Citation Nr: 21012525 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-23 327 DATE: March 4, 2021 ORDER Entitlement to service connection for a bilateral foot disorder is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a bilateral leg disorder, to include sciatica and peripheral neuropathy is remanded. FINDING OF FACT The Veteran does not have a bilateral foot disorder that is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral foot disorder have not been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to April 1971 to include service in the Republic of Vietnam. In a June 2015 substantive appeal, the Veteran requested a Board hearing and was scheduled to appear for that hearing in November 2018. Subsequently, in an October 2018 Report of General Information, the Veteran cancelled his hearing request. Thus, his Board hearing request is considered withdrawn. 38 C.F.R. § 20.704(e). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court redefined the concept of what issues are encompassed in a service connection "claim" filed by a claimant. In Clemons, the Court held that the scope of a claim must be understood from the viewpoint of a lay claimant who may not be required to understand sophisticated legal or medical distinctions, and that "the claimant's intent in filing a claim is paramount to construing its breadth." With regard to the claim for service connection for a bilateral leg disorder, the evidence shows the Veteran has been diagnosed with peripheral neuropathy of the bilateral lower extremities. Pursuant to Clemons, the Board has therefore expanded the service connection claim for a bilateral leg disorder as stated on the cover page of this decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In February 2019, the Board remanded the issues for VA opinions that addressed all of the Veteran’s contentions. 1. Entitlement to service connection for a bilateral foot disorder The Veteran asserts he has a bilateral foot disorder that is related to his military service. Specifically, he reports that he has numbness and tingling in his feet. A review of the Veteran’s service treatment records (STRs) show that on his March 1968 and March 1971 Report of Medical History forms the Veteran reported foot trouble; however, his 1968 entrance and 1971 separation examinations indicate his feet were normal. Additionally, there is no evidence of treatment for or a diagnosis of a bilateral foot disorder in service. VA treatment records show that the Veteran has complained of pain and numbness in his feet that he reports began in 2000. An August 2012 VA foot examination reflects a diagnosis of degenerative joint disease, found incidentally on x-ray which mild degenerative changes. The Veteran reported that he began to have bilateral leg “sciatica” shooting pain and numbness, tingling, and burning pain in his feet in 2000. After physical examination the examiner noted the Veteran’s foot examination to be unremarkable bilaterally. The examiner did not provide an adequate opinion on whether the Veteran has a diagnosed foot disability that is etiologically related to his military service. A December 2019 VA foot examination shows the Veteran reported his current symptoms as numbness and aching in his feet. The date of onset was unclear but was described as a gradual increase. The examiner stated the Veteran does not have a diagnosed foot disorder, but in the section for pes planus stated the Veteran had bilateral pain on use that was accentuated on use. Ultimately, the examiner stated the Veteran’s bilateral foot numbness is a symptom addressed by his diagnosed peripheral neuropathy and lumbar radiculopathy. The examiner opined the Veteran’s claimed foot disorder was less likely than not incurred in or caused by service. The rationale provided was that there is no evidence of an in-service event, illness, or injury that is related to the Veteran’s current complaints of foot pain. Based on the competent medical evidence above, the Board finds that the Veteran does not have a current bilateral foot disorder that is etiologically related to his military service. The Veteran separated from active duty in 1971 and by his own reports has consistently stated that his foot problems began in 2000, nearly 30 years after he left active duty. Additionally, the December 2019 VA examiner has attributed the Veteran’s bilateral foot symptoms to his bilateral lower leg peripheral neuropathy, which is addressed in the remand portion of this decision. The Board has considered the Veteran’s contention that he has a current bilateral foot disorder that warrants service connection; however, the medical evidence does not show that the Veteran has a current bilateral foot disability that had its onset in service or is otherwise related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and etiology of a foot disability falls outside the realm of common knowledge of a lay person. The Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on a complex medical question. Accordingly, the preponderance of the evidence is against the claim for service connection for a bilateral foot disorder. The benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. at 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. The Veteran contends that he has a current low back disability that is etiologically related to his military service. Specifically, the Veteran asserts that his military occupational specialty (MOS) job duties as a lineman included climbing 30-40 foot poles while wearing heavy equipment such as a heavy toolbelt, ropes, and climbing gaffs, causing