Citation Nr: 1321032 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 11-15 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for hemorrhoids. 3. Entitlement to an initial compensable rating for bilateral pes planus prior to April 17, 2013. 4. Entitlement to a higher initial rating for bilateral pes planus, currently evaluated as 10 percent disabling. (The issue of entitlement to waiver of indebtedness in the calculated amount of $31,612.00 is the subject of a separate decision by the Board of Veterans' Appeals). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal a February 2010 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral pes planus, rated noncompensable, effective February 20, 2009. In an April 2013 rating decision, the RO granted an increased (10 percent) rating for the Veteran's bilateral pes planus, effective April 17, 2013. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in an October 2012 Travel Board hearing; a transcript of the hearing is associated with the Veteran's claims file. This case was previously before the Board in February 2013 when, in part, the Board reopened the Veteran's claim for service connection for a left knee disorder, and remanded the case for additional development. The Board's February 2013 remand referred the claims of entitlement to an increased rating for a right knee disorder. As it does not appear that any action has been taken regarding this issue, it is again referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for a left knee disorder 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 hemorrhoids had their onset in service. 2. Throughout the appeal period, resolving all reasonable doubt in the Veteran's favor, the Veteran's bilateral pes planus has been manifested by no more than moderate impairment. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for hemorrhoids are met. . 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for a 10 percent disability rating for bilateral pes planus, and no higher, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (Code) 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. VA's duty to notify and assist As to the Veteran's hemorrhoids claim, this decision grants service connection for hemorrhoids, which represents a complete a grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify or assist is necessary. Regarding the Veteran's bilateral pes planus claim, it arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, and additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist a veteran in the development of a claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records, VA treatment records and private treatment records. The Veteran had VA examinations in January 2010 and April 2013 regarding his bilateral pes planus claim. Findings from the examination reports are adequate for the purposes of deciding the claims on appeal decided herein. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims and no further assistance to develop evidence is required. B. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims and in Virtual VA (i.e., VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service Connection for Hemorrhoids Establishing service connection generally requires medical or, in certain circumstances, lay 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and address the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by the veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodrigues, 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."). Service treatment records do not show any complaint, diagnosis, or treatment related to hemorrhoids. On May 1980 service separation examination, the Veteran's anus and rectum were normal on clinical evaluation; he denied having or having had piles or rectal disease. Post-service treatment records include a July 1982 report from Brackenridge Hospital wherein rectal physical examination of the Veteran revealed guaiac negative stool; there was no mention of hemorrhoids. At the October 2012 Travel Board hearing, the Veteran testified that he began taking over-the-counter medication for his hemorrhoids during active service. He denied ever receiving any medical treatment for hemorrhoids during his active service, or informing anyone of his hemorrhoids other than his ex-wife. The Veteran further testified that his hemorrhoids continued after service, and he started experiencing bleeding less than one year after his separation from service. On April 2013 VA examination (pursuant to the Board's February 2013 remand instructions), the Veteran reported his hemorrhoids began during service in the 1970's and were not treated until the 1980's. He further reported he has episodic bright red blood on toilet paper twice per week, usually when constipated. Physical examination revealed small or moderate external hemorrhoids. The diagnosis was mild external hemorrhoids. The examiner noted the Veteran's May 1980 separation examination, as well as the Veteran's account of recurrent hemorrhoid symptoms since active service. However, after a review of the claims file, the examiner found that there was no objective documented medical evidence the Veteran's hemorrhoids had their onset while on active duty/military service. "[T]herefore it is less likely than not this [V]eteran's hemorrhoids had their onset while on active duty/military service." After a review of the evidence of record, the Board finds that entitlement to service connection for hemorrhoids is warranted. While the Veteran's service treatment records show no complaint, diagnosis, or treatment related to hemorrhoids, he has testified that he began taking over-the-counter medication for his hemorrhoids during active service, and that his hemorrhoids continued after service. The Board finds the Veteran's report of taking over-the-counter medication for his hemorrhoids during service and continuously having hemorrhoids since service both competent and credible. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In light of the foregoing, the Board finds that service connection for hemorrhoids is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Higher Rating for Pes Planus Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Pes planus is rated under Diagnostic Code 5276, which provides that a 0 percent rating is warranted for mild flatfoot with symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. 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 20 percent if unilateral, and 30 percent if bilateral. As noted above, this claim arises from a February 2010 rating decision that granted service connection for bilateral pes planus, rated noncompensable, effective February 20, 2009. An interim, April 2013, rating decision granted an increased (10 percent) disability rating, effective April 17, 2013. The Board acknowledges the Veteran's testimony before the undersigned VLJ and statements and assertions in the clinical evidence of record that he experiences pain in his feet. The Board finds that this evidence is credible and probative. Having considered the evidence and resolving all reasonable doubt in the Veteran's favor, the Board finds that a 10 percent disability rating, but no more, is warranted throughout the appeal. 