Citation Nr: 18132285
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-42 810
DATE:	September 6, 2018
ORDER
Entitlement to service connection for degenerative arthritis and degenerative disc disease of the cervical spine is granted.
REMANDED
Entitlement to an initial compensable rating for bilateral pes planus is remanded.
Entitlement to an initial compensable rating a right foot bunion is remanded.
FINDING OF FACT
The Veteran’s degenerative arthritis and degenerative disc disease of the cervical spine is a chronic disability presumed to be related to her active duty service.
CONCLUSION OF LAW
The criteria are met for service connection for degenerative arthritis and degenerative disc disease of the cervical spine. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1972 to January 1981, from September 2001 to March 2013.
This case comes on appeal to the Board of Veterans’ Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.
1. Entitlement to service connection for cervical arthritis is granted.
Entitlement to VA compensation may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.
To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
However, if a veteran serves 90 days or more of active, continuous service during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent or more during the one-year period following the separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder.  See 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309.  This presumption may be rebutted by affirmative evidence to the contrary.  38 U.S.C. § 1113; 38 C.F.R. § 3.307(d).
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.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b).
The Veteran underwent a VA cervical spine examination in December 2013.  She was diagnosed as having degenerative arthritis and degenerative disc disease of the cervical spine.  Ranges of motion of the neck were normal.  The VA examiner noted flare-ups, which involved soreness and stiffness in her neck.  However, the examiner did not estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements.  Thus, in giving the Veteran the benefit of the doubt and with consideration of 38 C.F.R. §§ 4.40, 4.45, 4.59, the Board finds the Veteran’s cervical spine arthritis and degenerative disc disease was compensable during the presumptive period.  38 C.F.R. § 4.71a, Diagnostic Code 5003.
Arthritis is considered to be “chronic” per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree within one year following separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017).  Accordingly, service connection for degenerative arthritis and degenerative disc disease of the cervical spine is granted.
REASONS FOR REMAND
1. Entitlement to an initial compensable rating for bilateral pes planus is remanded.
2. Entitlement to an initial compensable rating a right foot bunion is remanded.
The Board notes the Veteran was last afforded a VA examination to assess the severity of her service-connected pes planus and right foot bunion disabilities in December 2013.  To ensure that the record reflects the current severity of her disabilities on appeal, a contemporaneous examination is warranted.  See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination).
The new VA examination must also comply with Correia v. McDonald, 28 Vet. App. 158 (2016), as the Court in Southall-Norman v. McDonald, 28 Vet. App. 346 (2016), determined that both 38 C.F.R. § 4.59 and its holding in Correia apply whether or not the disability is being evaluated under a diagnostic code is predicated on range of motion measurements - such as diagnostic codes 5276 and 5280.
The matters are REMANDED for the following action:
1. Obtain any outstanding VA treatment records.
2. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of her service-connected pes planus and right foot bunion.  The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination.  The examiner must note in the examination report that the evidence in the claims file has been reviewed.
The appropriate Disability Benefits Questionnaire should be filled out.
In the examination report, the examiner must include all the following:
(a.) Active range of motion testing results.
(b.) Passive range of motion testing results.
(c.) Weightbearing range of motion testing results.
(d.) Non-weightbearing range of motion testing results.
If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation.  In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified.
The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors.
If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up.  If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. 
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The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached.
 
P. M. DILORENZO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Denton, Buck 

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