Citation Nr: 21023515 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-04 282 DATE: April 20, 2021 ORDER Service connection for a right knee disorder, to include degenerative joint disease and strain as secondary to service-connected residuals of a right foot injury is granted. Service connection for a right hip disorder, to include degenerative joint disease, trochanteric bursitis and strain as secondary to service-connected residuals of a right foot injury is granted. Service connection for a lumbar spine disorder, to include degenerative joint disease, osteoarthritis and lumbosacral strain as secondary to service-connected residuals of a right foot injury is granted. Service connection for a bilateral eye disorder, to include pterygium and allergic conjunctivitis, to include as secondary to service-connected residuals of a fractured nasal cartilage is denied. An increased 30 percent rating from November 25, 2009 and continuing thereafter for residuals of a right foot injury is granted. REMANDED The issue of service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and unspecified depressive disorder is remanded. The issue of a total disability rating based on individual unemployability (TDIU) due to service-connected disorders is remanded. FINDINGS OF FACT 1. With resolution of the doubt in his favor, the Veteran’s right knee disorder was caused by his service-connected right foot disorder. 2. With resolution of the doubt in his favor, the Veteran’s right hip disorder was caused by his service-connected right foot disorder. 3. With resolution of the doubt in his favor, the Veteran’s lumbar spine disorder was caused by his service-connected right foot disorder. 4. The Veteran did not undergo an in-service event, injury or disease as to his bilateral eye disorder. 5. The Veteran’s bilateral eye disorder was not caused or aggravated by his service-connected residuals of a fractured nasal cartilage. 6. With resolution of the doubt in his favor, for the entirety of the rating period on appeal, the severity of the Veteran’s right foot disorder manifested as severe. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right knee disorder have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. 2. The criteria to establish service connection for a right hip disorder have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. 3. The criteria to establish service connection for a lumbar spine disorder have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. 4. The criteria to establish service connection for a bilateral eye disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. 5. The criteria to establish an increased 30 percent rating for the entirety of the rating period on appeal for the Veteran’s right foot disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.6, 4.7, 4.71a, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from October 1976 to October 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated March 2010, March 2015 and September 2015 of the St. Petersburg, Florida Regional Office (RO). In September 2017, the Board denied the claim of service connection for a bilateral eye disorder. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans’ Claims (Court). In a January 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the Board decision and remanded the Veteran’s appeal to the Board. In September 2020, the Board remanded the appeals to the RO for additional action. Except as to the claim of service connection for a psychiatric disorder, there was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a 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 shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Right knee disorder, right hip disorder and lumbar spine disorder The Veteran asserts that his right knee, right hip and lumbar spine disorder were caused by service, or alternatively, as secondary to his service-connected right foot disorder. The claims will be granted as to secondary service connection. Service treatment records (STRs) are silent for complaints or contemporaneous reports concerning the Veteran’s right knee, right hip and lumbar spine. In service medical history reports dated November 1976, January 1987, August 1988 and August 1990, the Veteran answered “no” to the question of whether he then had, or once had a trick knee, locked knee, arthritis, rheumatism, bursitis, bone deformity, joint deformity, other deformity, or recurrent back pain. In service medical examination reports dated November 1976, October 1980, January 1987, August 1988 and August 1990, no lower extremity or spine abnormalities were noted. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision). In his August 2017 substantive appeal, the Veteran asserted having been treated for his right knee, right hip and lumbar spine during service. Contrary to the Veteran’s assertion, the highly probative STRs are silent for complaints or contemporaneous reports concerning the Veteran’s right knee, right hip and lumbar spine; the Veteran denied experiencing symptoms pertaining to his right knee, right hip and lumbar spine in his service medical history reports and no abnormalities were noted pertaining to the Veteran’s disorders in his service medical examination reports. AZ v. Shinseki, 731 F. 3d 1303, 1315 (Fed. Cir. 2013) (finding that the absence of an entry in a record may be considered evidence that a fact did not occur if the fact would have been recorded if present); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in the STRs can constitute “contradictory” evidence weighing against the credibility of a claimant’s testimony if the STRs are complete “in relevant part,” and there is competent evidence that the claimed “injury, disease, or related symptoms would ordinarily have been recorded had they occurred”). Therefore, a preponderance