Citation Nr: 1319352 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-39 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable evaluation for service-connected bilateral pes planus. 2. Entitlement to service connection for fungus of the bilateral feet (toes). 3. Entitlement to service connection for a brain tumor. 4. Entitlement to service connection to a right leg disability. 5. Entitlement to service connection for a right hand disability, to include carpal tunnel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1977 to October 1981, with subsequent periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the U.S. Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran's physical claims file, and the portion contained in the electronic Virtual VA system, have been reviewed. The issues of entitlement to service connection for a right hand disability, a right leg disability, and a brain tumor are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's bilateral pes planus is not moderate in its severity; the only present symptom is some non-accentuated pain when the feet are used. 2. The Veteran's current fungal disability of the feet was diagnosed during active military service. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5276 (2012). 2. The criteria for service connection for a fungal disability of the feet have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initial Rating-Pes Planus Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the Board has considered the application of staged ratings, and has determined it to be inapplicable to the Veteran's claim for an increase. In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The Veteran was granted service connection for bilateral pes planus in a March 2009 rating decision; however, the disability was not thought severe enough to warrant compensation. Accordingly, a zero percent evaluation was assigned, and the Veteran has posited disagreement with this assessment. Essentially, he contends that his pes planus is to such a degree of disability as to warrant a compensable rating. Subsequent to the award of service connection, the Veteran was afforded a comprehensive VA foot examination in October 2011. In the associated report, the severity of the bilateral pes planus was assessed. Essentially, the examiner noted that while the Veteran needs usage of a walker to help ambulate, and that there is some necessary assistive device usage needed on a "constant" basis, that such a need does not result from the pes planus. Indeed, the Veteran had surgery performed to treat a brain tumor, and has residual limb weakness associated with this condition. The pes planus itself, however, was not linked to the need for wheelchair or walker assistance by the examiner, providing highly probative evidence against this claim. Indeed, while pain in the foot was noted, it was not described as accentuated, and there was no noted pain on manipulation. The Veteran did not display the characteristic calluses associated with pes planus, and extreme tenderness on the plantar surfaces was not found. No inward bowing of the Achilles' tendon (hind foot valgus with lateral deviation of the heel) was found, and the Veteran did not display marked inward displacement and severe spasm of the tendon on manipulation. There were no associated scars noted with the Veteran's flat feet. The examiner did note decreased longitudinal arch height, and there was no evidence of a marked deformity of the foot or evidence of marked pronation. The weight-bearing lines of the feet were not noted to be fall over or be medial to the great toe. The examiner also explained that hallux valgus and mycotic toe nails were present and were contributing to the alteration of the weight-bearing line. Imaging studies were not performed; however, upon the results of examination alone, the examiner was able to conclude that the Veteran's foot usage was not so severe as to be equivalent to having his foot amputated and needing a prosthesis, and the disorder, in itself, did not impede the Veteran's ability to engage in employment. In conclusion, the examiner stated that the Veteran had an arch while not weight-bearing, and that this was reduced with the application of weight. There was no bilateral pronation, no swelling or point of tenderness on either foot, and no redness present. The Veteran did not exhibit pain when his feet were twisted either in the fore or hindfoot. Dryness was, however, noted to be present on the soles of each foot. Pes planus, or flatfoot, is rated according to the criteria set forth in Code 5276. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). Under this criteria, a 10 percent rating is assigned for moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo Achillis, pain on manipulation and use of the feet, and such an assignment is enacted whether the disability manifests bilaterally or unilaterally. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 30 percent disabling for bilateral disability, and a 50 percent rating is awarded where bilateral flatfeet are manifested by pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achillis on manipulation, that is not improved by orthopaedic shoes or appliances. Id. In the current case, the Veteran has been specifically found to not exhibit pain on manipulation; although, there is some noted pain during use of the feet (not accentuated, however). Despite this, there was no noted bowing of the atendo Achillis, and the weight-bearing line was specifically not found to be over or medial to the great toe. No pronation disability was noted, and there was no tenderness or swelling. It was not abundantly clear as to if the Veteran used orthoses for his shoes; however, the only noted pain directly associated with the disability was not present on manipulation, and there was no interference with employment ability directly attributable to the pes planus. Essentially, the Board can conclude that, in not experiencing the abnormalities in weight-bearing and Achilles tendon alignment, that the Veteran has not met the requirements for a moderate disability under the regulatory guidelines. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). Generally speaking, terms such as "moderate" or "severe" are not defined by regulation, and must be interpreted by the Board in a manner that is "equitable and just." See 38 C.F.R. § 4.6. In the current case, however, Code 5276, which is the only regulatory provision directly applicable to pes planus, is very specific as to what symptoms and anatomic manifestations are necessary in order to warrant assignment of compensable disability rating. Simply put, while the Veteran experiences some pain on foot usage associated with his pes planus, that is the only manifestation of his service-connected disability, and such a manifestation does not fit the regulatory requirements for moderate disablement. Thus, he has not met the requirements for entitlement to a higher rating on a schedular basis, and the claim for an increase must be denied. The Board notes its duty to consider factors such as pain on use, weakness, fatigability, incoordination, and additional limitation of motion during repeated use when coming to an assessment as to the level of severity of a service-connected orthopedic disability. See DeLuca at 202. In this case, the only noted symptom associated with the service-connected disability was some level of pain during usage of the foot. Pertinently, pain was specifically not found to be present during manipulation exercises. Accordingly, the reported pain on use is fully considered in the assignment of the noncompensable rating. Id. Additionally, the Board notes that the pain exhibited during foot usage, being the only symptom associated with the service-connected pes planus, is not so unique, in itself, as to take the service-connected disability picture outside of the norm. Indeed, as noted, the pain is fully contemplated by the rating schedule, and thus, the claim will not be remanded for a referral to the Director of VA's Compensation Service for consideration of an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for a higher rating for his bilateral pes planus. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Service Connection-Bilateral Foot Fungus Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be current disability resulting from that injury. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic conditions, if manifest to a compensable degree within the first post-service year, will be presumed to have been incurred in active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, evidence of continuity of symptomatology, irrespective of an established nexus to service, will be sufficient to substantiate a claim for service connection for "chronic diseases" listed in 38 C.F.R. § 3.309. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As, however, the Veteran's claimed fungal disability does not fall into the regulatorily-defined category of a "chronic disease" for purposes of service connection, the continuity of symptomatology from service to present, without an established accompanying nexus between a current disability and service (or, in this case, to a service-connected disease), would not, in itself, be sufficient to substantiate the claim. Id. The Veteran contends that he developed foot fungus while on active duty in the Army, and that he currently experiences the disorder. The service treatment records document that the Veteran was diagnosed with immersion foot on all toes in February 1980. Conservative treatment was recommended, and the Veteran was able to complete his tour of active service. The Veteran served many subsequent years in the Army Reserve, and there were no further complaints with respect to his foot fungus during any INACDUTRA or ACDUTRA period. The Veteran's claim was denied in March 2009 on the basis of there being no current disability noted. That is, the RO noted the history of fungal infection to the feet via immersion foot bilaterally; however, did not note that any residual fungus was present. In relation to the claim for an increase for pes planus, however, the Veteran was afforded a comprehensive foot examination. While not the focal point of the examination, mycotic toe nails were assessed as being present in October 2011. No opinion with respect to nexus was entered. The Court has consistently held that "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board acknowledges that the Federal Circuit has suggested that laypersons perhaps can establish the required nexus to service in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the Court categorically held in a service connection case that "'a valid medical opinion' was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson."). However, the Court has also held that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing 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 professional. Id. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In the current case, the Veteran first noted fungal symptoms while in service and promptly reported the condition to service medical personnel. The diagnosis of immersion foot was made at this time, and is, as noted, thoroughly documented in the service treatment records as being present. The Veteran has not sought treatment since service; however, given the minimal nature of the disability with respect to functional impairment (i.e. some cosmetic impairment associated with uncovered toes), this is not particularly surprising. Thus, the lack of complaints by the Veteran do not significantly weigh against his claim. Indeed, by all accounts, the Veteran was diagnosed with a fungal condition while in active service, and at the only medical assessment to occur post-service, a fungal disability was also noted to be present. From this, the Board can conclude that the in-service diagnosed disability has not remitted subsequent to discharge from active duty. There is thus no need to obtain a nexus opinion, as all available medical evidence suggests that the current fungal disability in the toenails was diagnosed on active duty (i.e. the Veteran had a diagnosis of a bilateral fungal disability, and not mere symptoms without a diagnosis, while in active service). Accordingly, the claim is granted. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for a higher initial rating. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). It has done so in this case. It is pertinent to note that the Veteran is represented by the Disabled American Veterans (DAV), and that agency is presumed to have knowledge of what is necessary to substantiate a claim for a higher initial rating for pes planus. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claims, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records. Furthermore, the Veteran has been afforded a comprehensive VA foot examination which addressed the severity of his service-connected pes planus. The findings of the examination were reported after a through examination, and they are fully descriptive of the symptoms associated with pes planus. Accordingly, the examination results are adequate for rating purposes. Indeed, there is no indication of any additional relevant evidence that has not been obtained with regard to the severity of service-connected pes planus. As such, there is no duty to provide another examination or to offer another medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). With respect to the claim allowed in the decision above, it represents a full grant of the benefit sought, and accordingly, there is no concern as to the timing and content of VCAA notice with respect to the claim for service connection for a fungal disability of the feet. ORDER Entitlement to an initial compensable evaluation for service-connected bilateral pes planus is denied. Entitlement to service connection for fungus of the bilateral feet (toes) is granted. REMAND With respect to the claims for entitlement to service connection for a right hand disability, a right leg disability, and a brain tumor (to include any post-surgical residuals), the Board notes that additional development is required. Specifically, the Veteran has alleged that he was referred to private medical facilities while in a period of