Citation Nr: 1303608	
Decision Date: 02/01/13    Archive Date: 02/08/13

DOCKET NO.  99-02 403	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an initial rating higher than 20 percent for right ankle subtalar joint disability.

2.  Entitlement to an initial rating higher than 20 percent for left ankle subtalar joint disability. 

3.  Entitlement to service connection for bilateral heel spurs, including as secondary to the service-connected bilateral ankle disability.

4.  Entitlement to service connection for a bilateral knee disorder, including as secondary to the service-connected bilateral ankle disability.

5.  Entitlement to service connection for a bilateral hip disorder, including as secondary to the service-connected bilateral ankle disability.

6.  Entitlement to service connection for a low back disorder, including as secondary to the service-connected bilateral ankle disability.

7.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Barbara J. Cook, Attorney


ATTORNEY FOR THE BOARD

Shamil Patel, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February to June 1964 and from June to July 1971.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In an August 2004 rating decision, the RO implemented the Board's July 2004 decision granting service connection for bilateral (right and left) ankle subtalar joint disability.  The RO assigned an initial 20 percent rating for each ankle retroactively effective from October 20, 1997, the date of receipt of the petition to reopen this claim.  In response, the Veteran appealed for higher initial ratings for these right and left ankle disabilities.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others).  See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (since extending this practice even to claims that do not involve initial ratings).


In another rating decision since issued in July 2005, the RO denied the Veteran's additional claims for service connection for bilateral heel spurs, a bilateral knee disorder, a bilateral hip disorder, a low back disorder, and for a TDIU, and he also appealed that decision to the Board. 

In a November 2005 decision, the Board denied an earlier effective date for the grant of service connection for the Veteran's bilateral ankle disability, but remanded his claims for higher initial ratings for these disabilities for additional development.  After all requested development was completed, the Board issued a decision in September 2006 denying higher initial ratings for these ankle disabilities.

In separate actions, the Veteran appealed the Board's November 2005 and September 2006 decisions to the U.S. Court of Appeals for Veterans Claims (Court/CAVC).  As concerning the November 2005 decision, the Court issued a memorandum decision setting aside the portion of the November 2005 decision that had denied an earlier effective date for the grant of service connection for the bilateral ankle disability and remanding this claim for readjudication.  As to the September 2006 decision, the parties filed a Joint Motion for Remand (JMR) asking the Court also to vacate the decision denying these increased-rating claims and to remand them to the Board for further development and readjudication.  The Court issued an Order in February 2008 granting that JMR and subsequently returned the file to the Board for proceedings consistent with it.

Meanwhile, in May 2008 the Board remanded the claims for service connection for bilateral heel spurs, a bilateral knee disorder, a bilateral hip disorder, a low back disorder, and for a TDIU for further development and consideration.

A short time later, in July 2008, the Board determined that an earlier effective date of September 9, 1986, was warranted for the grant of service connection for the left and right ankle subtalar joint disabilities.

But in May 2011, the Board again remanded these remaining claims for higher initial ratings for these left and right ankle disabilities, the several claims for service connection secondary to these disabilities, and for a TDIU.

A portion of the Veteran's records are in the electronic ("Virtual VA") system.  Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process.  The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits.  Because this appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

In this decision the Board is deciding all of the claims, except for a TDIU that instead again must be remanded for still further development.


FINDINGS OF FACT

1.  The Veteran's right and left ankle subtalar joint disabilities do not result in ankylosis of either ankle.

2.  His bilateral heel spurs and plantar fasciitis, however, are exacerbated by his right and left ankle subtalar joint disabilities.

3.  As well, his bilateral knee chondromalacia, bilateral hip myofascial syndrome, and lumbar degenerative disc disease are also at least partly attributable to his right and left ankle subtalar joint disabilities.



CONCLUSIONS OF LAW

1.  The criteria are not met for initial ratings higher than 20 percent for the right and left ankle subtalar joint disabilities.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012).

2.  But the bilateral heel spurs and plantar fasciitis, bilateral knee chondromalacia, bilateral hip myofascial syndrome, and lumbar degenerative disc disease are proximately due to, the result of, or being aggravated by these service-connected right and left ankle subtalar joint disabilities.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

A.  Full Grant of Benefits

All of the claims for service connection at issue in this appeal are being granted in full.  So there is no need to discuss whether there has been compliance with the duty-to-notify-and-assist provisions of the VCAA as concerning these claims.  This is because even if, for the sake of argument, there has not been, this would be inconsequential and, therefore, ultimately amount to no more than nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102.  There is only this question as concerning the remaining claims for higher initial ratings for the right and left ankle subtalar joint disabilities, which instead are being denied.


B.  Duty to Notify

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, also apprise him of the information and evidence VA will obtain and of the information and evidence he is expected to provide.  38 C.F.R. § 3.159.  This notice should as well include indication that a "downstream" disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the underlying claim for service connection, so should apprise him of all elements of the claim.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326. 

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).


With respect to the Veteran's increased-rating claims, he is challenging the initial ratings assigned following the granting of service connection for his right and left ankle subtalar joint disabilities.  In Dingess, the Court (CAVC) held that in cases where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled.  Id., at 490-91.  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify him concerning these claims (as they arose in their initial contexts) has been satisfied.

According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved.  And, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO duly provide him this required SOC in April 2005 that, in part, contained the pertinent criteria for establishing his entitlement to higher initial ratings for these disabilities.  To this end, that SOC cited the applicable statutes and regulations, relevant rating criteria, and contained discussion of the reasons and bases for not assigning higher initial ratings for these disabilities.  Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b).  See also Dingess.  The claimant was allowed a meaningful opportunity to participate in the adjudication of the claim.  Thus, even though the initial VCAA notice did not address what would be required to receive higher ratings, the SOC did.  See Overton v. Nicholson, 20 Vet. App. 427 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the Appellant, the Court nonetheless determined the evidence established he was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless)..


C.  Duty to Assist

VA also has assisted the Veteran in developing his increased-rating claims.

His service treatment records (STRs), VA treatment records, private treatment records, and lay statements have been associated with the claims file for consideration.

He was also provided VA compensation examinations assessing and reassessing the severity of his bilateral ankle disability.  38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file, contain a description of the history of the disabilities at issue, document and consider the relevant medical facts and principles, and record the relevant findings for rating these disabilities.

The Veteran had a VA examination for his ankle disabilities in November 2011.  The VA examiner subsequently provided clarification in March 2012 regarding his examination findings, particularly insofar as whether there is ankylosis.  The Veteran's representative has asked for, but apparently not received, a copy of the RO's request for this clarification, which is not in the claims file.  The representative seemingly wants to review or scrutinize the wording of the request, perhaps to ensure it did not ask leading questions elicited at receiving what amounted to predetermined responses that would be unfavorable to the claims.  But there is a "presumption of [administrative] regularity" under which it is presumed that Government officials have properly discharged their official duties.  Clear evidence to the contrary is required to rebut this presumption.  See Ashley v. Derwinski, 2 Vet. App. 307 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Kyhn v. Shinseki, 23 Vet. App. 335 (2010).


In Mariano v. Principi, 17 Vet. App. 305 (2003), the Court indicated it "would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case."  Mariano, at 312.  But in Douglas v. Shinseki, 23 Vet. App. 19 (2009), the Court distinguished its holding in Mariano.  In Douglas, the Court acknowledged its decision in Mariano, but held that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim.  Douglas, at 26.

Here, the original examination report contained potentially conflicting findings regarding whether there is ankylosis, hence, the need for clarification.  There is no inherent reason to question the wording of the clarification request since the RO is under no obligation or mandate to necessarily deny claims, rather than grant them, including when there is need to resolve all reasonable doubt in the Veteran's favor.  38 C.F.R. §§ 3.102, 4.3.  The Court has in another decision reiterated that VA is not prohibited from obtaining a clarifying medical opinion, if necessary, even in response to a Veteran attorney's argument that VA would obtain this additional medical opinion merely with the intended purpose of ultimately denying the claim.  See Arnold v. Shinseki, No. 09-3368 (March 24, 2010).

VA has provided the Veteran opportunity to submit evidence and argument in support of his claims.  He has not made the Board aware of any other evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule).  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

Where entitlement to compensation already has been established and an increase in disability rating is at issue, the present level of disability is the primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence is that generated during the appeal period.  VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged" rating.  Fenderson v. West, 12 Vet. App 119, 125-26 (1999).  The Court also has held that a staged rating is appropriate even in a claim that does not involve an initial rating, but in that case the relevant temporal focus instead is on the factual findings and whether they show distinct time periods since one year before receipt of the increased-rating claim where the service-connected disability has exhibited symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2008).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

The Court has held that VA must analyze the evidence of pain, weakened movement, premature or excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including prolonged or during flare-ups.  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath, 1 Vet. App. at 592.  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not just limited to cases where there is arthritis).

But that said, although pain may cause functional loss, pain itself does not constitute functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id.; see 38 C.F.R. § 4.40.  Also, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40.  Moreover, if a Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).


Relevant Rating Criteria

The Veteran's left and right ankle disabilities are each assigned a 20 percent rating under Diagnostic Code 5271 throughout the period on appeal.  DC 5271 addresses limited motion of the ankle; the assigned 20 percent rating contemplates "marked" limitation of ankle motion and is the maximum rating available under this DC.

Under DC 5270, a 20 percent evaluation also is assigned for ankylosis of the ankle in plantar flexion less than 30 degrees.  For ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees, a higher 30 percent rating is warranted.  Whereas an even higher 40 percent rating is authorized for ankylosis of an ankle if the ankylosis is in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity.  38 C.F.R. § 4.71a, DC 5270.