pressure on his lower back and lower body. Additionally, the Veteran reports he was involved in three jeep accidents in Vietnam, one of which he states he was pinned under the jeep. Based on the February 2019 Board remand, the issue was remanded for a VA opinion on etiology that included a discussion of the Veteran’s lay reports of being in three jeep accidents and his MOS as a lineman, as reported in an October 2015 Veteran statement. A December 2019 VA back examination reflects diagnoses of degenerative arthritis, IVDS, vertebral fracture, degenerative joint disease, and lumbar bilateral radiculopathy. The examiner opined it is less likely than not that the lumbar compression fracture was incurred in or caused by the claimed in-service injury, event, or illness. The only rationale for the opinion was that there was no evidence of treatment, in-service injury, or diagnosis in the Veteran’s STRs. While noting the three jeep accidents reported by the Veteran, the examiner again simply stated they were not documented in the service treatment records (STRs). The Board finds the December 2019 VA opinion to be inadequate as it is based solely on a lack of back treatment, complaints, or findings in the service treatment records (STRs) as the basis of the negative opinion. Furthermore, the Veteran has submitted statements regarding the rigors of his MOS and the in-service jeep accidents, which the examiner was instructed to discuss in the opinion and rationale. The absence of treatment records cannot be the sole basis for the denial of a service connection claim. See Dalton v. Peake, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination)). As it is still unclear whether the Veteran’s low back disorder is etiologically related to his military service, to include the job duties as a lineman and the Veteran’s lay reports of the jeep accidents, the Board finds a remand is necessary for an opinion on etiology. 2. Entitlement to service connection for a bilateral leg disorder, to include sciatica and peripheral neuropathy is remanded. The Veteran contends that he has a current bilateral leg disorder, to include sciatica and peripheral neuropathy that is etiologically related to his military service. Specifically, the Veteran asserts that his military occupational specialty (MOS) job duties as a lineman included climbing 30-40 foot poles while wearing heavy equipment such as a heavy toolbelt, ropes, and climbing gaffs, causing pressure on his lower back and lower body. Additionally, the Veteran reports he was involved in three jeep accidents in Vietnam, one of which he states he was pinned under the jeep. Based on the February 2019 Board remand, the issue was remanded for a VA opinion on etiology that included a discussion of the Veteran’s lay reports of being in three jeep accidents and his MOS as a lineman, as reported in an October 2015 Veteran statement. A review of the claims file shows that the Veteran has a diagnosis of lumbar radiculopathy involving the sciatic nerve bilaterally. The December 2019 VA examiner noted the lumbar radiculopathy and opined it was less likely than not the Veteran’s lumbar radiculopathy was incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that there is no record of the reported jeep accidents and no in-service complaints or evaluation of sciatica. The examiner stated that the Veteran may have injured his lower back in service but there is no mention of radicular symptoms during service. The Board finds the December 2019 VA opinion to be inadequate as it is based solely on a lack of sciatica treatment, complaints, or findings in the service treatment records (STRs) as the basis of the negative opinion. Furthermore, as noted above, the Veteran has submitted statements regarding the rigors of his MOS and the in-service jeep accidents, which the examiner was instructed to discuss in the opinion and rationale. The absence of treatment records cannot be the sole basis for the denial of a service connection claim. See Dalton v. Peake, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination)). Additionally, the Veteran’s bilateral lower extremity radicular symptoms have been diagnosed as lumbar radiculopathy and bilateral lower extremity peripheral neuropathy related to the Veteran’s low back diagnoses. As the Veteran’s low back disorder is being remanded for an etiology opinion, the issue of a bilateral leg disorder, to include sciatica and peripheral neuropathy is intertwined with the low back disorder and as such must be remanded as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for the appropriate VA examinations to address the etiology of the claimed disorders. The examiner must provide a rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinions: a) Whether it is as least as likely as not (50% probability or greater) the Veteran’s low back disorder was incurred in service. The examiner must discuss the lay report of the Veteran’s Jeep accidents and MOS as a lineman and the impact, if any, on the Veteran’s low back disorder. b) Whether it is as least as likely as not (50% probability or greater) that the Veteran’s bilateral leg disorder and sciatica is caused by or related to his low back disorder. c) If the Veteran’s bilateral leg disorder and sciatica is not related to his low back disorder, is it as least as likely as not (50% probability or greater) that the Veteran’s bilateral leg disorder and sciatica was incurred in service. The examiner must discuss the lay report of the Veteran’s Jeep accidents and MOS as a lineman. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.