of the evidence is against a finding that the Veteran underwent an in-service event, injury or disease as to his right knee, right hip and lumbar spine. In a February 2002 VA treatment record, a review of systems revealed arthritis-pain in the Veteran’s back. VA treatment records dated October 2006 and April 2007 reflect the Veteran’s report of experiencing right knee aching. In a January 2010 VA examination that did not focus on the Veteran’s right knee, right hip or lumbar spine, the Veteran reported experiencing right knee, right hip and back pain from lifting equipment and supplies. The May 2015 non-VA examiner diagnosed the Veteran with right knee degenerative joint disease, right hip degenerative joint disease, trochanteric bursitis, lumbar spine degenerative joint disease and osteoarthritis. The examiner opined that the Veteran’s right knee, right hip and lumbar spine disorder was caused by his service-connected right foot disorder due to the Veteran’s constant bio-mechanical adaptation and compensation for his right foot disorder. The non-VA medical opinion is highly probative because the examiner had an accurate and complete understanding of the Veteran’s medical history and provided a medical conclusion with sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In a June 2015 non-VA treatment record, the Veteran reported experiencing right knee and right hip pain resulting from his right foot disorder. A September 2016 VA treatment record reflects the Veteran’s report of experiencing right knee discomfort. The Veteran was provided a right knee sleeve. The September 2020 VA examiner diagnosed the Veteran with a right knee strain, right hip strain and lumbosacral strain. The examiner opined that the Veteran’s service-connected right foot disorder did not cause or aggravate the Veteran’s disorders because there was no evidence of causation or aggravation; rather, the Veteran’s disorders were due to overuse and age. The medical opinion is of low probative value because the examiner did not consider the Veteran’s competent lay statements as to experiencing right knee, right hip and lumbar spine pain. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay person is competent to identify the presence of disability or symptoms of disability subject to lay observation). The Board will grant the claims based on the benefit-of-the-doubt doctrine. The May 2015 non-VA examiner opined that the Veteran’s right knee, right hip and lumbar spine disorder was caused by his service-connected right foot disorder. Although the September 2020 VA examiner opined otherwise, as noted above, the VA medical opinion was of low probative value. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, service connection is warranted and the claims are granted. Bilateral eye disorder The Veteran asserts that his bilateral eye disorder was caused by service, or alternatively, as secondary to his service-connected residuals of a fractured nasal cartilage. The claim will be denied. STRs are silent for complaints or contemporaneous reports concerning the Veteran’s eyes. In service medical history reports dated November 1976, January 1987, August 1988 and August 1990, the Veteran answered “no” to the question of whether he then had, or once had eye trouble. In service medical examination reports dated November 1976, October 1980, January 1987, August 1988 and August 1990, no eye abnormalities were noted. The STRs are highly probative evidence. Rucker, supra. In his August 2017 substantive appeal, the Veteran asserted having been treated for his bilateral eye disorder during service. Contrary to the Veteran’s assertion, the highly probative STRs are silent for complaints or contemporaneous reports concerning the Veteran’s eyes, the Veteran denied experiencing eye trouble in his service medical history reports and no eye abnormalities were noted in the Veteran’s service medical examination reports. AZ, supra; Kahana, supra. In a January 2011 non-VA treatment record, the Veteran denied experiencing double vision and eye infections. A January 2013 VA treatment record reflects the Veteran’s diagnosis of right eye pterygium. A December 2013 VA treatment record reflects the Veteran’s report of experiencing bilateral eye itching and swelling. He was diagnosed with pterygium and allergic conjunctivitis. In an April 2014 VA treatment record, the Veteran reported experiencing stable vision and denied experiencing bilateral eye dryness, burning and irritation. The Veteran was diagnosed with pterygium and it was noted that the Veteran’s pterygium was not visually significant or symptomatic. In the February 2015 VA examination, the Veteran reported experiencing bilateral eye itching for approximately twenty years. The Veteran was diagnosed with non-infectious allergic conjunctivitis. The examiner opined that the Veteran’s allergic conjunctivitis was not caused by his service-connected fractured nasal cartilage; rather, it was caused by environmental factors. The VA medical opinion was inadequate and therefore of low probative value because the examiner opined as to causation and not aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). A February 2019 VA treatment record reflects the Veteran’s diagnosis of right eye pterygium and bilateral eye allergic conjunctivitis. The December 2020 VA examiner indicated that the Veteran’s conjunctivitis was temporary and that it was not present during the examination. The examiner opined that the Veteran’s conjunctivitis and pterygium was not caused or aggravated by the Veteran’s fractured nasal cartilage because a broken nose will not result in or aggravate a seasonal allergy or pterygium. The VA medical opinion is highly probative. Nieves-Rodriguez, supra. A preponderance of the evidence is against a finding that the Veteran underwent an in-service event, injury