38 C.F.R. § 3.102. As reflected on January 2010 VA examination, the Veteran has bilateral pes planus. The examination report notes the Veteran's complaint of pain, weakness and fatigability at the end of the day with prolonged standing and walking. He was also noted to be using shoe inserts. On physical examination, there was flattening of the medial arch area with tenderness throughout the area. November 2010 VA treatment records also show the Veteran had been issued custom inserts and powerstep arch supports. Resolving all reasonable doubt in the Veteran's favor, the Board finds such is consistent with moderate bilateral pes planus. However, the preponderance of the evidence is against a finding that the Veteran's bilateral pes planus is of a severity reflective of/consistent with severe bilateral pes planus. As provided above, severe flatfoot is manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, and is rated 20 percent if unilateral, and 30 percent if bilateral. January 2010 VA examination revealed no evidence of painful motion, edema, weakness, or instability of either foot, as well as no evidence of abnormal weight-bearing or pain on manipulation of the Achilles tendon. Notably, there was evidence of 5 degree valgus deformity bilaterally of the Achilles tendon. However, x-rays of the feet were normal. In addition, a July 2010 VA treatment report noted the Veteran had a normal gait and there was no evidence of foot pains on walking (contrary to the Veteran's assertion of being unable to walk from the parking lot to his local YMCA). October 2012 VA x-rays of the feet revealed bilateral mild pes planus. On April 2013 VA examination, the Veteran complained of chronic mild bilateral foot pain and pain on use of the feet. While there was evidence of mild pain on manipulation of the feet, there was no evidence of swelling on use of the feet, characteristic calluses, or extreme tenderness of the plantar surface of either foot. In addition, while there was evidence of decreased longitudinal arch height on weight-bearing, there was no evidence of marked deformity of either foot, marked pronation of either foot, that the weight-bearing line fell over or medial to the great toe, inward bowing of the Achilles tendon, or marked inward displacement and severe spasm of the Achilles tendon on manipulation. Moreover, as the rating criteria provide that a 10 percent disability rating is warranted for moderate pes planus, whether bilateral or unilateral, there is no basis for assigning a separate 10 percent rating for each foot. Consequently, the criteria for a higher disability rating under Code 5276 is not warranted at any time during the appeal period. Accordingly, a 10 percent rating, but no more, is granted throughout the appeal period. In reaching a determination that a rating in excess of 10 percent is not warranted at any time during the appeal period, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds no other provision upon which to assign an evaluation higher than the 10 percent rating assigned throughout the appeal period by this decision. In this regard, the Board notes that the April 2013 VA examination included a diagnosis of hallux valgus of the left foot. Under Code 5280, a 10 percent rating is warranted for unilateral hallux valgus if severe or if operated on with resection of the metatarsal head. However, on April 2013 VA examination, it was found that there was minimal hallux valgus, and there is no evidence the Veteran has undergone surgery for such and that such resulted in resection of the metatarsal head. Hence, Code 5280 is of no benefit to the Veteran in his claim. The Board has also considered whether a rating in excess of 10 percent is warranted under Code 5284. Code 5284 provides for a 10 percent rating for moderate foot injuries, other. The Board finds this Code is not applicable to the Veteran as the Code is designed for foot injuries not otherwise enumerated under the rating schedule. However, in this case, the Veteran is currently rated under Code 5276 because that is the disability with which he has been diagnosed and for which service connection has been established. Hence, to rate the Veteran's bilateral pes planus under Code 5284 would be against the purpose of the rating schedule and the designated diagnostic codes. Thus, the evidence supports a 10 percent disability rating for the Veteran's bilateral pes planus, but no higher, throughout the appeal period. Consequently, and to that extent, the benefit sought on appeal is granted. Extraschedular Evaluation The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Under Thun v. Peake, 22 Vet. App. 111 (2008), 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 that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, 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 the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the rating criteria for the Veteran's service-connected bilateral pes planus reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms, which have not been shown. The medical evidence does not show that the Veteran's service-connected bilateral pes planus cause unusual factors such as frequent hospitalizations or marked interference with employment beyond that contemplated by the rating schedule. The rating criteria are therefore adequate to evaluate the Veteran's bilateral pes planus. Consequently, referral for extraschedular consideration is not warranted. Finally, the Court has held that entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, the Board has found no evidence wherein this issue has been raised by the record with respect to his bilateral pes planus and, as such, need not be further addressed. ORDER Service connection for hemorrhoids is granted. Subject to the laws and regulations governing payment of monetary benefits, a 10 percent disability rating for bilateral pes planus is granted effective February 20, 2009. An initial evaluation in excess of 10 percent for bilateral pes planus is denied. REMAND The Veteran also seeks service connection for a left knee disorder, to include as secondary to his service-connected right knee disorder. The evidence of record shows that in January 1985, the Veteran injured his left knee while working with the United States Postal Service as a letter carrier, and underwent surgery in January 1985. Subsequently, the Veteran again underwent left knee surgery in 1989. As indicated in the Board's February 2013 remand, the Veteran contends that his January 1985 left knee injury was caused by his tendency to favor his service-connected right knee disorder. Accordingly, the Board found that a VA examination was warranted, to include whether the Veteran's left knee disorder was caused or permanently worsened by his service-connected right knee disorder. On April 2013 VA examination, it was opined, in part, that there was "no objective medical evidence the [V]eteran's left knee condition had its onset during the Veteran's active service, or was caused or permanently worsened by his service-connected right knee chondromalacia." Although to one trained in medicine the basis for this conclusion may be obvious from the record, case law essentially requires the basis for opinions provided to be expressed in order to afford them evidentiary weight. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"); see also Miller v. West, 11 Vet. App. 345, 348 (1998). The necessary explanation for the examiner's conclusion should be sought on remand. Finally, any outstanding pertinent VA treatment records should either be made accessible on Virtual VA or be printed and added to the Veteran's claims file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records since March 2013. 2. The RO should arrange for the Veteran's claims file to be forwarded to the April 2013 VA examiner for review and a more thoroughly explained opinion as to why the Veteran's left knee disorder is not considered secondary to his service-connected right knee chondromalacia. If the April 2013 examiner is unavailable, the Veteran's claims file should be forwarded to an appropriate physician for review and an opinion as to whether it is at least as likely as not that the Veteran's left knee disorder is related to, or otherwise aggravated by, his service-connected right knee chondromalacia. The examiner must explain the rationale for all opinions given. 3. The RO should then readjudicate the Veteran's claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs