Citation Nr: 21009108 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 16-57 368 DATE: February 19, 2021 ORDER Service connection for a low back condition, to include as secondary to service-connected residuals of bilateral stress fracture calcaneus, is granted. Service connection for a right hip condition, to include as secondary to service-connected residuals of bilateral stress fracture calcaneus, is granted. Service connection for a left hip condition, to include as secondary to service-connected residuals of bilateral stress fracture calcaneus, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s low back condition is due to his service-connected residuals of bilateral stress fracture calcaneus. 2. The Veteran’s right hip condition is due to his service-connected residuals of bilateral stress fracture calcaneus. 3. The Veteran’s left hip condition is due to his service-connected residuals of bilateral stress fracture calcaneus. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition, secondary to service-connected bilateral stress fracture calcaneus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a left hip condition, secondary to service-connected bilateral stress fracture calcaneus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a right hip condition, secondary to service-connected bilateral stress fracture calcaneus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1966 to September1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In his November 2016 substantive appeal, the appellant requested a Board hearing. However, in a June 2019 statement, he indicated that he did not want a Board hearing. Accordingly, the Board deems his request for a hearing withdrawn. The appeal was last remanded by the Board in December 2019 for further development. The appeal has since returned to the Board before the undersigned. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.902 (c). Service Connection Service connection generally requires (1) 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) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for a low back condition, to include as secondary to service-connected residuals of bilateral stress fracture calcaneus, is granted. 2. Service connection for a right hip condition, to include as secondary to service-connected residuals of bilateral stress fracture calcaneus, is granted. 3. Service connection for a left hip condition, to include as secondary to service-connected residuals of bilateral stress fracture calcaneus, is granted. The Veteran contends that in service, he fell out of a low-hovering helicopter and injured his heel bones, which in turn affected his low back and both hips. See May 2015 Notice of Disagreement. Specifically, he contends that due to his foot injuries, he has been forced to walk on the outsides of his feet, which has caused pain and arthritis in his back and hips due to an altered gait. See June 2019 Veteran’s Correspondence. The Veteran through his representative asserts that the evaluation provided by Dr. RP establishes that the Veteran’s back and bilateral hip disabilities are directly related to the Veteran’s current service-connected bilateral calcaneus fractures. See Memorandum in Support of Spine Condition, Bilateral Hip Condition and TDIU dated November 2020. The Veteran is currently service connected for residuals of right and left stress fracture calcaneus. The Veteran’s service treatment records contain a treatment record dated November 1966 which documents a diagnosis of a stress fracture of the right and left heel bones. The record also notes that the Veteran was assigned duty limitations as a result of this injury to include no running for two weeks. See STR- Medical Received August 2014. The Veteran’s VA treatment records show that the Veteran has complained of back and hip pain since at least 2005. The Board notes that the Veteran was scheduled to attend VA examinations for his low back and bilateral hip disabilities; however, due to an issue with identifying an accurate address for the Veteran it is not clear whether or not the Veteran received correspondence regarding scheduling these examinations. See Request for Physical Examination dated February 2020. Notwithstanding this, the Board finds that the examinations of record which are discussed in detail below, provide sufficient information to decide the Veteran’s claims without any prejudice to the Veteran. The Veteran was afforded a VA examination for his foot conditions in October 2014 and during the examination it was noted that the Veteran reported that his heel pain has affected his hips and low back, which have progressively worsened over time. The examiner recorded the Veteran’s medical history in the examination report. The examiner stated that the Veteran reported that during basic training, he was coming out of a helicopter with a 70 pound pack, and as he was going to jump, the huey was starting to lift off, and the sergeant behind him told him to jump and he jumped approximately 15 feet and hit a rock which resulted in fractures to his bilateral heels. It was also noted that the Veteran reported that he was treated with long leg casts for approximately four months. Additionally, it was noted that after the casts came off, he was given special shoes. The Veteran reported that his hips and back were thrown off due to being on the casts for the four months, which is why they gave him special shoes after they took the casts off. Moreover, the Veteran reported that his hips and low back have progressively worsened over time. The Veteran also reported that after his heel fractures healed, he continued to have pain to bilateral plantar heel pain, which he continues to have currently. He reported that he learned to not walk on his heels because of the pain and further indicated that he walks with a cane due to feet, hips, low back issues. The reports, findings, and opinions of this examination were used in connection with granting the Veteran service connection for service-connected residuals, bilateral stress fracture calcaneus. A medical opinion dated November 2020 was provided by Dr. RP in connection with the Veteran’s low back and bilateral hip disability claims. Dr. RP noted that he conducted an extensive review of the Veteran’s VA File and all medical records available prior to rendering medical opinions on these matters. Dr. RP’s report included a detailed review of the Veteran’s medical history. Dr. RP stated that while in service the Veteran suffered bilateral calcaneus fractures that have been accepted as service connected. Dr. RP also stated that the Veteran was injured during basic training as he was coming out of a helicopter with a 70 pound pack. Additionally, it is noted that the Veteran was getting ready to jump out of the helicopter but it started to lift off, so he jumped and fell about 15 feet. The examiner noted that the Veteran fractured both of his heels as a result of this fall. Furthermore, the examiner stated that the Veteran’s service treatment records show that he experienced pain and swelling in both heels to include pain in his Achilles tendons and pain in his legs for at least eight months. It was also noted that the Veteran’s fall had a serious impact on his entire body, considering that the fall broke both of his heels. The examiner opined that the Veteran’s hips and back conditions are secondarily related to his bilateral calcaneus fractures as a result of an altered gait and /or the traumatic fall while in service. The examiner set forth specific details in the Veteran’s treatment records regarding the Veteran’s back and hip disabilities. The examiner stated that it is his opinion that the Veteran’s calcaneus fractures caused him to walk with an altered gait. The examiner stated that the service related fall caused the Veteran’s fractures in his feet which contributed to the altered gait, which put undue stress on the Veteran’s back, knees and hips. The examiner cited to a medical articled titled “Foot and ankle injuries are a Common Cause of antalgic gait” to support his medical conclusions. The examiner also cited to a peer review article which details how a free fall injury can result in low back pain. The examiner noted that there is significant association between oscalcis and thoracolumbar fractures. The examiner noted that the Veteran has walked with an altered gait as a result of his service-connected heel conditions. The examiner also noted that the Veteran’s back and hips have objective testing in the records that show extensive degenerative arthritis. The examiner further noted that the Veteran has gained a lot of weight in part because of his inability to exercise. The examiner concluded that it is at least as likely as not that the bilateral hip pain is secondarily related to his bilateral calcaneus fractures and his altered gait. The examiner also opined that it is as likely as not that the chronic back pain is directly related to the Veteran’s fall from the helicopter and is secondarily related to his bilateral calcaneus fractures and altered gait. Moreover, the examiner opined that it is as likely as not that the Veteran’s obesity which began in in service contributed to degenerative arthritis in the back and hips. See Medical Treatment Record Non-Government Received November 2020. The Board finds that the preponderance of the evidence of record demonstrates that the Veteran’s low back disability and bilateral hip disabilities are secondary to his service-connected bilateral calcaneus fractures disabilities. The Board finds that the October 2014 examiner thoroughly considered the Veteran’s reported medical history and made an informed decision finding that the Veteran’s bilateral calcaneus fractures disabilities were as likely as not related to service. In this opinion, the examiner acknowledged the Veteran’s reports that after his heel fractures healed, he continued to have pain to bilateral plantar heel pain, which he continues to have currently. The October 2014 examiner also acknowledged that the Veteran reported that he learned to not walk on his heels because of the pain and further indicated that the Veteran walks with a cane due to feet, hips, and low back issues. The Board finds these reports and findings persuasive and sufficient to establish a nexus between the Veteran’s low back and bilateral hip disabilities and service-connected bilateral calcaneus fractures. The Board assigns significant probative weight to this opinion. Additionally, the Board assigns significant probative weight to the November 2020 opinion provided by Dr. RP. Dr. RP accurately and thoroughly assessed the Veteran’s medical history, considered the Veteran’s report of symptoms and onset of the claimed disorders before rendering the medical opinion. Dr. RP also supported his findings and analysis with specific citations to medical articles and to specific medical reports in the record. Factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). These medical opinions are based on sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. RP has the skill and expertise to analyze the medical evidence and render an opinion as to the etiology of the Veteran’s claimed disorders. See Black v. Brown, 10 Vet. App. 279, 284 (1997). Dr. RP’s medical report along with the treatment records, and Veteran’s statements collectively establish a nexus between the Veteran’s claimed disabilities and his service-connected bilateral calcaneus fractures disabilities. Both the October 2014 and November 2020 examiners thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board recognizes that the November 2020 opinion is the only opinion of record that clearly articulated a medical nexus but no additional opinion or evidence is required given the substantial medical evidence and detail used by the November 2020 examiner to support his opinions. The Board has considered the lay statements of the Veteran and the incident of jumping from the helicopter which led to his injuries, and the Board finds them credible and consistent with the medical evidence of record and the events reported by the Veteran of ongoing manifestations and symptoms of his service connected bilateral calcaneus fractures disabilities. The Board notes that the Veteran’s service treatment records do not document the actual helicopter incident; however, the Board has no reason to doubt the Veteran’s account of the incidents that have led to his low back, and bilateral hip disabilities, particularly since the October 2014 VA examiner found the Veteran’s reports to be credible to support service connection for the Veteran’s bilateral calcaneus fracture disabilities. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The lay observations and symptoms that were reported were all consistent with the clinical evidence or record and the findings of the medical examiners and as such, these statements are probative. Furthermore, the Veteran’s service treatment records explicitly document the in-service diagnosis of stress fractures of both heel bones and the medical evidence of record supports that the Veteran’s low back and bilateral hip disabilities are attributed to this injury. Upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran’s favor, the Veteran’s claims of service connection for a low back disability, service connection for a right hip disability, and service connection for a left hip disability are hereby granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran through his representative has requested that the Board grant TDIU based on his service-connected disabilities. See Memorandum in Support of Spine Condition, Bilateral Hip Condition and TDIU. The Board finds that because a decision on the disability evaluation assignments of the issues above could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Moreover, remand is required for development of this issue. TDIU has reasonably been raised by the Veteran’s representative. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (providing that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability). The RO has not developed a claim of entitlement to a TDIU, therefore, a remand of the claim for TDIU is required. On remand, such development should be completed. This matter is REMANDED for the following action: (Continued on the next page)   Adjudicate the Veteran’s claim for entitlement to TDIU under the provisions of 38 C.F.R. § 4.16 and Rice v. Shinseki, 22 Vet. App. 447 (2009). Provide the Veteran the appropriate notification and request he complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.