or disease as to his bilateral eye disorder and that his bilateral eye disorder was caused or aggravated by service-connected residuals of a fractured nasal cartilage. STRs were silent for complaints or contemporaneous reports concerning the Veteran’s eyes, the Veteran denied having ever experienced eye trouble in his service medical history reports and no eye abnormalities were noted in the Veteran’s service medical examination reports. The December 2020 VA examiner opined that the Veteran’s bilateral eye disorder was not caused or aggravated by the Veteran’s service-connected residuals of a fractured nasal cartilage. Significantly, no competent medical provider has opined otherwise. Therefore, service connection is not warranted and the claim is denied. Increased Rating – Right Foot Disorder Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Under DC 5284, for “foot injuries, other,” a 10 percent rating is warranted for moderate, a 20 percent rating for moderately severe and a 30 percent rating for severe. 38 C.F.R. § 4.71a, DC 5284. A note reflects that a 40 percent rating is warranted for actual loss of use of the foot. Id. The words “moderate,” “moderately severe” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Veteran’s residuals of a right foot injury are rated noncompensable from October 25, 1980 to January 17, 1983; 10 percent disabling from January 18, 1983 to June 14, 2015 and 20 percent disabling from June 15, 2015 and continuing thereafter under DC 5284. The appellate period is from November 25, 2009, the receipt date of the Veteran’s increased rating claim. In the January 2010 VA examination, the Veteran reported experiencing right foot redness, pain, swelling, heat, stiffness, fatigability, weakness and lack of endurance. The Veteran reported experiencing flare-ups precipitated by walking, standing and pushing. The Veteran indicated having to relieve his symptoms with rest and Tylenol. The Veteran reported having to walk slowly, was able to stand for only thirty minutes and was unable to walk more than one mile and having to wear wider shoes to avoid pressure. He denied having to use assistive devices. A physical examination revealed no right foot swelling or instability. The examiner noted right foot painful motion, tenderness, weakness and abnormal weight-bearing. In a July 2010 VA treatment record, the Veteran denied experiencing right foot pain. A physical examination revealed minimal right foot discomfort and no painful motion. A January 2011 non-VA treatment record reflects the Veteran’s report of experiencing right swelling, soreness and pain exacerbated with wearing shoes and weight-bearing. A physical examination revealed moderate pain on palpation on the dorsal aspect of the metatarsal phalangeal joint and severe pain on palpation on the dorsal aspect of the proximal interphalangeal joint. A right foot radiograph revealed non-uniform narrowing with degenerative change to the proximal interphalangeal joint, calcified spurs with hypertrophic bone formation consistent with exostosis. In a February 2011 statement, the Veteran’s relative argued that the Veteran’s right foot had not properly healed and that he had to wear enclosed shoes resulting in irritation. In VA treatment records dated November 2011, January 2012, April 2012, August 2012 and December 2012, the Veteran reported experiencing moderate to severe right foot pain. A physical examination revealed pain with palpation, painful motion and tenderness. There was no edema, erythema, discoloration, or ecchymosis. In the May 2015 non-VA examination, the Veteran reported experiencing constant right foot swelling and pain exacerbated by weight-bearing and walking. The Veteran reported having been able to walk approximately 300 feet without stopping and resting. The examiner noted that the Veteran limped badly, used a cane and special shoes. The Veteran’s right foot was wider than his left foot and he was observed as having a marked limp and an altered gait. In the August 2015 VA examination, the Veteran reported experiencing right foot flare-ups described as pain on weight-bearing. The Veteran reported experiencing functional loss manifested as trouble with walking and playing sports. The examiner described the severity of the Veteran’s right foot as moderately severe. It was noted that the Veteran’s right foot chronically compromised weight-bearing and required shoe modifications. The examiner indicated that the Veteran then-experienced no right foot pain except during flare-ups and that he did not use assistive devices. A VA right foot radiograph revealed posterior calcaneal spur and degenerative change throughout the interphalangeal joints. An August 2015 VA treatment record reflects the Veteran’s report of experiencing right foot pain. The Veteran was observed as walking independently and safely without an assistive device; however, the Veteran was provided with a cane and advised on how to properly walk. A September 2016 VA treatment record reflects the Veteran’s report of experiencing right foot pain. A physical examination revealed pain with palpation and during range of motion testing. There was no edema or discoloration. The Veteran was observed as ambulating with an abnormal gait. In the November 2019 VA examination, the Veteran reported experiencing constant right foot throbbing and trouble standing more than five minutes. The Veteran indicated experiencing trouble with engaging in sports, an altered gait and driving barefoot. The Veteran reported experiencing flare-ups and functional loss described as right foot pain and trouble with standing. The examiner described the severity of the Veteran’s right foot as moderately severe. It was noted that the Veteran’s right foot chronically compromised weight-bearing and required shoe modifications. Pain on motion