KNEE IMPAIRMENT OF

Summary

The veteran, who served in the United States Army from October 1976 to May 1977, appeals decisions regarding service connection for several conditions. The Board granted service connection for bilateral pes planus, tinnitus, and a low back condition with right lower extremity radiculopathy. The pes planus and low back condition were found to have had their onset in service and were aggravated by service, with the Board resolving doubt in the veteran's favor due to relative equipoise in the evidence. The tinnitus claim was granted based on credible lay reports of onset during service and VA's concession of hazardous noise exposure. The Board found the VA examination for tinnitus inadequate. The case was remanded for further development on bilateral hearing loss, right knee condition, bilateral plantar fasciitis, right foot malunion of metatarsal bones, and entitlement to TDIU. The remand instructions require obtaining all outstanding records, conducting adequate VA examinations with specific nexus opinions on onset, etiology, and relation to service or service-connected conditions, and adjudicating the TDIU claim after these actions are completed. The Board noted that the prior VA examination for the pes planus and low back conditions was inadequate due to incorrect standards of proof and lack of rationale.

Rationale

New and material evidence submitted; Reopened claim; Inadequate prior nexus opinion; Remand for further development; Address onset, nature, cause, and relationship to service/disabilities

Full Decision Text

Citation Nr: 23051078
Decision Date: 09/14/23	Archive Date: 09/14/23

DOCKET NO. 19-18 219
DATE: September 14, 2023

ORDER

New and material evidence to reopen claim of service connection for right knee condition has been presented; to this extent, the appeal is granted.

Service connection for bilateral pes planus is granted.

Service connection for tinnitus is granted.

Service connection for lumbar condition, to include degenerative disc disease, with right lower extremity radiculopathy is granted.

REMANDED

Service connection for bilateral hearing loss is remanded.

Service connection for right knee injury is remanded.

Service connection for bilateral plantar fasciitis is remanded.

Service connection for right foot malunion of metatarsal bones is remanded.

Service connection for bilateral hallux valgus 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 evidence received is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's right knee disability claim.

2. The Veteran's bilateral foot disability is related to service. 

3. The Veteran's tinnitus is related to service.

4. The Veteran's low back condition is related to service.

5. The Veteran's right lower radiculopathy is related to his service connected back condition.

CONCLUSIONS OF LAW

1. New and material evidence having been submitted, the service connection claim for right knee condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 

2. The criteria to establish service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria to establish service connection for bilateral pes planus disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria to establish service connection for low back disability with right lower radiculopathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from October 1976 to May 1977. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran presented sworn testimony at a hearing before the undersigned Acting Veterans Law Judge (VLJ) in February 2022. At the hearing, the VLJ granted the Veteran's motion to keep the record open for a period of 90 days to afford him the opportunity to submit additional evidence in support of his appeal. The Board will consider that evidence in the adjudication of this matter.

New and Material Evidence

1. New and material evidence for right knee condition.

The Veteran submitted claims for entitlement to service connection for right knee condition. Since that time, in connection with his claims, the Veteran submitted VA and Non-VA treatment records and sworn testimony regarding his claimed conditions. See BVA hearing transcript (February 2022). These documents and testimony were new, not duplicative of evidence previously of record, and material in that they addressed the issue at hand. 

Thus, the Board finds that new and material evidence has been received to reopen his previously denied claims for right knee condition. See 38 C.F.R. § 3.156.

Service Connection

In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service.  See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise.  38 U.S.C. §§ 1110, 1131 (
. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

1. Service connection for bilateral pes planus.

The Veteran seeks service connection for his pes planus condition since it started in service and has continued thereafter. See BVA hearing transcript (February 2022).

The Board acknowledges that the Veteran's entry exam noted an asymptomatic pes planus condition. See STR (October 1976). 

A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). This presumption of aggravation only requires evidence of an actual worsening of a preexisting condition during service; it does not require direct evidence of nexus, that is, that the worsening was caused by service. See Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010).

A veteran has the burden of showing that there was an increase in disability. See Wagner, 370 F.3d at 1096. Aggravation of a preexisting injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. §1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306 (b)(1). Similarly, temporary or intermittent flare-ups of the preexisting disorder during service are not sufficient to be considered aggravation unless the underlying disability (as contrasted to symptoms) has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991).

If the preexisting disorder underwent an increase in severity during service, clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation. Such evidence includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b).

Here, the evidence shows that the Veteran had a pes planus condition with no symptoms and impairment at entry. Additionally, he started suffering from feet pain and impairment later in his service. See STR (October 1976 and April 1977). Further, throughout the appeal, the Veteran has stated that his feet problems started and have been recurrent since service. Thus, the Board finds that the evidence is in relative equipoise as to whether the Veteran experienced symptoms and functional impairment during service, as "lay persons are competent to report
 aggravation. Such evidence includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b).

Here, the evidence shows that the Veteran had a pes planus condition with no symptoms and impairment at entry. Additionally, he started suffering from feet pain and impairment later in his service. See STR (October 1976 and April 1977). Further, throughout the appeal, the Veteran has stated that his feet problems started and have been recurrent since service. Thus, the Board finds that the evidence is in relative equipoise as to whether the Veteran experienced symptoms and functional impairment during service, as "lay persons are competent to report observable physical conditions." Here, the Board finds the Veteran's competent statements to be credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the competent and credible medical and lay evidence demonstrates that the Veteran's bilateral foot disability had its onset and was aggravated by service.  

While the record contains a March 2018 negative nexus opinion, the Board finds this examination inadequate and of minimal probative value since the examiner applied the incorrect standard of proof to establish service connection and no complete rationale was provided to discuss the final determination. See VA medical examination (March 2018). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions).

In sum, the evidence weighs in favor of the Veteran's claim and service connection for bilateral pes planus disability is warranted. 

2. Service connection for tinnitus.

The Veteran seeks service connection for tinnitus, which he relates to in-service exposure to loud noises. Additionally, he credibly reported that his tinnitus had its onset during service and has been recurrent since that time. See BVA hearing transcript (February 2022).

The Veteran's duties as a mechanic exposed him to hazardous noise and VA has acknowledged the Veteran was subjected to significant in-service acoustic trauma. 

The Veteran is competent to establish to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362 (2005). Tinnitus is capable of lay observation. Competent lay evidence is sufficient in and of itself to establish service connection. See Buchanan v. Nicholson, 451 F. 3d. 1331 (2006).

Thus, the Veteran has competently and credibly reported ongoing, recurrent tinnitus during the appeal period, and that his tinnitus began during service.  Additionally, the Veteran credibly described being exposed to extremely loud noises while performing military duties. VA conceded hazardous noise exposure. Accordingly, service connection for tinnitus is warranted. See Fountain v. McDonald, 27 Vet. App. 258 (2015).  

3. Service connection for low back condition with right lower extremity radiculopathy.

The Veteran seeks service connection for his low back condition since it had its onset in service and has continued thereafter. In support, the Veteran credibly reported that his current low back condition and functional impairment began while in service, and those symptoms and functional impairment persisted ever since. See BVA hearing transcript (February 2022). Moreover, his medical treatment record document a history of back problems since service. See STR (May 1977); VA medical treatment record (February 2020).  

The Veteran has a diagnosis of degenerative disk disease. See VA medical examination (March 2018).

Throughout the appeal, the Veteran has stated that his back problems have been recurrent since service. The evidence is in relative equipoise as to whether the Veteran experienced symptoms and functional impairment during service, as "lay persons are competent to report observable physical conditions." Here, the Board finds the Veteran's competent statements to be credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the competent and credible medical and lay evidence demonstrates that the Veteran's low back disability had its onset in, and is related to, service.  

In sum, the evidence weighs in favor of the Veteran's claim and
 that his back problems have been recurrent since service. The evidence is in relative equipoise as to whether the Veteran experienced symptoms and functional impairment during service, as "lay persons are competent to report observable physical conditions." Here, the Board finds the Veteran's competent statements to be credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the competent and credible medical and lay evidence demonstrates that the Veteran's low back disability had its onset in, and is related to, service.  

In sum, the evidence weighs in favor of the Veteran's claim and service connection for low back disability is warranted. See 38 U.S.C. § 1103(b); 38 C.F.R. § 3.300(b); see also Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). 

In addition, the Board finds that a separate rating for right lower extremity radiculopathy is warranted. Indeed, his March 2018, VA examination shows moderate symptoms with intermittent pain in his right lower extremity. See VA medical examination (March 2018). 

Thus, when considering the medical and lay evidence of record and after resolving all reasonable doubt in the Veteran's favor, the Board finds that a separate rating for the Veteran's right lower extremity radiculopathy is warranted.  

REASONS FOR REMAND

4. Service connection for bilateral hearing loss.

Notably, the Veteran's medical record is incomplete. The most current VA medical evidence is from May 2020. On remand, the RO must make all the appropriate efforts to obtain the Veteran's VA and Non- VA medical records. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020).

The Veteran seeks service connection for bilateral hearing loss. In Support the Veteran credibly reported his hearing problems onset in service. See BVA hearing transcript (February 2022). Indeed, his medical record show hearing problems in service. See STR (May 1977).

In February 2018, the Veteran was provided a VA examination for hearing loss. However, the Board finds it inadequate since the examiner reported that the puretone and speech discrimination results were not considered reliable. See VA medical examination (February 2018) see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, an adequate examination is needed to determine if the has hearing loss for VA purposes.

On remand, the examiner shall conduct all testing necessary to determine if the Veteran suffers from hearing loss for VA purposes and the onset, etiology, and nature of the Veteran's claimed condition. In doing so, the examiner must consider the medical and lay evidence on record and provide a complete rationale explaining all conclusions reached. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020).