There also are other DCs for rating ankle disabilities.  However, these other DCs do not allow for ratings higher than 20 percent (so not higher than the ratings the Veteran already has), or the objective evidence of record does not contain any of the relevant findings that would warrant their application, such as ankylosis of the subastragalar or tarsal joint (rated under DC 5272); malunion of the os calcis or astragalus (rated under DC 5273); or astragalectomy (rated under DC 5274).

Similarly, while the Veteran's representative argued in a February 2011 statement for consideration of DC 5056, which governs ankle replacement, the evidence does not warrant such consideration.  That is, while the Veteran has a history of ankle surgery, the record does not show he has received ankle replacement prosthesis as contemplated by DC 5056.


Evidence

Private treatment records dated in July 1997 show the Veteran reported experiencing anterolateral ankle pain, particularly when exiting a car or walking for more than 10 or 15 minutes.  Examination revealed a loss of 75 percent of subtalar mobility on the right side and 50 percent on the left side.  X-rays revealed traumatic arthritic changes at the subtalar joints on both sides.  The treating physician stated the Veteran was limited in his ability to stand, walk and function because of multiple problems with his feet.

VA treatment records dated in June 2004 show the Veteran reported constant pain around his ankles.  Going to the store or engaging in more strenuous activities bothered him significantly.  X-rays revealed severe bilateral subtalar arthritis.

Additional records dated in November 2004 also noted a significant amount of degenerative arthritis in his subtalar joints as well as his talonavicular joints.  He had joint motion compromised by 70 to 80 percent.

He had a VA compensation examination in June 2005.  He reported having pain in his ankles and feet.  He could only stand for 5 to 10 minutes and could only walk for a block at a time.  He treated his condition with medication and special shoes, and used a cane to ambulate.  Physical findings for the ankles were not recorded.

X-rays in November 2008 noted osteoporosis and mild degenerative changes in the ankles.  There was no soft tissue swelling.  In November 2009, he was noted to have limited range of motion in the left ankle with lateral pain and weakness.  He was instructed in joint protection and fitted with a left ankle lace-up brace. 

VA records dated in February 2010 show he reported experiencing sharp, constant bilateral ankle pain, rated as 8/10 to 9/10 in severity (on a 10/10 scale).


He had another VA examination in March 2010.  He reported that his ankles were painful with any weight-bearing, and that he had severely limited range of motion.  He utilized a motorized wheelchair or a cane to ambulate.  He denied any signs of inflammation.  On examination, he had a flatfoot stance and walk.  Neither ankle was supple, and the examiner noted they were barely able to move.  Dorsiflexion was 5 degrees and plantar flexion was 10 degrees bilaterally.  Due to ankle stiffness, there was pain in any attempt to anteflex or dorsiflex either ankle.  Repetitive testing was not possible.  There was hypersensitivity along the medial and lateral aspects of the ankles.

In April 2010, the Veteran complained of increased bilateral ankle pain.  He had limited range of motion, weakness in dorsiflexion and plantar flexion, and was unable to heel or toe walk due to his limited motion.  He also had limited foot adduction and abduction.

He had an additional examination in August 2010.  He described having ankle pain rated as 5/10 to 6/10 in severity, sometimes increasing to 9/10.  He had difficulty with standing and walking, but denied any additional limitation due to flare-ups.  Examination revealed dorsiflexion of 10 degrees and plantar flexion of 30 degrees bilaterally.  There was pain throughout the range of motion.  There was very little inversion or eversion of either ankle.  There was no additional limitation following repetitive testing.

Yet another VA examination was performed in November 2011.  The Veteran reported that his ankles and feet will "give out" due to his pain, causing him to fall.  He also noticed swelling and stiffness in his ankles, but denied any heat, redness, or clicking.  He ambulated with a cane and a motorized scooter.  He was able to walk less than 1 mile and could not stand for more than 30 minutes.  He experienced flare-ups secondary to activity.  On examination, dorsiflexion was 10 degrees and plantar flexion was 30 degrees, bilaterally.  There was pain throughout the range of motion.  These findings were unchanged following repetitive testing.  However, he had increased swelling, pain, and disturbance of locomotion.  There was tenderness to palpation bilaterally, but no joint laxity.  Strength was 5/5.  Notably, the examiner also stated the Veteran had ankylosis in dorsiflexion between 0 and 10 degrees bilaterally.

In a March 2012 statement, the November 2011 VA examiner clarified that the Veteran did not have ankylosis of the ankle joints.  The finding of ankylosis was an error by the examiner.  Rather, the Veteran had range of motion of 10 degrees dorsiflexion and 30 degrees plantar flexion bilaterally, as also noted in the examination report.

Analysis

Based on this evidence, a rating higher than 20 percent is not warranted for either ankle.  Absent a showing of ankylosis, the Veteran already has the highest possible rating one may receive based on limitation of motion of each ankle.  Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].

This is not to say he does not have severe limitation of motion of his ankles, indeed, to the contrary, this is quite evident.  And, in fact, some have indicated he experiences pain throughout his range of motion, so from the starting to the end points.  But a rating at the 20-percent level under DC 5271 takes this into account by accepting there is what amounts to "marked" limitation of motion of the ankle.  And although the November 2011 VA examiner initially reported the Veteran having both active motion and ankylosis, this same examiner subsequently clarified in his March 2012 statement (addendum opinion) that the Veteran does not actually have ankylosis, though the results of the range-of-motion testing admittedly show his range of motion is significantly or severely compromised.

Ultimately, the question of whether there is ankylosis is a medical, not lay, determination.  See 38 C.F.R. § 3.159(a)(1) versus (a)(2).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  So even though others who have had occasion to examine or evaluate the Veteran, even aside from this VA examiner, have indicated findings causing one to at least wonder whether there is so restricted motion as to be tantamount to ankylosis, there ultimately has never been this confirmation, such as in the way of an actual clinical diagnosis or objective finding.

Notably, during the earlier March 2010 VA examination, the Veteran was found to have very limited range of motion, experienced pain with any attempt to anteflex or dorsiflex either ankle, and could not complete repetitive testing.  These are the most severe objective findings recorded since the filing of this claim.  However, as he nonetheless had some range-of-motion capability, these findings do not represent a level of fixation and immobility equivalent to ankylosis as defined by the case law.  Additional findings just one month later, in April 2010, show limited motion but also do not demonstrate ankylosis.  Therefore, the assigned 20 percent ratings under DC 5271, which as mentioned account for a "marked" level of limited motion, are appropriate for his left and right ankle disabilities.

In adjudicating these claims for higher initial ratings these ankle disabilities, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis.  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this Schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to VA regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

According to the holding Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The Board is precluded from assigning an extra-schedular rating in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of Compensation and Pension Service for this initial consideration.  See Barringer v. Peake, 22 Vet. App. 242 (2008).

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's left and right ankle disabilities with the established criteria found in the Rating Schedule for these disabilities shows that the rating criteria reasonably describe his disability level and symptomatology.  His primary complaints include chronic ankle pain, consequent limitation of motion (which his representative argues is the functional equivalent of anklyosis), also weakness, etc., especially during flare ups of symptoms or prolonged or repetitive use of the ankles.  But the resultant functional impairment is contemplated by DC 5271.  Indeed, when, as here, there is a showing of arthritis, DC 5003 indicates the maximum assignable rating under DC 5003 is 20 percent, even considering pain, which is the Veteran's current rating, and that the disability otherwise should be rated under the appropriate DC based on the joint or joints involved, which, here, since in the ankles, invoke consideration of DC 5271.  The Veteran's disabilities, then, do not result in any symptoms falling so far outside the Rating Schedule as to render it inadequate to properly evaluate his disabilities.  Consequently, referral of these claims for extra-schedular consideration is unwarranted.  Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996) Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996)

Service Connection

In order to establish entitlement to service connection for a claimed disability, the facts must demonstrate that a disease or an injury resulting in current disability was incurred in active military service or, if pre-existing service, was aggravated during service - that is, worsened beyond its natural progression.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  In addition, certain chronic diseases, including arthritis, will be presumed to have been incurred in service if they become disabling to a compensable degree (generally meaning to at least 10-percent disabling) within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  This presumption is rebuttable by affirmative evidence to the contrary, however.

Service connection on a direct basis requires competent and credible evidence showing:  (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b).  Establishing entitlement to service connection on this alternative secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, at 448.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

The provisions of 38 C.F.R. § 3.310 were amended effective October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability.  71 Fed. Reg. 52744-47 (Sept. 7, 2006).  Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995.  Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made.

Thus, in order to establish service connection for a claimed secondary disorder, there must be competent and credible evidence of a current disability, evidence of a service-connected disability, and evidence of a nexus between the service-connected disability and other currently claimed disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995).


Heel Spurs

Service connection is already in effect for bilateral ankle subtalar joint disability.  And all of the Veteran's remaining claims for service connection are predicated on the notion that his additionally claimed disabilities are secondary to his already service-connected ankle disabilities, which, again, means caused or aggravated by these service-connected disabilities.  Medical evidence is generally, though not always, needed to associate a claimed condition with a service-connected disability.  See Velez v. West, 11 Vet. App. 148, 158 (1998); McQueen v. West, 13 Vet. App. 237 (1999).

Recent VA examination reports and statements from the Veteran's private physician reflect diagnoses of bilateral heel spurs or residuals of heel spur excisions.  Therefore, the existence of a current disability has been established, and the pertinent question is whether these heel spurs are related to his military service, including secondarily by way of a service-connected disability.

He had an enlistment examination in February 1964.  No relevant abnormalities were noted.  Notably, there are two copies of the Report of Medical History associated with this examination.  One copy notes a history of prior foot trouble, painful joints, and arthritis.  The other copy does not reflect such a history.  A June 1964 Medical Board examination noted his bilateral ankle conditions but did not reference any other foot disabilities.

A VA examination in August 1965 indicated he complained of pain in the back of his heels and the ankles.  However, the examination found that no foot disability was present.

During his second period of service, an additional examination in June 1971 noted pes planus (flat feet).  A Medical Board examination in July 1971 noted his bilateral ankle conditions but did not reference any other foot disabilities.  


Private treatment records dated in August 1973 show he complained of sharp pain in his feet.  Examination and X-rays revealed a complete laxity of the lateral aspect of the ankles.  This was repaired by tendonous repair procedures in a June 1972 operation.  However, he continued to have pain in his feet and ankles.

An October 1981 VA examination diagnosed bilateral metatarsus varus with pes planus.  X-rays revealed the presence of staples in the bilateral calcanei.

A November 1981 letter from Dr. D.M.C. stated the Veteran had had progressively worsening pain in his feet associated with decreased range of motion of his ankles.  An additional letter from Dr. J.O.B. dated in June 1982 stated the Veteran had developed bilateral ankle instability requiring ligamentous reconstruction.  Because of this ligamentous instability, he also had developed heel spurs and plantar fasciitis.

Records dated in March 2002 reflect diagnoses of great toe arthritis and tarsometatarsal arthritis.

He had a VA examination in June 2005.  He was diagnosed with bilateral pes planus, degenerative joint disease of the metatarsa phalangeal joints, and residuals of a fracture of the right great toe.  The examiner stated the right great toe disability was not a service-connected problem.  The Veteran's heel spurs also were not related to his bilateral ankle disability, according to that examiner, who cited to literature indicating heel spurs are a common finding in the general population and are related to simple aging and wear and tear.

A July 2007 letter from Dr. J.S.E. surmised that the Veteran's reported symptomatic foot problems dated back to a forced march that he had endured in service in 1964.  The doctor explained that it was quite possible that the present foot condition may be a direct result of this type of long-term injury.


A March 2008 letter from Dr. J.S.E. stated the Veteran's heel spurs and plantar fasciitis were aggravated by his subtalar instability, so by this service-connected disability.  This doctor explained that, because of the instability of the plantar fascial ligament, it is seeing more tensile forces than it normally would, which in turn creates a recurrent pain issue.  It was also because of subtalar instability that the position in which the heel hits the ground has changed, making the heel spur more prominent.

The Veteran had another VA examination in March 2010.  He was diagnosed with loss of motion in the feet, bilateral pes planus, and bilateral osteroarthrosis of the metatarsophalangeal joints.  An additional examination in August 2010 diagnosed bilateral plantar fascia releases and heel spur excisions.  The examiner determined these conditions were not a result of the Veteran's bilateral ankle condition, but did not provide a rationale for that opinion.

The Veteran had another VA examination in November 2011.  He complained of bilateral foot pain closely tied to his ankle pain.  He had undergone surgery on his right toe in 1998.  The examiner stated there was no complaint or treatment for heel spurs, plantar fasciitis, pes planus, or degenerative changes.  These current conditions were not related to service, according to this examiner.  Moreover, there was nothing in the currently-accepted, peer-reviewed, credible and authoritative literature to demonstrate that conditions of the subtalar joint will cause or aggravate these conditions.  Therefore, concluded this examiner, the diagnosed conditions were unrelated to the service-connected condition.

Additional medical treatise evidence submitted by the Veteran attributes heel spurs to plantar fasciitis.

Based on the evidence as a whole, the Board finds that service connection is warranted for the Veteran's bilateral heel spurs and plantar fasciitis as the evidence supporting the claim is at least as probative of the determinative issues of causation and aggravation as that against the claim.

There is no disputing the Veteran has heel spurs, and the overall weight of the evidence is at least in equipoise as to whether this condition is related in some way to his service-connected bilateral subtalar joint disability.  When, as here, the evidence supporting the claim is as probative as the evidence against the claim, he is given the benefit of the doubt and the claim granted.  38 C.F.R. § 3.102.

There are several competent medical opinions addressing the etiology of his heel spurs and plantar fasciitis, some favorable and others not.

According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches."  Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.  The failure of the physician to provide a basis for his/her opinion affects the weight or credibility of the evidence.  Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).

The November 1981 opinion attributed foot pain to the Veteran's decreased ankle range of motion, and the June 1982 opinion attributed heel spurs and plantar fasciitis to his ankle ligament instability.  Neither opinion offers a specific rationale for these conclusions, and therefore they hold less probative value.  Similarly, the June 2005 VA opinion attributes heel spurs to factors such as aging or wear and tear, but does not address whether the Veteran's heel spurs were aggravated by his ankle condition.  The August 2010 VA examination diagnosed bilateral plantar fascia releases and heel spur excisions and concluded they were not related to the Veteran's ankle conditions, but did not provide a rationale.  Therefore, these opinions also hold less probative value.  

However, the March 2008 opinion stated that heel spurs and plantar fasciitis were aggravated by the Veteran's subtalar instability due to increased tensile forces and the altered position of the heel as it hits the ground.  The November 2011 VA examiner stated the diagnosed conditions were not caused or aggravated by the Veteran's ankle condition, as the medical literature on this topic supposedly did not support such a finding.  While the VA examiner reviewed the claims file in forming his opinion, the Court held in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), that a claims file review, as it pertains to obtaining an overview of an appellant's medical history, is not a requirement for private medical opinions.  A review of the claims file by a VA examiner, without more, does not automatically render the VA examiner's opinion competent or persuasive.  In this case, both opinions are supported by adequate bases, and the evidence is at least in equipoise as to whether the Veteran's bilateral heel spurs and plantar fasciitis are aggravated by his service-connected ankle disabilities, especially seeing as though the Veteran has submitted medical treatise evidence associating heel spurs with plantar fasciitis.  To the extent the opinions in this case rely on his statements, the Board finds these statements to be both competent and credible in that he reported a history of symptoms he is competent to identify, and these reports are generally consistent throughout the period on appeal.  As specifically concerning the opinions that are favorable to the claim and that relied, either partly or entirely, on this self-recounted lay history, in Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court indicated the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the Veteran.  Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.  And the Board is not rejecting, rather accepting the Veteran's statements and reported history as credible.  Therefore, resolving all reasonable doubt in his favor, the Board finds that service connection for his bilateral heel spurs and plantar fasciitis is warranted.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology.).  Rather, this need only be an as likely as not proposition, which in this particular instance it is.

As service connection has been established for these heel spurs and plantar fasciitis as secondary to a service-connected disability, the issue of whether these heel spurs and plantar fasciitis are directly related to the Veteran's military service is moot.


Bilateral Knee Disorder

A recent VA examination report diagnosed the Veteran with bilateral knee chondromalacia.  His STRs, however, are completely unremarkable for any complaints, diagnoses, or treatment for a knee condition of any sort, including this one especially, and he has not asserted that he sustained knee injuries during his service or that his current condition is directly related to his service.  Instead, this claim also is predicated on the notion that his bilateral knee disorder is secondary to his service-connected disability.

Private treatment records dated in March 2005 show a diagnosis of chronic knee pain and arthritis secondary to bilateral foot arthritis.

The Veteran underwent a VA examination in June 2005.  He was diagnosed with a chronic sprain of both knees, noted to be a minimal disability.  X-rays were normal.  The examiner stated this condition was less likely than not related to the Veteran's subtalar joint disability, but did not provide an explanation for his opinion.  

The Veteran submitted medical treatise evidence in July 2006 in support of his claim.  This treatise evidence included a statement that the subtalar complex smoothes out the rough axes of ambulation of the knees.

A March 2008 opinion from Dr. J.S.E. indicated he did not directly evaluate the Veteran's knees.  However, it was quite common that with the type of disability the Veteran had in his feet, it would lead to degenerative disease and malalignment of the knee over a period of time.  This was due to the malalignment of the foot with the ankle, which the knees tend to compensate for and in turn have abnormal wear.

The Veteran had another VA examination in August 2010.  He was diagnosed with bilateral knee sprains.  The examiner stated this condition was less likely than not related to the Veteran's bilateral ankle condition, but did not provide any explanation for his opinion.

An additional VA examination in November 2011 diagnosed bilateral knee chondromalacia.  However, the examiner concluded this condition was not caused or aggravated by the Veteran's bilateral ankle disabilities because there was nothing in the currently accepted, peer-reviewed, credible and authoritative literature indicating conditions of the subtalar joint will cause or aggravate these knee conditions.

Not only is there confirmation the Veteran has bilateral knee disability, however, but the evidence concerning the etiology of this disability is at least in equipoise as to whether it is related to (either caused or aggravated by) the Veteran's 
service-connection subtalar disabilities.

As before, the Board must weigh the probative value of the medical opinions addressing etiology.  And while the June 2005 and August 2010 VA examiners concluded that it was less likely than not the Veteran's knee disabilities were related to his ankle disabilities, neither opinion provided any supporting explanation.  Therefore, these opinions have little probative value.

The November 2011 VA opinion was based on a review of the claims file and an examination of the Veteran.  The examiner concluded the Veteran's knee condition was not caused or aggravated by his ankle condition, as the available literature supposedly does not support such a finding.  However, the opinion does not address the March 2008 private opinion or the treatise evidence submitted by the Veteran as requested in the Board's May 2008 and May 2011 remands.

The March 2008 private opinion stated that the malalignment of the foot with the ankle caused by the Veteran's service-connected condition resulted in compensation by the knees, causing abnormal wear.  Notably, records from March 2005 established a diagnosis of knee arthritis, and additional evidence has established a current chondromalacia diagnosis.  Chondromalacia is abnormal softening of cartilage.  McIntosh v. Brown, 4 Vet. App. 553, 556 (1993).  Therefore, while the private physician did not specifically evaluate the Veteran's knees, his opinion is generally consistent with the available physical findings.

