Citation Nr: 1317519 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-37 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral pes planus, claimed as bilateral flat feet. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active duty service from November 1962 to November 1973. The Board notes that in a February 2008 administrative decision, the Veteran's period of service from May 8, 1970 through November 26, 1973 was determined to be dishonorable for VA purposes and therefore VA benefits arising from that period of service are barred. The Veteran did not appeal that administrative decision and it is considered final. The Board will therefore abide by that determination in assessing the Veteran's claims on appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), in Portland, Oregon, which denied service connection for bilateral pes planus, bilateral hearing loss and tinnitus, and granted service connection for psoriasis, assigning a noncompensable evaluation for that disorder. The Veteran timely appealed his assigned evaluation for psoriasis and the denials of service connection. During the pendency of the appeal, a December 2009 rating decision granted service connection for bilateral hearing loss and tinnitus. No notice of disagreement has been received with respect to the initial rating assignments. Thus, those issues are no longer in appellate status. Likewise, that December 2009 rating decision assigned the Veteran a 10 percent evaluation for his psoriasis, beginning March 26, 2007, which is the date on which he filed his claim for service connection. This appeal was previously before the Board in January 2012. At that time, the Board granted the Veteran's claim for an increased evaluation for his service connected psoriasis. Therefore, this matter is no longer before the Board. The claim for entitlement to service connection for pes planus was remanded for further development. Also, the Board in January 2012 noted that the Veteran had raised the issue of unemployability due to his psoriasis. The Board therefore took jurisdiction over the issue of entitlement to TDIU on appeal in order to comport with the United States Court of Appeals for Veterans Claims (Court) holding in Rice v. Shinseki, 23 Vet. App. 447 (2009), that a claim for TDIU is part and parcel of a claim for increased evaluation. The claims for entitlement to service connection for bilateral pes planus and for TDIU have now been returned for further appellate review. The Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge in August 2011; a transcript of that hearing is associated with the claims file. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's pes planus was noted upon entry into active duty. 2. Competent medical opinions conclude that it is less likely than not that the Veteran's pes planus increased in severity beyond the natural course because this disability was already severe when he entered service. CONCLUSION OF LAW The criteria for an award of service connection for pes planus have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1151, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with a letter in February 2008 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claim. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. VA treatment records have been obtained. He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners after a review of the claims folder. The Board notes that while the December 2012 VA examiner failed to provide the opinion requested by the Board in the January 2012 remand, the AMC forwarded the record to another VA examiner for review, and the requested opinions were obtained in March 2013. Therefore, the Board finds that there has been substantial compliance with the action requested by the remand. The Veteran has offered testimony at a hearing before the undersigned Veterans Law Judge, and a transcript of this hearing is in the record. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. Service Connection The Veteran contends that his flat feet were aggravated by military service. He concedes that this condition existed when he entered service, but argues that it became more symptomatic during service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. With regard to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive, and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999), and a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, hand pain, and shortness of breath, the Veteran is not competent to provide evidence as to more complex medical questions, as is the case here regarding a question of aggravation. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). As previously noted, the Veteran's period of service from May 8, 1970 through November 26, 1973 was determined to be dishonorable for VA purposes. A February 2008 Administrative Decision determined that the Veteran's actions after May 7, 1970 constituted willful and persistent misconduct. A discharge from service under other than honorable conditions (UOTHC), issued because of willful and persistent misconduct, will be considered to have been issued under dishonorable conditions, and bars entitlement to veteran's benefits. 38 C.F.R. § 3.12(d)(4). However, the Veteran's service from May 8, 1963 to May 7, 1970 is honorable, and benefits can be awarded for disabilities incurred during that period. Therefore, only the service treatment records from May 8, 1963 to May 7, 1970 are to be considered when determining whether or not service connection for the Veteran's pes planus should be granted. A review of the Veteran's service treatment records shows that his December 1962 enlistment examination noted third degree bilateral pes planus at that time. Accordingly, the Veteran is not due the presumption of soundness as to that condition. See 38 U.S.C.A. § 1111 (West 2002). A preexisting injury or disease will be considered 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 is due to the natural progress of the disease. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.306(a). The Veteran's remaining service treatment records show that in April 1965 he sought treatment for painful arches. The examiner stated that the feet were symptomatic due to third degree pes planus. The Veteran was noted to have previously tried arch supports. He was placed on profile for severe flat feet in April 1965. An October 1965 Report of Medical Examination states that the Veteran had second degree pes planus. A March 1969 Report of Medical Examination also states that the Veteran had severe flat feet. The service treatment records covering the Veteran's period of dishonorable service continue to describe his pes planus as severe. A September 1972 examiner noted the history of severe pes planus but attributed the Veteran's current problems to having injured his left foot about one month previously when he jumped off of a truck and felt a pop in his foot. October 1972 records characterize the pes planus as moderately severe, but a February 1973 clinical record and a March 1973 physical profile record again describe severe flat feet. The post service medical records include the report of a February 2008 VA examination. At that time, he reported always having flat feet. The Veteran said that he was given arch supports during basic training but he decided they made his feet even sorer and stopped using them. After finishing basic training he was placed on physical profile for the entire time he was in service. The Veteran said that he had no further interventions or injuries during service. At the time of his discharge in May 1970 the Veteran said he could walk but that he had no recollection of how long he could stand or walk before being limited by pain. He said that there were no new injuries or major changes in his feet following discharge. After completion of the examination, the impression was pronated feet bilaterally. The examiner added that the Veteran stated he had preexisting pronated feet before the military but that his feet became more symptomatic during military service. An X-ray study resulted in an impression of pes planus for each foot, with