contributed to functional loss. Contributing factors were pain on weight-bearing, instability of station and disturbance of locomotion. There was no functional loss when used repeatedly over time. There were no other pertinent physical findings and the Veteran did not use assistive devices. In an October 2020 VA treatment record, it was noted that the Veteran used a cane and experienced gait and balance trouble. The Board will grant an increased 30 percent rating for the entirety of the appellate period for the Veteran’s right foot disorder under DC 5284 based on the benefit-of-the-doubt doctrine. The evidence reflects and the Veteran has consistently reported experiencing right foot redness, pain, swelling, heat, stiffness, fatigability, weakness and lack of endurance. The Veteran experienced trouble with walking and standing. The VA examiners indicated that the Veteran’s right foot chronically compromised weight-bearing and required shoe modifications. The August 2015 and November 2019 VA examiner described the severity of the Veteran’s right foot as moderately severe; however, the evidence reflects otherwise. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an increased rating is warranted and the claim is granted. A preponderance of the evidence is against a finding of an increased 40 percent rating for the entirety of the rating period on appeal under DC 5284. The evidence does not reflect the Veteran having experienced actual loss of use of his right foot. Significantly, no competent medical provider has indicated otherwise. Therefore, an increased 40 percent rating is not warranted and the claim is denied. REASONS FOR REMAND The remaining matters are remanded for the following action: 1. BACKGROUND FOR TO THE RO ADJUDICATOR The October 2020 VA medical opinion is inadequate because the examiner did not provide an etiology opinion as to the Veteran’s two in-service events pertaining to the Veteran’s duty specialty as a Torpedoman’s Mate. The Veteran has reported experiencing fear due to having dived “50 degrees down and 50 degrees up” and loading torpedoes. The Veteran’s report of separation from the armed forces (DD Form 214) reflects the Veteran having enlisted in a “TM Class A School Class” for six weeks. In a military personnel record (MPR) titled “Altitude Training, Air Compression and Oxygen Tolerance,” the Veteran was in a submarine that submerged to an equalized pressure of 50 PSI. In a MPR titled “Submarine Escape and Diving Training,” the Veteran participated in diving training where he “passed 50 buotant ascent.” The Veteran has substantiated having undergone an in-service event. 38 C.F.R. § 1154(a). Therefore, an addendum opinion is warranted. As noted above, the Board granted service connection for a right knee disorder, right hip disorder and lumbar spine disorder but the RO has not assigned ratings. The claim for a TDIU is inextricably intertwined. Tyrues v. Shinseki, 23 Vet. App. 166 (2009). An October 2020 VA treatment record reflects the Veteran’s report of having been retired as a postal service employee; however, no relevant social security administration records were in the claims file. 38 C.F.R. 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317 (2010). 2. Return the file to the VA examiner who conducted the October 2020 VA examination for an addendum opinion. If the examiner is not available, have the file reviewed by a similarly qualified examiner. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board’s questions without examination of the Veteran, another examination should be afforded to the Veteran. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. Was the Veteran’s psychiatric disorder caused by the Veteran having to load torpedoes due to his duty specialty as a torpedoman’s mate and/or participating in diving training? THE EXAMINER IS ADVISED THAT THE VETERAN LOADED TORPEDOES DURING SERVICE AS A TORPEDOMAN’S MATE AND PARTICIPATED IN DIVING TRAINING WHILE ABOARD A SUBMARINE. Although the examiner must review the VBMS file, his or her attention is drawn to the following: • In service medical history reports dated November 1976, January 1987, August 1988 and August 1990, the Veteran answered “no” to the question of whether he then had, or once had depression, excessive worry, or nervous trouble of any sort. • In service medical examination reports dated November 1976, October 1980, January 1987, August 1988 and August 1990, no psychiatric abnormalities were noted. • In a January 2010 VA treatment record, a review of systems revealed no nervousness or depression. • In a June 2012 VA treatment record, a depression screen revealed no depression. • In a January 2013 VA treatment record, a review of systems revealed that the Veteran experienced no trouble with sleeping and no depression. • In a June 2015 non-VA treatment record, the Veteran reported experiencing mild symptoms consistent with the presence of depression and a history of significant substance abuse. The Veteran was diagnosed with adjustment disorder under the DSM-IV. • In an October 2016 statement, pertinent to remand of the claim, the Veteran reported experiencing fear due to having dived “50 degrees down and 50 degrees up” and loading torpedoes. • In a January 2018 VA treatment record, the Veteran denied experiencing anxiety or depression. • The October 2020 VA examiner indicated that the Veteran did not have a diagnosis of PTSD but diagnosed the Veteran with unspecified depressive disorder under the DSM-V. 3. Obtain social security administration records relevant to the Veteran’s service-connected sinusitis, right foot disorder, onychomycosis, fractured nasal cartilage, right hip disorder, right knee disorder and lumbar spine disorder. 4. Readjudicate the issues on appeal, including the claim of TDIU. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.