In light of the March 2008 and November 2011 medical opinions, the evidence is at least in equipoise as to whether the Veteran's bilateral knee conditions are caused by his service-connected bilateral subtalar joint conditions and, if not necessarily caused by this service-connected disability, then alternatively aggravated by it.

Two opinions are required for secondary service connection claims:

1.  Is the claimed disorder "caused by" or "due to" the 
service-connected disability? AND

2.  Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)?

Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connection condition (regulatory change effective from September 2006).  An opinion that something "is not related to" or ""is not due to" does not answer the question of aggravation.  See Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b).

To the extent the opinions in this case rely on the Veteran's statements and 
self-recounted history, the Board finds these statements to be both competent and credible, so ultimately probative, in that he reported a history of symptoms he is competent to identify, and his reports are generally consistent throughout the record on appeal.  Therefore, resolving all reasonable doubt in his favor, service connection is granted.

Bilateral Hip Disorder

A recent VA examination report list a diagnosis of pelvis and hip myofascial syndrome.  The Veteran's STRs, however, are completely unremarkable for any complaints, diagnoses, or treatment for a hip condition, and he has not asserted that he sustained hip injuries during his service or that his current condition is directly related to his service.  As with his other claims, this claim also instead is predicated on the notion of entitlement to secondary service connection.

Private treatment records dated in March 2005 reflect a diagnosis of chronic hip arthritis.

The Veteran had a VA examination in June 2005, after which he was diagnosed with chronic bilateral hip pain.  The examiner stated this condition was less likely than not related to the Veteran's subtalar joint disability, but did not provide any explanation for the opinion.

The Veteran submitted medical treatise evidence in July 2006 in support of his claim.  This treatise evidence included mention that the subtalar complex smoothes out the rough axes of ambulation of the hips.

A December 2007 letter from Dr. J.S.E. stated the problems the Veteran is now having with his hips are significantly related to his subtalar joint issues.  The deviation of his gait from the normal standard has, over time, affected his hips and their ability to compensate for subtalar pain.  All of these joints are connected together and facilitate a person's mobility.  Once significant damage occurs to one, it is a progressive problem that affects the motor balance and joint wear of the other joints.

A November 2008 notation in the Veteran's VA outpatient treatment records concedes that it is possible his gait is altered due to his foot pain and therefore is causing his hip pain.

He had a VA examination in August 2010.  The diagnosis was bilateral hip arthralgias.  The examiner stated this condition was less likely than not related to the Veteran's bilateral ankle condition, but did not provide any explanation for his opinion.


An additional VA examination in November 2011 diagnosed pelvis and hip myofascial syndrome.  However, the examiner concluded this condition was not caused or aggravated by the Veteran's bilateral ankle disabilities because there was nothing in the currently accepted, peer-reviewed, credible and authoritative literature indicating conditions of the subtalar joint will cause or aggravate these hip conditions.

As before, the Board must weigh the probative value of the medical opinions addressing etiology, and some are supportive of the claim whereas others are not.  Although the June 2005 and August 2010 VA examiners concluded that it was less likely than not the Veteran's hip disabilities were related to his ankle disabilities, neither opinion provided any supporting explanation or rationale.  Therefore, these opinions have little probative value.  Mere claims file review does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  Similarly, the November 2008 statement from the Veteran's VA doctor stated that "it was possible" that there was a link between the Veteran's foot conditions and his hip pain.  However, service connection may not be based on speculation or remote possibility.  See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. at 30, 33 (1993).

The November 2011 VA opinion is based on a review of the claims file and an examination of the Veteran, so at least in theory it has the proper factual foundation and predicate.  See Elkins v. Brown, 5 Vet. App. 474 (1993); Black v. Brown, 5 Vet. App. 177 (1993).  The examiner concluded the Veteran's knee condition was not caused or aggravated by his ankle condition, as the available literature supposedly does not support such a finding.  However, critically, the opinion does not address the December 2007 private opinion or the treatise evidence submitted by the Veteran as requested in the Board's May 2008 and May 2011 remands.

The December 2007 private opinion concluded the Veteran's hip conditions were related to his bilateral ankle conditions, and supported this conclusion with an underlying medical rationale.

In light of the December 2007 and November 2011 medical opinions, the evidence is at least in equipoise as to whether the Veteran's bilateral hip conditions are caused by his service-connected bilateral subtalar joint conditions or, if not caused, at least aggravated.  To the extent the opinions in this case rely on the Veteran's self-recounted statements and history, the Board finds these statements to be both competent and credible, so ultimately probative, in that he reported a history of symptoms he is competent to identify, and these reports are generally consistent with the other evidence in the file.  Therefore, resolving all reasonable doubt in his favor, service connection is granted.

Low Back Disorder

A recent VA examination report diagnosed the Veteran with lumbar degenerative disc disease.  His STRs, however, are completely unremarkable for any complaints, diagnoses, or treatment of a low back condition, and he has not asserted that he sustained back injuries in service or that his current condition is directly related to his service.  Therefore, resolution of this claim also turns on whether his low back condition is related to service-connected disability.

Private treatment records dated in March 2005 reflect a diagnosis of chronic low back pain and arthritis.

He had a VA examination in June 2005.  He was diagnosed with chronic lumbosacral strain with severe subjective symptoms.  The examiner stated this condition was less likely than not related to the Veteran's subtalar joint disability.  This was based on the fact that the Veteran's ankle condition had its onset in 1964, whereas his low back condition had occurred just within the past three years.

A December 2007 letter from Dr. J.S.E. explained that the problems the Veteran is now having with his low back are significantly related to his subtalar joint issues.  The deviation of his gait from the normal standard has, over time, affected his back and their ability to compensate for subtalar pain.  All of these joints are connected together and facilitate a person's mobility.  Once significant damage occurs to one, it is a progressive problem that affects the motor balance and joint wear of the other joints.

A November 2008 notation from the Veteran's VA treatment records stated that it is possible that his gait is altered due to his foot pain and therefore is causing his low back pain.

He had another VA examination in August 2010.  He was diagnosed with degenerative changes of the lumbar spine.  The examiner stated this condition was less likely than not related to the Veteran's bilateral ankle condition, but did not provide any explanation for this opinion.

An additional VA examination in November 2011 diagnosed lumbar degenerative disc disease.  However, the examiner concluded this condition was not caused or aggravated by the Veteran's bilateral ankle disabilities because there supposedly was nothing in the currently accepted, peer-reviewed, credible and authoritative literature to demonstrate that conditions of the subtalar joint will cause or aggravate these hip conditions.

As before, the Board must weigh the probative value of these medical opinions addressing etiology.  Also just as before, while the August 2010 VA examiner concluded that it was less likely than not that the Veteran's low back disability was related to his ankle disabilities, no explanation was provided.  Therefore, this opinion has little probative value.

The June 2005 and November 2011 VA opinions are based on a review of the claims file and an examination of the Veteran.  The 2005 examiner concluded that the Veteran's low back condition was too remote in time in inception to his ankle conditions to establish a linkage between the two.  The 2011 examiner concluded the Veteran's back condition was not caused or aggravated by his ankle condition, as the available literature supposedly does not support such a finding.  However, neither opinion addresses the December 2007 private opinion favorable to the claim or the treatise evidence submitted by the Veteran as requested in the Board's May 2008 and May 2011 remands.

The December 2007 private opinion concluded the Veteran's hip conditions were related to his bilateral ankle conditions, and supported this conclusion with an appropriate rationale.

In light of the June 2005, December 2007 and November 2011 medical opinions, the evidence is at least in equipoise as to whether the Veteran's lumbar degenerative disc disease is caused by his service-connected bilateral subtalar joint conditions, and if not caused by this service-connected disability then at least aggravated by it.  To the extent the opinions in this case rely on the Veteran's statements and history, the Board finds these statements to be both competent and credible, so ultimately probative, in that he reported a history of symptoms he is competent to identify, and these reports are generally consistent throughout the period on appeal with the other evidence in the file.  Therefore, resolving all reasonable doubt in his favor, service connection is granted.


ORDER

The claims for initial ratings higher than 20 percent for the right and left ankle subtalar joint disabilities are denied.

However, service connection is granted for the bilateral heel spurs and plantar fasciitis, bilateral chondromalacia of the knees, bilateral hip myofascial syndrome, and lumbar degenerative disc disease.



REMAND

Resolution of the Veteran's remaining claim of entitlement to a TDIU relies on the assignment of initial ratings and effective dates for these grants in this decision of service connection for his foot, knee, hip, and low back disabilities because a TDIU must consider all service-connected disabilities, so in combination, and their affect on the Veteran's ability to obtain and maintain employment that could be considered substantially gainful versus just marginal in comparison.  See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19.  The RO will assign these initial ratings in the first instance, when implementing the Board's grant of service connection for these additional disabilities.  The Board therefore must remand, rather than immediately decide, this derivative TDIU claim to allow the RO this opportunity.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined).

Accordingly, this derivative TDIU claim is REMANDED for the following action:

1.  Effectuate the Board's grant of service connection for heel spurs and plantar fasciitis, bilateral knee chondromalacia, bilateral hip myofascial syndrome, and lumbar degenerative disc disease.  This includes assigning initial ratings for these disabilities.

2.  Then, based on these additionally service-connected and rated disabilities, readjudicate the derivative TDIU claim on its merits.  This includes determining whether a TDIU is warranted a schedular basis under 38 C.F.R. § 4.16(a), if the Veteran has sufficient ratings for his service-connected disabilities, or, if not, also under the extra-schedular provisions of § 4.16(b).  If this TDIU claim continues to be denied, send him and his attorney an SSOC and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs