Citation Nr: 1338131 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 05-18 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left wrist disability. 2. Entitlement to an increased initial evaluation for bilateral pes planovalgus, rated as noncompensable prior to November 24, 2009, and as 10 percent disabling since November 24, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active service from September 1997 to March 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that, in pertinent part, denied service connection for bilateral wrist disability as well as granted service connection for bilateral pes planovalgus and assigned a noncompensable initial evaluation, effective March 9, 2004. In a September 2012 decision, the Board granted an initial evaluation of 10 percent, but no higher, for bilateral pes planovalgus effective November 24, 2009. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (Joint Motion) in May 2013, which indicated that the Board erred by not considering the potential application of Diagnostic Code 5284 for the Veteran's service-connected bilateral pes planovalgus, claimed as plantar fasciitis with pes planus, and whether the Veteran could obtain a separate rating for each foot. By order dated in May 2013, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. The Board notes that its September 2012 decision also remanded the issue of entitlement to service connection for a right wrist disability for additional development. On remand, the AMC granted service connection for a right wrist condition in a March 2013 rating decision and assigned a 10 percent rating effective March 9, 2004, which represented a total grant of benefits sought on appeal for that issue. As such, that issue is considered resolved in full and is no longer on appeal. In a December 2007 remand, the Board noted that the Veteran had requested a Board hearing on her substantive appeal. She was notified of a hearing scheduled for October 2006 in a September 2006 letter. However, in a letter received at the RO in October 2006, the Veteran requested that her hearing be rescheduled for another date. As there was no evidence that the RO had attempted to reschedule the Veteran's hearing, the Board directed that the RO contact the Veteran and advise her that, per her October 2006 request, she could present testimony at a personal hearing at the local RO before a Veterans Law Judge. In the November 2010 remand, the Board noted that the Veteran was never properly notified of her right to a hearing and remanded the claims. In May 2012, the Board sent the Veteran a letter asking her to clarify whether she still wanted to appear at a hearing before the Board. An August 2012 letter from the Veteran's representative reflected that she verbally advised her representative that she did not desire to have a hearing before the Board. Thus, the Veteran's hearing request is deemed to be withdrawn. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for a left wrist disability. The Board's September 2012 decision remanded the issue of entitlement to service connection for a left wrist disability for further development. Specifically, the remand directed the Appeals Management Center (AMC) to schedule the Veteran for a VA examination to determine the nature, extent, and etiology of any right and/or left wrist disability that may be present. The Board's September 2012 remand also explicitly referenced several documents from the claims file with respect to the Veteran's left wrist, to include an April 2009 VA treatment record indicating that the Veteran had pain in both wrists with carpel tunnel syndrome, as well as a December 2003 private treatment note reflecting that she reported having similar pain in the left wrist that was worsening. Significantly, the December 2003 private treatment note was recorded during the Veteran's period of active duty service, from September 1997 to March 2004. Pursuant to the Board's September 2012 remand instructions, the Veteran was provided with a VA wrist examination and peripheral nerves examination in November 2012. The VA peripheral nerves examination report indicated that the Veteran had carpal tunnel syndrome of the right hand which manifested in mild, incomplete paralysis of the median nerve, but did not diagnose the Veteran as having similar symptomatology in the left hand. Moreover, the VA wrist examination report diagnosed the Veteran as having bilateral wrist strain, but opined that the Veteran's left wrist disability was less likely than not related to service because there was no evidence of treatment for a chronic left wrist disability in the military or after discharge. In support of this opinion, the examiner listed the extensive in-service treatment that the Veteran underwent for right wrist symptomatology, but neglected to cite the December 2003 private treatment note in which the Veteran indicated having similar symptomatology in the left hand that was worsening. Again, the Board emphasizes that this December 2003 private treatment note was recorded during the Veteran's period of active duty service. An opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, because the November 2012 VA wrist examiner incorrectly relied on a finding that there "is no evidence of treatment for a chronic left wrist condition in the military or after her discharge from the military," the opinion has little probative value. The probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran asserts that service connection is warranted for a left wrist disability which she believes developed in service as a result of typing, writing, playing sports, and doing pushups. She has reported intermittent pain in her left wrist since then. The Veteran's service personnel records confirm that she was a communications operator, and the December 2003 private treatment note indicated that she was experiencing left wrist symptomatology similar to her service-connected right wrist symptomatology which was worsening. This evidence and other subsequent lay statements by the Veteran must be taken into account by the VA examiner on remand. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). In addition, previous VA treatment records indicated that the Veteran was diagnosed as having carpal tunnel syndrome in both her right and left wrists. However, the November 2012 VA peripheral nerves examiner only diagnosed her as having carpal tunnel syndrome of the right hand. The requirement of a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). The November 2012 VA peripheral nerves examiner was not clear as to whether the prior indications of carpal tunnel syndrome of the left wrist were mere misdiagnoses or whether carpal tunnel syndrome had resolved prior to the time of the November 2012 examination. This should also be addressed by the VA examiner on remand. The Veteran also seeks entitlement to an increased initial evaluation for bilateral pes planovalgus, rated as noncompensable prior to November 24, 2009, and as 10 percent disabling since November 24, 2009. The Board granted the 10 percent evaluation effective November 24, 2009, in its September 2012 decision, but declined to assign a compensable rating prior to that time. With respect to this issue, the May 2013 Joint Motion indicated that "it cannot be discerned if the Board considered that Appellant is service-connected for pes planovalgus that is also 'claimed as plantar fasciitis with pes planus.'" Specifically, the Joint Motion directed the Board to consider the potential application of Diagnostic Code 5284 for the Veteran's service-connected bilateral pes planovalgus claimed as plantar fasciitis with pes planus, and whether the Veteran could obtain a separate rating for each foot. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2013). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2013). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Here, in the November 2009 VA feet examination relied upon by the Board in its September 2012 decision, the examiner diagnosed the Veteran as having mild, bilateral pes planus. However, the examiner continued that the "Veteran has additional foot deficits in addition to the pes planus. The listed restrictions are related to all foot deficits." As such, the question of whether the Veteran is entitled to a separate or increased rating for plantar fasciitis in addition to his currently assigned rating for foot disability requires that another VA examination be obtained to determine the current level of severity of the Veteran's plantar fasciitis. If the examiner finds unique symptomatology related to plantar fasciitis which can be separated from the service-connected bilateral pes planovalgus, then the possibility exists that an additional foot disorder might also be service connected. Therefore, this issue must also be remanded in order to obtain a VA examination to better describe the Veteran's various foot disabilities and their separate and distinct manifestations, if any. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature, extent and etiology of any left wrist disability demonstrated at any time during the appeal period from March 9, 2004 to date, to include carpal tunnel syndrome, arthritis, and tendosynovitis. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. The VA examiner should provide an opinion as to whether any left wrist disability demonstrated at any time since service, even if later resolved, is at least as likely as not (likelihood of at least 50 percent) related to service. In rendering the requested opinion, the examiner is asked to explicitly reference the Veteran's lay statements regarding continuity of left wrist symptomatology since service as well as the December 2003 private treatment note which documented worsening left wrist pain during service that was similar in nature to the pain associated with her service-connected right wrist disability. If carpal tunnel syndrome of the left wrist is not found on current clinical examination, the examiner must provide an opinion as to whether carpal tunnel syndrome of the left wrist was medically shown at any time during the period of appeal, from March 2004 to the present. Specifically, the examiner is asked to comment upon the diagnoses of left wrist carpal tunnel syndrome in the VA treatment records, to include whether any such diagnosed disability has resolved. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 2. Schedule the Veteran for a VA examination to determine the current severity of her service-connected bilateral pes planovalgus, claimed as bilateral plantar fasciitis with pes planus. The claims file and a copy of this remand must be made available to and reviewed by the VA clinician. The clinician must provide accurate and fully descriptive assessments of all symptomatology of the service-connected bilateral foot disability. The clinician is asked to determine whether the Veteran suffers from symptomatology that can be separated as distinct disabilities comprising the service-connected bilateral pes planovalgus, to include plantar fasciitis and pes planus. Any additional disorders of the feet should be identified with manifestations of service-connected foot disability clinically distinguished from manifestations of nonservice-connected foot disability, to the extent possible. 3. Thereafter, readjudicate the issues on appeal, to include whether the service connected bilateral foot disability should be provided separate ratings for each foot, and/or for plantar fasciitis and pes planus, without violation of 38 C.F.R. § 4.14. If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).