INACDUTRA or ACDUTRA with the U.S. Army Reserve. He states that he had physical examinations specifically directed (and, presumably, paid for) by the Army Reserve in the course of his lengthy service in that component. Based on these allegations and other evidence presented in the claims file, the Board is not satisfied that all reserve component records have been secured in this case. Indeed, the Veteran re-enlisted in the Army Reserve in 2002, and his enlistment contract specified a six-year term of service. The Veteran had accumulated enough points to retire from the Reserves in 1998 (effective upon his reaching of age 60); however, it appears as if he stayed on for many years after such eligibility was reached (presumably until, at the very least, he had met the age requirement). It is, at present, not abundantly clear as to when the Veteran was specifically released from all reserve component service, and the service department should be specifically queried so as to find out when such service was completed. In that regard, it is asked that the Veteran's service personnel records from his reserve time be obtained. Furthermore, with respect to the alleged physical examinations at private facilities, the Board notes that the Veteran was, indeed, scheduled for a physical examination in December 2003 at the Valley Medical Associates facility in Lewisburg, West Virginia (the address is contained in the service treatment records). The Veteran acknowledged having completed this examination in January 2004; however, despite the fact that this examination was specifically ordered by the Army Reserve Federal Health Program Office, no record of this consultation has been entered into the service treatment records. Indeed, save for this 2003 request for the conduction of a physical examination, there is nothing of record from approximately June/July 2001 onward in the reserve component records. As noted, the Veteran re-enlisted for a six-year term in 2002, which would make his time of separation sometime in 2008 (unless terminated early for reasons). There is, additionally, one annotation of record indicating that the Veteran was transferred to the Retired Reserve in October 2004, which is several years prior to the expiration of his most recent enlistment contract. Regardless of if the Veteran ceased to perform drill in late 2004 or 2008, there is, at the very least, a roughly three-year gap between the most recent record of reserve treatment and the completion of reserve service. Moreover, it is indicated that treatment was, specifically, offered during this time period, and no records of such treatment have been obtained. Indeed, in the available VA treatment records, the Veteran complained of being exposed to some type of explosion at some time in 2003. While this is referred to, vaguely, as a grenade explosion or the firing of a "trip wire," it is clear that the Veteran was stating that the explosion happened while in some type of Army Reserve status (ACDUTRA/INACDUTRA). The Veteran had not, as of yet, filed a claim for compensation, and this complaint was made in the course of treatment (which tends to support the credibility of the assertion). VA could not verify any such incident occurring in an ACDUTRA or INACDUTRA period; however, as noted, it is not readily apparent that all treatment records from the Army Reserve service have been obtained. Given that the Veteran was apparently retired in 2004, which is before the expiration of his most recent enlistment contract, it is possible that such an explosion, if verified, was, at least in part, responsible for an early separation (independent of the Veteran having reached age 60). Such a finding might, potentially, be very relevant to the claims for service connection. It is asked that all reserve units in which the Veteran served be queried to determine as to if additional medical records exist. In this regard, it is noted that, in 2002, the Veteran was not assigned to 80th Training Command Headquarters (the unit queried by the RO), but apparently served in a smaller, subordinate command. Records reflect that the Veteran served with Alpha Company, 2/319th, 7th BDE 80th DIV (IT). This subordinate unit should be specifically queried, as well as any other appropriate Army Reserve agency so as to obtain outstanding treatment and personnel records. It is noted that the Veteran has stated that he may, potentially, have some records of his treatment at private facilities per the direction of Army Reserve authorities. He is to be encouraged to submit those records, as it will expedite the processing of his claims. In this regard, it is important for the Veteran and his representative to understand that the search for records is not a one-way street. The VA needs help to obtain records from these sources and the Veteran is in the very best position to obtain these records in order to expedite his own case (he knows his own treatment and his own record). Without his help, in light of his complex service history, delay in the adjudication of his case is inevitable. He should contact these units and health care providers himself and help the RO/AMC to locate these records without delay. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate service department agencies, to include the relevant Army Reserve agencies/units (in particular, Alpha Company, 2/319th, 7th BDE 80th DIV (IT)) to determine if there are outstanding service treatment records from 2001 onward. Records of medical examinations (including private examinations directed via the authority of the Army Reserve), to include the one conducted in January 2004 at the Valley Medical Associated in Lewisburg, West Virginia, should be obtained. Additionally, all service personnel records for the Veteran, to include all records for reserve component service, should be obtained and associated with the claims file. It should be specifically clarified as to when the Veteran completed his service (ACDUTRA/INACDUTRA) with the Army Reserve. Should no such records be available after an exhaustive search, annotate the claims file to reflect such a fact. 2. The Veteran is to be advised that should he have any records of treatment in his possession, private or military, that he should submit copies of this treatment to VA at his earliest convenience. Additionally, should he not have records, he should inform VA of the names, addresses, and approximate dates of treatment for any private treatment (to include treatment directed by the Army Reserve) to VA along with the appropriate waivers. Should records be identified, VA must make attempts to secure them. If records cannot be secured, the record should be so annotated. If the Veteran indicates that he has obtained all pertinent records from a source, he should clearly indicate this in order to avoid duplication of effort with the RO/AMC. 3. Upon completion of the above-directed development, re-adjudicate the Veteran's claims. Should the claims remain denied, issue an appropriate supplemental statement of the case and forward the claims to the Board for adjudication. The appellant 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs