, “generally speaking frostbite will cause feet pain that lead to less activity, not damage.” The Board assigns little probative weight to the opinions of the VA examiners discussed above. See Nieves-Rodriguez, 22 Vet. App. at 304. First, neither VA examiner addressed the VA treatment records regarding altered gait. The VA examiner’s statement that there is “[n]o mention in the record his [sic] frostbite aggravated other conditions” is directly at odds with the above-noted medical opinion evidence. Also, neither VA examiner addressed the numerous VA and non-VA positive medical nexus opinions outlined above. Finally, the Board finds the VA examiners’ opinions conclusory in nature and lacking sufficient rationale as compared to those of the Veteran’s treating providers. Based upon the foregoing, the Board finds the preponderance of the competent and probative evidence of record establishes that the Veteran’s right and left knee disabilities are proximately due to her service-connected residuals of bilateral foot frostbite. As such, the Veteran’s claims for entitlement to service connection for right and left knee disabilities is granted. (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.