Citation Nr: 21014551 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-10 826 DATE: March 15, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. REMANDED Entitlement to service connection for a bilateral foot disorder is remanded FINDINGS OF FACT The preponderance of the evidence is against finding that the Veteran’s diagnosed lumbar spine disorders were not incurred during active service, not caused by active service, not caused or aggravated by a service-connected disability, and did not manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to June 1982. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 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, 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). Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may also 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 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; 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 claimant Entitlement to service connection for a lumbar spine disorder The Veteran contends he is entitled to service connection for a lumbar spine disorder due to his active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records are silent for a lumbar spine disorder. In February 1979, the Veteran reported a fall on New Year’s Day. The Veteran reported pain in his cervical spine (C7). An x-ray report from February 1979 showed straightening of the cervical spine, and the intervertebral disc spaces were found to be well-preserved. No lumbar spine complaints were found. The Veteran was put on a physical profile in February 1977 for a calcaneal spine. However, the calcaneal is a bone in the foot and will be addressed below. The Veteran was afforded a VA examination for his thoracolumbar spine in July 2013. The examiner noted minor thoracic spondylosis and thoracolumbar spine arthritis. The examiner found the Veteran’s lumbar spine disorder did not have any functional impact on his ability to work. The examiner opined that the claimed lumbar spine disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In November 2018, the Board remanded this case for a new examination due to the failure of the examiner to review the lay statements of record and the failure to address the Veteran’s February 1977 service treatment records regarding a physical profile for a calcaneal spine. The Veteran submitted private medical records for his claim. At a July 2014 appointment, the Veteran reported chronic lower back pain. The Veteran’s history included weight gain. In April 2019, the Veteran was found to have low back pain and denied physical therapy. X-ray findings from April 2019 showed mild dextroscoliosis at the dorsal lumbar junction, multilevel degenerative joint disease with disc narrowing, minimal spurring and degenerative joint disease in the facets. No acute bone abnormality was found. As a result of the November 2018 remand, the Veteran was afforded a VA examination for his thoracolumbar spine in July 2020. The examiner also produced addendum opinions in September and October 2020. In the September 2020 addendum opinion, the examiner confirmed the diagnosis for minor thoracic spondylosis and thoracolumbar spine arthritis. The Veteran reported that his symptoms began in the late 1970s and attributed his low back pain due to wear and tear working on airplanes in the military. The examiner ultimately opined that the claimed lumbar spine disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reviewed the lay statements and found that the statements did not indicate a clear diagnosis. The examiner also stated that that no clear injury was noted in the military records that would cause thoracic spondylosis and thoracolumbar spine arthritis over 30 years later. The examiner explained that thoracic spondylosis and thoracolumbar spine arthritis are more likely than not age-related and less likely than not due to service. In regard to the in-service diagnosis of calcaneal spine, the examiner found that it likely occurred in service, as the symptoms were severe enough to confer him a profile. However, the examiner stated that the diagnosis was considered mild and not severe enough to cause current back conditions. The Board notes the Veteran’s lay testimony of record that he injured his lumbar spine while on active service. While he is competent to report having experienced symptoms since service, he does not have the training or credentials to provide a competent opinion as to a diagnosis or etiology in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board concludes that, while the Veteran has a current diagnosis of minor thoracic spondylosis and thoracolumbar spine arthritis, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of thoracic spondylosis and arthritis began during service or is otherwise related to an in-service injury, event, or disease. Additionally, the medical evidence does not show he was diagnosed with a lumbar spine disorder by June 1983, one year from separation from active duty. There is no doubt to be resolved; therefore, the claims of entitlement to service connection for a lumbar spine disorder must be denied. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for a bilateral foot disorder The Veteran’s original service connection claim was for a bilateral foot disorder. In an August 2020 rating decision, the Veteran was granted service connection for a right foot disability. The RO subsequently issued the October 2020 Supplemental Statement of the Case (SSOC) returning the issue of entitlement to service connection for a left foot disorder. The Veteran was afforded a VA examination in July 2020 for his feet. The examiner found a right capsulitis of the fourth and fifth metatarsal of the right foot. The Veteran reported foot pain since his time on active service. The examiner noted that the Veteran was seen by a podiatrist in the 1990s. The Veteran attributed his foot pain to the use of steel-toed boots being narrow in the toes. The examiner found no significant pain of the left foot on the day of the examination and no functional loss in either extremity. The examiner also found no functional loss during flare ups of either foot. The Veteran was found to not have a condition that impacted his ability to perform any occupational task. The examiner opined that there was no diagnosis related to the left foot. However, in January 1977, the Veteran had complaints of bilateral foot pain. An x-ray report from January 1977 revealed that the bone and soft tissue structure were normal in both feet. The Veteran’s records also reveal complaints of foot problems in February 1977, and he was referred for a podiatry consult. In February 1977, the Veteran was put on a physical profile with a diagnosis of a calcaneal spine. The Veteran was restricted to no prolonged walking or standing. Records from March 1978 show the Veteran had complaints of pain in the balls and heels of both feet. The Veteran was using pads for his feet but was still having pain. The Veteran also complained of foot pain in April 1978. However, no diagnosis was listed. In May 1978, the Veteran was put on a physical profile with a diagnosis of chronic pedialgia due to a fallen longitudinal arch of both feet. In September 1978, the Veteran was noted to have pain in both balls of his feet and was diagnosed with plantar fasciitis. The Veteran was restricted to no prolonged walking, no marching, and no running. At a podiatry visit in July 1978, the Veteran was found to have bilateral foot pain. The physician’s impression was plantar fascitis and sesamoiditis. The Veteran also submitted private medical records. In a March 2016 note, the Veteran was found to have symptoms of plantar fasciitis in his feet. The veteran also reported achy feet in his July 2020 VA examination. Although the Veteran has many documented interactions with health care providers regarding his feet in his records, the July 2020 examiner failed to address any of the prior diagnoses of his feet. In addition, no x-rays were reviewed or ordered for the examination. The Board finds the July 2020 examination inadequate for the failure to address any service treatment records and post-service treatment records. While the Board greatly regrets further delay, a remand is required for a new examination to address the nature and etiology of the Veteran's bilateral foot disorders. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claim, to include any private treatment records, following proper VA procedures under 38 C.F.R. § 3.159(c). 2. After completing the requested development, schedule the Veteran for a VA foot examination to determine the nature and etiology of his claimed bilateral foot disabilities, to include, but not limited to, pes planus, sesamoiditis, plantar fasciitis, calcaneal spine, and arthritis. The claims folder, including this remand, prior examinations, and lay statements, must be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner should obtain a complete, pertinent history from the Veteran. a.) For each assessed disability of the feet, the examiner should render an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability was caused by or incurred in active service. The examiner should provide the Veteran with an opportunity to offer a history of his foot disabilities, including the circumstances of any lay-observed injury or manifestations, and the examiner's attention is directed to the Veteran's reported history of foot symptoms in service and thereafter. b.) If no diagnosis is rendered for the feet, the examiner should explain this in the context of the historical record (described above) and also indicate whether there is foot pain that constitutes a functional impairment of earning capacity. All opinions must be supported by a rationale that is consistent with the opinions presented. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.