5. Service connection for right knee condition.

6. Service connection for bilateral plantar fasciitis.

7. Service connection for right foot malunion of metatarsal bones.

8. Service connection for bilateral hallux valgus.

The Veteran seeks service connection for his right knee and feet conditions, to include right foot malunion of metatarsal bones, bilateral plantar fascitis, and bilateral hallux valgus. In support, the Veteran reported that his right knee and feet conditions were due to his now service-connected bilateral pes planus condition. See BVA hearing transcript (February 2022). Additionally, the medical record reveals a diagnosis and treatment for the abovementioned conditions. 

An inadequate negative nexus opinion was obtained in March 2018. Id. The examiner applied the incorrect standard of proof to establish service connection and provided inadequate supporting rationale for the findings. Additionally, the examiner did not adequately discuss the Veteran's credible reports regarding the onset of the conditions, as well if the
 connection for his right knee and feet conditions, to include right foot malunion of metatarsal bones, bilateral plantar fascitis, and bilateral hallux valgus. In support, the Veteran reported that his right knee and feet conditions were due to his now service-connected bilateral pes planus condition. See BVA hearing transcript (February 2022). Additionally, the medical record reveals a diagnosis and treatment for the abovementioned conditions. 

An inadequate negative nexus opinion was obtained in March 2018. Id. The examiner applied the incorrect standard of proof to establish service connection and provided inadequate supporting rationale for the findings. Additionally, the examiner did not adequately discuss the Veteran's credible reports regarding the onset of the conditions, as well if the Veteran's conditions are caused, related, aggravated or proximately due to his service-connected disabilities. See VA medical examination (March 2018); see also, Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

On remand, the examiner shall conduct all testing necessary to determine the onset, etiology, and nature of the Veteran's right knee and feet conditions, to include right foot malunion of metatarsal bones, bilateral plantar fascitis, and bilateral hallux valgus. Additionally, the examiner must determine and discuss if the Veteran's claimed conditions are related, caused, proximately due or aggravated by his now service-connected feet and back disabilities. In doing so, the examiner must consider the medical and lay evidence on record and provide a complete rationale explaining all conclusions reached. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020).

9. Entitlement to TDIU.

The Veteran reported that his now service-connected disabilities and remanded conditions impact his ability to secure or follow a substantial gainful occupation. The Veteran's TDIU claim remains inextricably intertwined with the matters granted and remanded in this decision and thus must be remanded.  See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Additionally, the Veteran may submit lay statements to describe the impact of his service-connected disabilities on his ability to secure or follow a substantial gainful occupation during the appeal period. 

The matters are REMANDED for the following action:

1. Obtain any outstanding VA and Non-VA treatment records.

2. Notify the Veteran that he may submit additional lay statements, to include, from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, onset, and etiology of his claimed conditions. 

The Veteran must be provided an appropriate amount of time to submit this lay and/or medical evidence.

3. Schedule the Veteran for an audiogram and determine if he has hearing loss for VA purposes and if it is related to his documented hearing loss in service.

4. Schedule a VA examination for the Veteran's claimed conditions and conduct all necessary testing to determine their onset, nature, and cause. 

The examiner shall address the following:

(a) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed conditions had their onset in, at least in part, in service?

(b) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed conditions are related, at least in part, to service?

(c) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed conditions are proximately due, at least in part, to his service-connected conditions, to include the medication the Veteran takes to treat those conditions?

(e) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal) that the Veteran's claimed conditions has been aggravated, at least in part, by his service-connected conditions and medications?

Separate opinions addressing causation and aggravation are required for the claimed conditions. A complete rationale must be given for all opinions and conclusions expressed.  

It is not necessary that the service-connected conditions be diagnosed or even service-connected at the time the claimed conditions were incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate.

The examiner must acknowledge and discuss with a complete rationale the Veteran's medical and competent lay reports regarding the onset, nature, and cause of any claimed conditions. To include if they are related to his service-connected disabilities. In doing so, the examiner must specifically review, acknowledge, and discuss with a complete rationale the medical evidence on record.

?

If unable to render
 by his service-connected conditions and medications?

Separate opinions addressing causation and aggravation are required for the claimed conditions. A complete rationale must be given for all opinions and conclusions expressed.  

It is not necessary that the service-connected conditions be diagnosed or even service-connected at the time the claimed conditions were incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate.

The examiner must acknowledge and discuss with a complete rationale the Veteran's medical and competent lay reports regarding the onset, nature, and cause of any claimed conditions. To include if they are related to his service-connected disabilities. In doing so, the examiner must specifically review, acknowledge, and discuss with a complete rationale the medical evidence on record.

?

If unable to render a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. If the examiner is unable to provide any requested opinion without resort to speculation, he or she must explain why this is so.

5. Upon completion of the above actions, adjudicate the claim for a TDIU.

 

 

Joshua Castillo

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Alvarado

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.