mild degenerative changes of the right foot and a tiny calcaneal spur of the left foot. In December 2012, the Veteran was provided another VA examination by the same examiner who conducted the February 2008 examination. He denied new injury since February 2008 but reported that foot and ankle pain was increasing. The remaining history, diagnosis, and discussion were the same as in February 2008, and the examiner did not provide any additional opinions as to whether or not the pes planus was aggravated during service. The AMC obtained a VA medical opinion regarding the Veteran's claim for service connection for pes planus in March 2013. The medical records were reviewed by the examiner prior to rendering an opinion. The examiner discussed the service treatment records, as well as the February 2008 and December 2012 VA examination reports. The most recent examination was also noted. At the conclusion of the review, the examiner opined that it was less likely than not that the Veteran's foot condition was proximately due to or aggravated beyond natural progress by military service. The rationale was that the Veteran's disability was congenital and thus existed prior to service. There was sufficient documentation in the service treatment records to support a finding of severe, third and second degree, pes planus on pre-admission was well as re-enlistment documents. In addition, the Veteran was placed on profile early in his career due to his inability to exercise and perform his daily functions without discomfort. It was less likely than not that the foot condition was made worse because the Veteran was never able to fulfill the physical requirements of the military. The overall conclusion was that the Veteran entered the military with severely flat feet that were symptomatic, and although he was accepted his pes planus was significantly flat with a complete loss of the arch. Therefore, it was less likely as not proximately due to or aggravated beyond the natural course because the feet were structurally flat to begin with. The Board finds that service connection for the Veteran's pes planus is not warranted. This disability existed prior to service, and the most probative medical opinion states that it was not aggravated during service. The service treatment records show that the Veteran had third degree pes planus upon entering active service. He does not dispute that this disability existed prior to service. Therefore, service connection can only be established if the pes planus is aggravated by service. At this juncture, the Board notes that the March 2013 opinion referred to the Veteran's pes planus as congenital. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). However, the VA General Counsel has drawn a distinction between congenital defects and congenital diseases. Service-connection may be granted for diseases of congenital, developmental or familial origin. In the instant cases, service connection is warranted if the evidence as a whole establishes that the familial conditions in question were incurred or aggravated during service within the meaning of VA law and regulations. VAOPGCPREC 82-90. For the sake of this decision, the Board will treat the Veteran's pes planus as a congenital disease for which service connection may be awarded based on aggravation. The record contains two VA medical reports that address whether or not the Veteran's pes planus was aggravated by active service. The Board finds the February 2008 examination to be inadequate. The Board notes that the examiner does not render any opinion as to aggravation during military service; he merely reiterates the Veteran's statements that he became more symptomatic during service. Such statements of a lay history as provided by the Veteran do not amount to a medical opinion merely because the transcriber of such statements happens to be a medical professional. See Leshore v. Brown, 8 Vet. App. 406, 409 (1995). The Board further observes that there is a difference between a disability becoming symptomatic on use and that disability undergoing the permanent increase in severity that is required for aggravation. In contrast, the March 2013 examiner reviewed all of the Veteran's medical records, and then specifically addressed whether or not the Veteran's pes planus increased in severity beyond its natural rate of progression during service. She determined that it was less likely than not that there was such an increase, and provided several paragraphs of rationale to support this opinion. Therefore, the Board finds this opinion to be the most accurate and persuasive. In reaching this decision, the Board has considered the Veteran's opinion that his pes planus was aggravated during service. However, while the Veteran is competent to report that he experienced an increase in symptoms during service, he is not competent to state that this represented a permanent increase in severity. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In contrast, the March 2013 examiner notes that the Veteran's pes planus was already described as either third or second degree when he entered service. It follows that the condition was already severe at the start of service, with the inference being that this left little to no room for an increase in severity. The Board finds that the preponderance of the evidence is against the Veteran's claim, and service connection for bilateral pes planus is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral pes planus, claimed as bilateral flat feet, is denied. REMAND The Veteran argues that his service connected disabilities combine to render him unemployable. The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). If the appropriate rating under the pertinent diagnostic code of the rating schedule is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2012). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2012). According to the applicable laws and regulations, a total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a) (2012). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet these percentage standards if he or she is unemployable by reason of his or her service-connected disability(ies). 38 C.F.R. § 4.16(b) (2012). The January 2012 remand requested that the Veteran be scheduled for a VA general examination in order to determine whether or not his service connected disabilities render him unemployable. The examiner was to discuss the effects that the Veteran's disabilities have on his employability, in particular his psoriasis. However, while examinations were performed, no opinion was offered regarding the combined effects of the Veteran's service-connected disabilities on his ability to secure and maintain substantially gainful employment. While the Board is mindful of the opinions regarding the effects that each individual disability has on the Veteran's employability, it also notes that a TDIU is granted based on the combined effects of the disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In addition, the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The claims folder should be returned to the examiner who conducted the February 2012 general examination. After a review of the examination report and the claims folder, the examiner should provide the following opinion: Is it as likely as not that the combined effects of all the Veteran's service connected disabilities render him unable to obtain or maintain gainful employment? The reasons and bases for this opinion should be provided. If the examiner finds that they are unable to provide any portion of the requested opinion without resorting to speculation, the reasons and bases for that opinion should also be provided, and any missing evidence that would enable the requested opinion to be provided should be identified. If the examiner who conducted the February 2012 examination is not available, then the claims folder must be provided to a similarly qualified physician for review, and they are to then provide the requested opinion. A new examination should be scheduled only if deemed necessary by the examiner. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs