Citation Nr: 21007001 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-29 011 DATE: February 8, 2021 ORDER Entitlement to service connection for sciatica, including as due to service-connected right foot injury is denied. Entitlement to service connection for bilateral hip disability, including as due to service-connected right foot injury is denied. REMANDED Entitlement to a rating in excess of 10 percent for residuals of a right foot injury with an avulsion chip fracture of the cuboid bone is remanded. FINDINGS OF FACT 1. The Veteran’s sciatica is not secondary to service-connected right foot injury and is not otherwise related to an in-service injury or disease. 2. The Veteran’s bilateral hip disability is not secondary to service-connected right foot injury and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for sciatica due to service or service-connected right foot injury are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for bilateral hip disability due to service or service-connected right foot injury are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1978 to August 1983. These matters appear before the Board of Veterans’ Appeals (Board) on appeal of a June 2011 rating decision of the Regional Office (RO) in Newark, New Jersey. In April 2019, the Board remanded the Veteran’s claims to the Agency of Original Jurisdiction (AOJ) to obtain new VA examinations. VA requested new examinations in October 2019. In November 2019 and January 2020, new VA examinations and opinions were associated with the Veteran’s claim. The Board finds substantial compliance with the April 2019 VA remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). At the outset the Board would like to acknowledge the Board sent the Veteran a letter on September 29, 2020 asking the Veteran to clarify his representative. To date, the Board has not received a reply. In accordance with the letter, which reads in pertinent part “if we have not heard from you or your new representative within 30 days of the date of this letter, we will assume that you wish to represent yourself,” the Board is continuing to decide the Veteran’s claim without a representative. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Generally, 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a sciatic nerve disability, including as due to service-connected right foot injury The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement. The Veteran contends his sciatic nerve disability is related to his service-connected right foot disability. The evidence instead shows that the Veteran’s sciatic nerve disability is not caused by or aggravated by his service-connected right foot disability. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by service-connected disability. The Veteran was diagnosed with sciatica in December 2016. The Board concludes that, while the Veteran has a current disability sciatica, the preponderance of the evidence is against finding that the Veteran’s sciatica is proximately due to or the result of or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Veteran underwent VA examination in December 2013. The examiner diagnosed the Veteran with a lumbar strain and lumbar radiculopathy. The examiner concluded that the Veteran’s current lumbar conditions were not caused by his service-connected right foot. The examiner explained that the Veteran’s lumbar radiculopathy was a result of his lumbar strain which she attributed to his age and obesity. The examiner further explained that the Veteran’s service-connected right foot did not alter his gait to cause this condition. As pointed out in the Board’s October 2016 and April 2019 remands, the examiner’s opinion was not adequate because it failed to address aggravation. As such, the Veteran underwent VA examination again in November 2019. The November 2019 examiner opined that the Veteran’s sciatica was less likely than not caused by the Veteran’s service-connected right foot. The examiner explained that the claims file lacked objective evidence to support sciatica being caused by the Veteran’s service-connected right foot injury. Specifically, the examiner indicated the Veteran’s sciatica is not etiologically related to his service-connected foot injury. Furthermore, the examiner opined that it is less likely than not that the Veteran’s sciatica was aggravated beyond its natural progression by his service-connected right foot injury. The examiner explained that there is no subjective or objective evidence to support sciatica being aggravated by the Veteran’s service-connected right foot injury. The Veteran’s VA treatment records indicate sciatica is an active problem that the Veteran sought treatment for. However, no records include an opinion as to the etiology of the disability. Specifically, none of his VA treatment records indicate that his sciatica is caused by or aggravated by his service-connected right foot injury. The Veteran believes his sciatica is proximately due to a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examinations. Specifically, the combined the December 2013 and November 2019 VA examiners opinions are highly probative and fully adequate, as they are provided by medical professionals and address all theories of entitlement and include rationales consistent with the record. Accordingly, entitlement to service connection for a sciatic nerve disability, including as secondary to the Veteran’s service-connected right foot injury is not warranted. 2. Entitlement to service connection for bilateral hip disability, including as due to service-connected right foot injury The preponderance of the evidence is against granting the Veteran’s claim of entitlement to service connection for a bilateral hip disability. Essentially, the Veteran contends that his service-connected right foot disability caused his bilateral hip disability. The evidence instead shows that the Veteran’s bilateral hip disability is not caused by or aggravated by his service-connected right foot injury. As noted above, the Board’s adjudication will consider only entitlement to secondary service connection, and the question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by service-connected disability. The Veteran was diagnosed with bilateral osteoarthritis of his bilateral hips in December 2016. The Board concludes that, while the Veteran has a current disability of sciatica, the preponderance of the evidence is against finding that the Veteran’s sciatica is proximately due to or the result of or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In December 2013, the Veteran underwent VA examination for his bilateral hips. The examiner indicated the Veteran had a normal bilateral hip examination and no pain or functional loss was indicated upon physical examination. The examiner explained that the Veteran reported he had back pain and sciatica, but not hip pain. Accordingly, the examiner concluded that with lack of a diagnosis the Veteran’s bilateral hip complaints were not caused by his service-connected right foot injury. In November 2019, the Veteran underwent VA examination again. The examiner diagnosed the Veteran with bilateral hip osteoarthritis. The Veteran reported bilateral hip pain that worsened to include lower back pain and radiation of pain down the right leg with associated bilateral numbness and tingling. The examiner concluded that the Veteran’s service-connected right foot injury did not cause or aggravate his bilateral hip disability. The examiner explained that there is no evidence in the file to support the Veteran’s bilateral hip disability being caused by his service-connected right foot injury. Further, the examiner explained that the Veteran’s bilateral hip disability is not aggravated by his service-connected right foot injury because an acute fracture will not result in long-term chronic history of bilateral hip pain. The examiner explained that no medical literature would support that conclusion, especially because the Veteran’s right foot injury does not cause a Trendelenburg gait. While the Veteran is noted to have an antalgic gait in various VA records, this does not cause damage to an uninjured joint or limb. The Veteran’s VA treatment records indicate the Veteran has sought treatment for low back and hip pain. However, no treatment record or entry connects the Veteran’s pain with his service-connected right foot injury. Specifically, there is no indication that the Veteran’s service-connected right foot injury caused or aggravated the Veteran’s bilateral hip disability. As noted above, the Veteran does not have the requisite knowledge or skill to make nexus opinions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the November 2019 VA examiner. Accordingly, entitlement to service connection for bilateral hip disability, including as secondary to the Veteran’s service-connected right foot injury is not warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for residuals of a right foot injury with an avulsion chip fracture of the cuboid bone is remanded. The Veteran’s currently rated at 10 percent for residuals of a right foot injury with an avulsion chip fracture of the cuboid bone under 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5010, 5284. The Veteran’s last VA examination was in November 2019. The Veteran has since sought treatment, including a March 2020 emergency room visit, for worsening symptoms. Specifically, the Veteran reported worsened pain, swelling, and tenderness. Upon physical examination in the March 2020 emergency room note, the Veteran’s right foot was positive for hallux. In the November 2019 VA examination, the Veteran did not diagnose the Veteran with hallux valgus nor hallux rigidus. This treatment note indicates the Veteran’s condition may have worsened. Accordingly, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran’s right foot symptoms. (Continued on the next page)   The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of a right foot injury with an avulsion chip fracture of the cuboid bone. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, Associate 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.