Citation Nr: 1323819 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 08-26 128A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to a compensable evaluation for hallux valgus of the left foot prior to January 3, 2012, and in excess of 10 percent after January 3, 2012. 3. Entitlement to a compensable evaluation for bilateral pes planus with plantar fasciitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to September 2002. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. An April 2007 rating decision denied service connection for sleep apnea. A November 2010 rating decision denied compensable evaluations for hallux valgus of the left foot and for bilateral pes planus with plantar fasciitis. Subsequently, an April 2013 rating decision increased the evaluation of the service connected hallux valgus of the left foot to 10 percent, effective from January 3, 2012. The issue has been restated to reflect the currently assigned staged evaluation for that disability. FINDINGS OF FACT 1. Sleep apnea had its onset during service. 2. The Veteran underwent a left bunionectomy on January 3, 2012; prior to January 3, 2012, his hallux valgus disability of the left foot was not severe. 3. The Veteran's bilateral pes planus with plantar fasciitis is no more than moderate in nature, manifested by pain on manipulation and use; there is no objective evidence of marked deformity, swelling on use, or characteristic callosities on either foot. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for a compensable evaluation for hallux valgus of the left foot prior to January 3, 2012, and in excess of 10 percent after January 3, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5280 (2012). 3. The criteria for a 10 percent evaluation, and no higher, for bilateral pes planus with plantar fasciitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The Board is granting in full the benefit sought on appeal as to the issue of entitlement to service connection for sleep apnea. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. With respect to the increased ratings claims, a September 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claims were subsequently readjudicated, most recently in an April 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any additional treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in October 2010 and October 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examinations are adequate because the Veteran's symptoms were described in sufficient detail so that the Board's evaluation of the disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that he has sleep apnea that began during his period of active service. He has reported that he was told that he snored loudly during his period of service. The Veteran submitted lay statements from two men who served with him and recalled his loud snoring and breathing difficulties during that period. One of these men, who identified himself as a barracks roommate of the Veteran, recalled the Veteran would, at times, seem to stop breathing during the course of the night. VA treatment records show that the Veteran underwent a sleep study and was diagnosed with sleep apnea in August 2005. He was issued a CPAP machine. On VA examination in February 2007 the Veteran reported that when he entered the service he had no problems with snoring. He noted that during service various roommates had told him he snored badly. The examiner noted that the Veteran had moderately severe sleep apnea, "by history most likely developed while on active duty." A current disability has been established as sleep apnea. The Veteran and his witnesses have credibly and competently reported that his sleep problems, including excessive snoring, were observed during service. Thus, an in-service event is established. As a current disability and an in-service event have been established, the only remaining requirement is a causal nexus between the two. The Veteran has competently and credibly reported a continuity of similar sleep symptoms subsequent to discharge from service. His report is corroborated by the evidence of record which shows that a sleep study documented sleep impairment and resulted in a diagnosis of sleep apnea within three years of his separation from service. In its role as a finder of fact, the Board finds the lay accounts are both competent and credible. Given competent lay evidence showing that the Veteran exhibited sleep symptoms during service and that these symptoms continued after service with a diagnosis shortly thereafter, as well as a favorable medical opinion, service connection for sleep apnea is warranted. Increased Ratings Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2012). The Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities rated on the basis of limitation of motion, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Hallux Valgus, Left Foot Diagnostic Code 5280 contemplates hallux valgus. Unilateral hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is also rated 10 percent disabling. The maximum schedular rating allowed under this code is 10 percent. The RO has separately rated the Veteran's service-connected left foot hallux valgus as zero percent (noncompensably) disabling prior to January 3, 2012, and as 10-percent disabling thereafter, under Diagnostic Code 5280. On VA examination in October 2010, the examiner noted mild left hallux valgus. There was no evidence of painful motion, swelling, instability, weakness, or abnormal weight bearing of the left foot. The Veteran was tender to palpation in the mid-arch. The Veteran underwent left bunionectomy on January 3, 2012. On VA examination in October 2012, the Veteran reported pain in his left big toe and the bottom of his foot. He used Ibuprofen for treatment. The examiner identified mild or moderate symptoms of hallux valgus. No other foot conditions were identified other than pes planus. X-rays showed evidence of prior bunionectomy at the left distal great toe metatarsal with hardware projected over the distal great toe metatarsal; no hardware failure or loosening was evident. Prior to January 3, 2012, the Veteran had not undergone metatarsal head resection. During the October 2010 VA examination, the Veteran's hallux valgus condition was described as mild and there was no showing of functional limitations in terms of standing or walking associated with his left hallux valgus. The criteria for a compensable rating were not met for left hallux valgus prior to January 3, 2012. The Veteran has been assigned a 10 percent rating from the date of his left bunionectomy. Because a 10 percent rating is the maximum schedular rating available under Diagnostic Code 5280, a higher rating is not available under such code. Additionally, where, as here, a disability has been rated at the maximum level provided by the diagnostic code under which it is rated, the considerations of DeLuca do not apply. See Johnston v. Brown, 10 Vet. App. 80 (1997) . The Board considered whether other diagnostic codes are applicable to either the Veteran's hallux valgus; however, he is not service-connected for a weak foot, claw foot, metatarsalgia, hallux rigidus, hammer toes, malunion or nonunion of the tarsal or metatarsal bones, or a foot injury, nor are these disabilities shown by the evidence. Thus, Diagnostic Codes 5277, 5278, 5279, 5281, 5282, 5283, and 5284 are inapplicable. The overall disability picture for the Veteran's left hallux valgus do not more closely approximate the criteria for higher ratings under the applicable Diagnostic Code. The preponderance of the evidence is against the claims; there is no doubt to be resolved; and increased ratings are not warranted. 38 C.F.R. § 4.3. Bilateral Pes Planus Diagnostic Code 5276 contemplates acquired flatfoot, also referred to as pes planus. A noncompensable rating is assigned for mild flatfoot where the symptoms are relieved by a built-up shoe or arch support. A 10 percent disability rating is assigned for unilateral or bilateral moderate flatfoot, where there is evidence that the weight bearing line is over or medial to the great toe, there is inward bowing of the tendo achillis, and pain on manipulation and use of the foot or feet. Where flatfoot is severe and there is objective evidence of a marked deformity (pronation, abduction, etc.), pain on manipulation and use is accentuated, there is indication of swelling on use, and characteristic callosities, a higher rating of 30 percent disability rating is assigned for the bilateral feet. A 50 percent disability rating is assigned for bilateral pronounced flatfoot. Pronounced flatfoot must reveal marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and is not improved by orthopedic shoes or appliances. On VA examination in October 2010, the Veteran reported worsening bilateral foot pain. The examiner noted there was no swelling, heat, redness, fatigability, or weakness of either foot. The examiner noted arch pain with standing and walking, stiffness, and lack of endurance while standing or walking. The Veteran was able to stand for up to one hour, and able to walk more than one quarter mile and less than one mile. He used orthotic inserts for his bilateral pes planus with fair results. On examination of each foot there was tenderness to palpation of the feet in mid arch. There was inward bowing on weight bearing. There was no midfoot malalignment or pronation. Arch was present on non weight-bearing but not on weight-bearing. The location of the weight-bearing line was medial to the great toe. The examiner diagnosed mild bilateral pes planus. The Veteran was noted to be employed full time and to have missed no time from work in the last 12 months. On VA examination in October 2012, the Veteran reported constant pain in the arches of his feet. He reported his standing limit was 15 minutes and walking limit was one football field. The examiner noted pain on use of the feet but not pain on manipulation of the feet. There was no swelling on use or characteristic calluses. The examiner stated that the Veteran's symptoms were relieved with arch supports or orthotics. There was no extreme tenderness of plantar surfaces. There was no decreased longitudinal arch height on weight-bearing and no marked pronation of the feet. The weight-bearing line did not fall over or medial to the great toe. There was no inward bowing of the Achilles tendon. The examiner noted that the Veteran occasionally used orthotics. His bilateral pes planus did not affect his ability to work; he worked full-time for VA in Tuskegee, Alabama. The examination results show that the Veteran's bilateral pes planus disability is primarily manifested by subjective complaints of pain on use and manipulation. The October 2010 VA examiner noted inward bowing on weight bearing while the October 2012 VA examiner did not. The October 2010 examination noted that the Veteran used orthotic inserts for his bilateral pes planus with fair results, while the October 2012 VA examination noted the Veteran's symptoms were relieved with arch supports or orthotics. However, the Veteran reported constant pain in the arches of his feet on the October 2012 examination. The overall disability picture supports a 10 percent rating for bilateral pes planus as it does not appear that the Veteran's symptoms are completely relieved by his orthotics. The preponderance of the evidence is against a rating in excess of 10 percent; there is no doubt to be resolved; and a rating in excess of 10 percent is not warranted. The cumulative objective evidence, to include both October 2010 and October 2012 VA examinations, does not reflect a gait abnormality, marked deformity, swelling on use, or characteristic callosities, such that a rating in excess of 10 percent is warranted. In the absence of objective evidence of severe bilateral pes planus, a the criteria for a higher rating of 30 percent under Diagnostic Code 5276 have not been met or more nearly approximated. Because the criteria set forth in Diagnostic Code 5276 are not based upon limitation of motion, it is not necessary to consider 38 C.F.R. §§ 4.40 and 4.45. Extra-Schedular Consideration The Board considered whether referral for an extraschedular rating is appropriate. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's manifestations of bilateral pes planus, to include, pain on use and manipulation and tenderness of the plantar surfaces of the feet, are contemplated by the applicable schedular criteria. Similarly, the manifestations of the Veteran's left hallux valgus, including the degree of severity of the condition, are contemplated by the applicable schedular criteria. There is nothing in the examination reports or other records that suggest the symptoms are exceptional or outside the realm of the rating criteria. The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not alleged and the evidence does not suggest that he is incapable of obtaining and maintaining substantially gainful employment because of his service-connected pes planus and/or hallux valgus. During the October 2010 and October 2012 VA compensation examinations, he affirmed that he is currently employed. Therefore a TDIU claim as concerning his pes planus and/or hallux valgus has not been inferred. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001). See, too, Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (requiring cogent evidence of unemployability). ORDER Service connection for sleep apnea is granted. Entitlement to a compensable evaluation for hallux valgus of the left foot prior to January 3, 2012, and in excess of 10 percent after January 3, 2012 is denied. Entitlement to a 10 percent evaluation, and no higher, for bilateral pes planus with plantar fasciitis is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs