FOOT IMPAIRMENT OF

Summary

The veteran, who served in the U.S. Army from January 1985 to January 1988, appeals the denial of service connection for a right foot disability, including nerve problems, as secondary to his service-connected lumbar spine degenerative arthrosis. The veteran claims his right foot issues are related to his lumbar spine condition, citing an in-service injury where he fell on a slippery deck and was placed on light duty. A September 2017 private chiropractic opinion suggested a link to service but was deemed inadequate due to a lack of rationale. A subsequent August 2019 VA examination found functional loss in the right foot and diagnosed right lower extremity radiculopathy, already service-connected, but was inadequate for failing to clarify if the foot disability was distinct from the radiculopathy or aggravated by the lumbar spine condition. Following a remand, a January 2020 VA examination found right foot drop and radiculopathy, with the examiner opining the foot condition was at least as likely as not proximately due to the service-connected lumbar spine condition. However, the examiner clarified that the foot condition was not distinct from the existing radiculopathy. A March 2020 addendum reiterated this, stating the foot drop and nerve condition were likely related to the lumbar spine radiculopathy. The Board concluded that while the veteran experienced functional loss, it was already compensated under the service-connected radiculopathy and not a separate disability. Therefore, service connection for a distinct right foot disability was denied.

Rationale

VA examination found foot condition related to service-connected lumbar spine condition; Examiner clarified foot condition was not distinct from existing radiculopathy; Board concluded foot issues already compensated under service-connected radiculopathy

Full Decision Text

Citation Nr: 20080214
Decision Date: 12/21/20	Archive Date: 12/21/20

DOCKET NO. 12-10 343
DATE: December 21, 2020

ORDER

Entitlement to service connection for a right foot disability, to include nerve problems, as secondary to service-connected lumbar spine disability, is denied.

FINDINGS OF FACT

The Veteran’s right foot disability, to include nerve problems, is associated with and not distinct from his service-connected radiculopathy of the right sciatic nerve.

The Veteran does not have a separate right foot disability for which service connection may be granted as secondary to degenerative arthrosis of the lumbar spine.

CONCLUSION OF LAW

The criteria for service connection for a right foot disability, to include nerve problems, as secondary to service-connected degenerative arthrosis of the lumbar spine, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Army from January 1985 to January 1988.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

In February 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.

In November 2019, the Board remanded the claims to obtain new examinations and medical opinions that determine the nature and etiology of the Veteran’s claimed right hip, right knee and right foot disabilities.  Thereafter, the RO was asked to readjudicate the issues along with entitlement to TIDU.

The Board notes that the representative listed other issues as remaining in appellate status. In September 2020, the RO granted service connection for right hip and right knee disabilities and entitlement to TDIU effective July 22, 2010, the month the Veteran states his service-connected disabilities affected his employment.  As such claims have been granted in full, the Board will proceed to adjudicate the only remaining issue in appellate review, which is service connection for right foot disability.

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).

Secondary service connection may 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 (2016).  In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Entitlement to service connection for a right foot disability, disability, to include nerve problems, as secondary to service-connected degenerative arthrosis of the lumbar spine.

The Veteran contends that his right foot disability is related to his service-connected degenerative arthrosis of the lumbar spine. 

The Veteran reported falling on a slippery deck in 1987, after which he reported to the medic and was placed on light duty.  See January 2020 VA examination.

The Veteran’s representative has asked the Board to consider the Veteran’s pain as it could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time and that such loss of function should be compensable.  See November 2019 Appellate Brief.

The Veteran submitted a September 2017 private medical opinion from a chiropractor, who concluded that his right foot pain is related to his injury in service.  This opinion, however, was deemed inadequate because the examiner did not offer a complete rationale to support the conclusion.

The Veteran underwent a VA examination in August 2019, where it was found that he had right foot pain that results in functional loss.  Notably, the
2020 VA examination.

The Veteran’s representative has asked the Board to consider the Veteran’s pain as it could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time and that such loss of function should be compensable.  See November 2019 Appellate Brief.

The Veteran submitted a September 2017 private medical opinion from a chiropractor, who concluded that his right foot pain is related to his injury in service.  This opinion, however, was deemed inadequate because the examiner did not offer a complete rationale to support the conclusion.

The Veteran underwent a VA examination in August 2019, where it was found that he had right foot pain that results in functional loss.  Notably, the Veteran was diagnosed with right lower extremity radiculopathy, which is already service-connected.  Additionally, the examination was deemed inadequate because it did not provide an opinion as to whether his right foot disability is aggravated by his service-connected back disability.  As such, the Board remanded the claim to obtain a medical opinion that clarifies whether the Veteran’s foot pain is a result of a disability that is distinct from his already service-connected radiculopathy and addresses aggravation.

Upon remand, the Veteran underwent a VA examination in January 2020. He reported right foot pain, burning sensation, numbness and tingling.  He reported feeling like someone is sticking him with something sharp and that he cannot stand or walk for more than a few minutes.  The Veteran had pain with prolonged walking and standing.  The examiner stated that the Veteran had right foot drop and drags his toes when walking.  The examiner stated that he had antalgic gait due to radiculopathy RLE.  He had moderate incomplete paralysis of the sciatic nerve, external popliteal nerve, musculocutaneous nerve, internal popliteal nerve, and posterior tibial nerve of the lower right extremity.  

The examiner opined that the Veteran’s right foot condition is at least as likely as not (50 percent or greater probability) proximately due to or the result of his service-connected lumbar spine condition.  The examiner stated that it is well known that with lumbar spine injury, the nerves along the spinal canal can become irritated and inflamed causing symptoms to the areas these nerves innervate.  Therefore, the examiner opined, the claimed foot condition is related to the Veteran’s service-connected lumbar spine condition.

Importantly, however, the examiner clarified that the Veteran does not have a right foot disability that is distinct from his service-connected radiculopathy. 

In a March 2020 addendum opinion, an examiner specified that the right foot condition at least as likely as not related to the Veteran’s service-connected degenerative arthrosis of lumbar spine.  The examiner clarified that the Veteran’s right foot drop and nerve condition is likely related to the lumbar spine radiculopathy.  The examiner explained that when there is injury or disruption in the normal pathophysiology of the spine and muscles associated, the nerves that branch off the spine and innervate the lower extremities can become irritated and inflamed causing abnormal dermal sensation like numbness, tingling, prickly, and or burning sensation as well as weakness.  

The Board concludes that although the Veteran’s pain amounted to functional loss, it has already been compensated under service-connected right lower extremity radiculopathy.  Such limitations, such as decreased ability to walk or stand for long periods due to pain, has been associated with nerve problems not caused by his arthrosis lumbar condition. The Board finds that the Veteran does not have a separate and distinct right foot disability which may be additionally service-connected.  Although the Veteran suffers from right foot drop, the medical evidence shows that it is related to his service-connected radiculopathy of the right sciatic nerve and not a separate musculoskeletal disability for which service connection may be granted, to include as secondary to service-connected thoracolumbar spine condition.

The Board has considered the Veteran’s statements that his right foot drop is related to his service-connected arthrosis of the spine.  However, 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 pathology and interpretation of complicated diagnostic medical testing.  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).  

The medical examiner concluded and clarified that the Veteran’s right foot condition is related to his
 spine.  However, 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 pathology and interpretation of complicated diagnostic medical testing.  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).  

The medical examiner concluded and clarified that the Veteran’s right foot condition is related to his service-connected radiculopathy and there is not a separate and distinct disability.  The examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Considering the findings on examination in light of the evidence of record and the contentions on appeal, the Board finds that this opinion is probative and supported by adequate rationale. Nieves-Rodriguez, 22 Vet. App. 295 (2008).

Consequently, the Board gives more probative weight to the January and March 2020 VA examinations as they provide the most clarification and specificity regarding the Veteran’s right foot disability with supporting and detailed rationale.

 

Therefore, as the preponderance of the evidence weighs in favor of finding that the Veteran’s right foot condition is already service-connected and he does not have a separate and distinct disability, the current claim must be denied.  

 

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. Wilson, 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.