Citation Nr: 1602109 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 07-15 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for residuals of stress fractures, bilateral legs. 2. Entitlement to an initial compensable rating for plantar fasciitis, right foot. 3. Entitlement to a higher initial rating for a right ankle disability, rated 0 percent disabling prior to February 13, 2012, and 10 percent disabling from February 13, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his son ATTORNEY FOR THE BOARD L. Driever, Counsel INTRODUCTION The Veteran had active service in the United States Army from November 1970 to November 1992, including in the Southwest Asia Theater of Operations from September 1990 to April 1991. These claims come before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision, in which the Department of Veterans Affairs Regional Office (RO) in Denver, Colorado, denied service connection for stress fractures, bilateral legs, with leg pain, granted service connection for a right ankle medial malleolus injury, assigned that disability an initial noncompensable (0 percent) rating, granted service connection for plantar fasciitis, right foot, and assigned that disability an initial 0 percent rating, from December 31, 2003. (In the same decision, the RO also denied service connection for plantar fasciitis of the left foot, and right knee and low back disabilities, but in Board, rating and Decision Review Officer decisions dated June 2011, January 2012 and March 2015, VA granted these claims. They are thus no longer before the Board for appellate review.) The Veteran and his son testified in support of this appeal during a hearing held at the RO before the undersigned Veterans Law Judge in June 2011. Later that month and again in January 2012 and March 2014, the Board remanded these claims to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. While in remand status, by rating decision dated October 2012, AMC increased the rating assigned the Veteran's right ankle disability to 10 percent, from February 13, 2012. VA processed this appeal electronically, utilizing Virtual VA and Veterans Benefits Management System (VBMS), VA's paperless claims processing systems. Review of this appeal therefore contemplates both electronic records. FINDINGS OF FACT 1. The Veteran does not currently have residuals of an in-service bilateral stress fracture. 2. Prior to December 16, 2014, plantar fasciitis of the Veteran's right foot was mild, relieved by arch support. 3. Since December 16, 2014, plantar fasciitis of the Veteran's right foot has been mild to moderate, causing a marked deformity with the weight-bearing line over or medial to the great toe and pain on manipulation and use of the foot. 4. Prior to February 13, 2012, the Veteran's right ankle disability manifested as intermittent pain and swelling with no limitation of motion, compensable or otherwise. 5. Since February 13, 2012, the Veteran's right ankle disability has worsened, causing painful, marked limitation of motion and instability. CONCLUSIONS OF LAW 1. Residuals of stress fractures, bilateral legs, were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 2. The criteria for entitlement to an initial 10 percent rating for plantar fasciitis, right foot, prior to December 16, 2014, are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Codes (DCs) 5099-5276 (2015). 3. The criteria for entitlement to an initial 10 percent rating for plantar fasciitis, right foot, from December 16, 2014, are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Codes (DCs) 5099-5276 (2015). 4. The criteria for entitlement to an initial compensable rating for a right ankle disability, prior to February 13, 2012, are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2015). 5. The criteria for entitlement to an initial 20 percent rating for a right ankle disability, from February 13, 2012, are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Specifically, VA must notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim, the portion of the evidence the claimant is to provide on his own behalf, and the portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. As well, VA must assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination and/or obtaining a medical opinion. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). The Veteran in this case does not assert that VA violated its duty to notify, including during the June 2011 hearing, see Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), that there are any outstanding records that VA should obtain on his behalf, or that he should be afforded another VA examination based on the inadequacy of any examination he underwent during the course of this appeal. No further notice or assistance is thus required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining that claimant has the burden of proof of showing there has been an error in developing his claim, but also beyond that, showing it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless). II. Analysis A. Service Connection - Residuals of Stress Fractures The Veteran seeks a grant of service connection on a direct basis for all existing conditions related to the stress fractures he experienced during active service. According to written statements he submitted during the course of this appeal, his June 2011 hearing testimony, his spouse's January 2005 written statement and December 2009, January 2010 and March 2010 written statements of an aquaintance, co-worker and fellow veteran, the Veteran began experiencing problems with his legs when assigned to Germany, problems that he believes developed secondary to the pressure being placed on his legs during physical training. In 1981, he allegedly fell on ice while participating in physical training, aggravating his leg problems and necessitated physical therapy. In 1986, he was assigned to Foot Hood, where doctors purportedly discovered fractures in both of his legs, necessitating additional physical therapy. Allegedly, prior to these problems, the Veteran was quite active and athletic, often running, but due to these problems, can no longer run; as such, he has gained weight and experienced increased leg and hip pain. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Generally, to prevail in a claim for service connection for a condition claimed to be directly related to service, 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. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2015). 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) (2015). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d 1372. Here, the record fails to satisfy all necessary elements of a service connection claim, most importantly, the prerequisite current disability element of such a claim. The Veteran served on active duty from November 1970 to November 1992. As alleged, during such service, he experienced a stress fracture. More specifically, in the 1980s, he sustained a back injury, after which he began reporting leg complaints. These complaints led to testing, including bone scans in February and May 1987, which showed increased uptake in the cortices of the tibias, bilaterally, knees, feet and ankle, left greater than right, and inferior to the tibial tuberosity. These findings suggested a stress fracture, left proximal tibia, superimposed on generalized stress-related changes throughout both legs. The Veteran's complaints necessitated physical therapy, after which the Veteran again mentioned pain in his lower extremities. During a June 1989 E-6 examination, the Veteran reported swollen painful joints and the examiner noted bilateral leg pain. During a June 1992 E-7 examination, the Veteran reported pain in the lower extremities, but affecting his knees only. Once discharged from service, the Veteran sought care from VA and private providers, including for complaints involving his lower extremities, to include his hips, thighs, knees, ankles and feet. He also underwent VA examinations of his legs. During one such examination conducted in June 2004, he reported that he had had stress fractures in both legs, which recurred if he engaged in hard-impact activities or hiked. X-rays showed degenerative changes in the tibia and fibula and a possible osteochondroma of the left tibia, but based on the history, these x-rays and a physical evaluation, the examiner found there was insufficient evidence to diagnose an acute or chronic condition of the legs, let alone residuals of stress fractures. During a treatment visit in October 2005, the Veteran reported a history of stress fractures and told the doctor that he wanted him to look at evidence of the fractures, which the Veteran had left at home. The doctor refrained from confirming the fractures or noting any residuals thereof. From 2009 to 2015, the Veteran occasionally reported muscle and joint pain during treatment visits and underwent in excess of five VA examinations, but no treatment provider or VA examiner diagnosed stress fractures or residuals thereof. Rather, to the extent medical professionals objectively confirmed leg pain, they attributed it to other medical conditions, including diabetes-related peripheral neuropathy, venous insufficiency, left hip bursitis, lumbar radiculopathy, low back sciatica, left L4-5 lateral stenosis with neurogenic claudication, and iliotibial band syndrome. During VA examinations conducted in February 2012 and June 2013, examiners acknowledged an in-service stress fracture but specifically found no evidence of stress fractures or residuals thereof on examination or x-rays. One indicated that the stress fracture had resolved. The Veteran's assertions thus represent the only evidence of record diagnosing residuals of a stress fracture. Unfortunately these assertions may not be considered competent. The Veteran is competent to report that he felt leg pain during the course of this appeal as this feeling is capable of lay observation. Unfortunately, however, he does not possess a recognized degree of medical knowledge to attribute this pain to an in-service stress fracture or to diagnose other residuals of a stress fracture. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is not competent to offer an opinion regarding a medical question when that question may not be resolved through lay observation). In the absence of medical evidence diagnosing residuals of an in-service stress fracture, the Board concludes that such a disability was not incurred in or aggravated by service. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the evidence is not in relative equipoise. Rather, a preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application and the claim must be denied. B. Higher Initial Ratings The Veteran seeks higher initial ratings for his right foot and ankle disabilities on the basis that the ratings assigned these disabilities do no adequately reflect the severity of his right foot and ankle symptoms. Disability ratings are determined by evaluating the extent to which a claimant's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1, 4.2, 4.10 (2015). If two ratings are potentially applicable, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Where, as here, an award of service connection for a disability has been granted and the assignment of an initial rating for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 1. Right Plantar Fasciitis According to written statements submitted during the course of this appeal and hearing testimony, the Veteran experiences foot pain and swelling daily due to his plantar fasciitis, symptoms that necessitate the use of medication. This pain allegedly worsened a year or two prior to 2011, interfering with the Veteran's ability to walk for prolonged periods of time, run and bike. By rating decision dated in April 2005, the RO granted the Veteran service connection for right plantar fasciitis and assigned that disability a noncompensable (0 percent) rating, pursuant to Diagnostic Codes (DCs) 5299-5276. This disability remains rated under these DCs. Foot disabilities are governed by the provisions of 38 C.F.R. § 4.71a, DCs 5276 through 5284. None of these DCs specifically lists plantar fasciitis; therefore, the AOJ applied what it considered to be the most closely analogous DC - DC 5276, which governs ratings of flatfeet. See 38 C.F.R. §§ 4.20, 4.27 (2015) (when an unlisted condition is encountered, it is permissible to rate the condition under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). DC 5276 provides that a 0 percent rating is assignable when symptoms are mild and relieved by built-up shoe or arch support. A 10 percent rating is assignable for moderate impairment with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. A 30 percent rating is assignable for severe bilateral impairment manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. 38 C.F.R. § 4.71a, DC 5276. The Veteran has reported right foot pain affecting the heel and top of the foot intermittently since service, including during treatment visits. Since discharge, medical professionals have occasionally attributed the pain to plantar fasciitis. The Veteran asserts that, to combat this problem, he has worn orthotics in his shoes, now when weight bearing. Since June 2004, when he underwent his first VA examination, medical professionals have also diagnosed the Veteran with a right foot heel spur, flat foot deformity, prominence of the 1st metatarsalphalangeal (MTP) joint, arthritis and neuropathy. They distinguished symptoms of the Veteran's plantar fasciitis from those of the prominence and the neuropathy, but not from those of the heel spur and flat feet. During a June 2014 VA examination, however, an examiner found all but the flat feet unrelated to the Veteran's service or service-connected plantar fasciitis. The Board thus considers symptoms of the flat feet in determining the severity of the right plantar fasciitis. In June 2004, in response to complaints of heel pain, a VA examiner confirmed tenderness along the heel and indicated that, although the Veteran had significantly benefitted from inserts, he would continue to experience difficulty with his right foot on prolonged weight-bearing. In March 2007, his massage therapist submitted a letter indicating that she treated him for multiple medical complaints, including discomfort in the right foot. During VA examinations conducted in February 2012, June 2013 and June 2014, the Veteran denied heel pain, but reported a worsening in the pain around the MTP joint and in the dorsum, the latter associated with diabetes-related swelling. In June 2013, he indicated that he had difficulty distinguishing his right ankle pain from his right foot pain, but thought that the right heel pain had improved. The February 2012 examiner confirmed the existence of plantar fasciitis and indicated that it involved pain and focal tenderness, but was relieved with orthoses. The June 2013 examiner noted no associated symptomatology. The June 2014 examiner noted a flat foot deformity with mild pronation, no callosities and 10 degrees of valgus alignment. He also noted pain and tenderness associated with the plantar fasciitis and indicated that orthoses helped ease the pain. Prior to December 16, 2014, no medical professional - treatment provider or VA examiner - specifically characterized the Veteran's right foot disability as more than mild or noted symptomatology indicative of more than mild impairment. As such, a rating in excess of 10 percent is not assignable the Veteran's plantar fasciitis under DC 5276 for that particular time period. On December 16, 2014, when the Veteran underwent another VA examination, it became evident that the Veteran's right foot disability had worsened. On that date, the examiner characterized the Veteran's plantar fasciitis as mild, a finding warranting the continuance of a 0 percent rating, but noted other findings indicative of a more serious condition, including: pain on use (one of the criteria for a 10 percent rating); the use of an orthotic without relief of symptoms; marked deformity (one of the criteria for a 20 percent rating); marked pronation; and weight-bearing line falling over or medial to the great toe (one of the criteria for a 10 percent rating). The examiner indicated that the Veteran had difficulty walking tandem due to his plantar fasciitis. To be assigned a 10 percent rating under DC 5276, the evidence must also show inward bowing of the tendo Achilles, which the examiner did not note; however, given the examiner's finding of a marked deformity, one of the criteria of a 20 percent rating, the Board finds the evidence more nearly approximates the criteria for an initial 10 percent, rather than 0 percent, schedular rating, from December 16, 2014. An initial 20 percent schedular rating is not assignable in the absence of evidence of swelling on use and characteristic callosities. The Veteran has not raised a claim for a higher initial rating for his right plantar fasciitis on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) (2015). Referral to the Director of the Compensation Service for consideration of this matter is thus not necessary. 2. Right Ankle Disability According to written statements and hearing testimony, the Veteran's right ankle disability has also worsened, causing continuous swelling and discomfort and necessitating physical and massage therapy and medication for pain and inflammation. According to his spouse, the Veteran's quality of life has diminished since he injured his right ankle in 1983; once an active individual who ran, the Veteran can no longer engage in high impact activities. He has consequently gained weight and now suffers persistent pain, worse in cold weather. The Veteran has submitted statements from an acquaintance, a co-worker and a fellow veteran confirming the pain the Veteran suffers in multiple joints of his body, including the right ankle. All these individuals agree that the Veteran's quality of life has changed due to his multiple medical problems, including those affecting his right ankle. The RO has rated the Veteran's right ankle disability 0 percent disabling prior to February 13, 2012, and 10 percent disabling from February 13, 2012, under 38 C.F.R. § 4.71a, DC 5271 (2015). DC 5271 provides that a 10 percent rating is assignable for moderate limited motion of the ankle. A 20 percent rating is assignable for marked limited motion of the ankle. 38 C.F.R. § 4.71, DC 5271. DCs 5270 and 5003 are also potentially applicable to this claim. DC 5270 provides that a rating of at least 20 percent is assignable for ankylosis of the ankle. 38 C.F.R. § 4.71a, DC 5270 (2015). Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting Stedman's Medical Dictionary 87 (25th ed. 1990). See also Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). DC 5003 provides that degenerative arthritis (hypertrophic or osteoarthritis) established by x-ray findings is to be evaluated on the basis of limitation of motion under the appropriate DC(s) for the specific joint or joints involved. Here, the appropriate DC is 5271, limitation of ankle motion. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assignable for x-ray evidence of involvement of arthritis of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assignable for x-ray evidence of involvement of arthritis of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a, DC 5003. a. Prior to February 13, 2012 Prior to February 13, 2012, the Veteran sought treatment for multiple medical problems, but rarely mentioned his right ankle and when doing so, reported pain and/or soreness only. During his first VA examination, conducted in June 2004, he reported that he felt pain in the right ankle when he stepped off a curb or climbed stairs. He indicated that he was able to run, but that doing so increased his pain. He further indicated that he never jumped and could probably do pretty well on a treadmill. He characterized the severity of his right ankle disability as mild and indicated that he did not miss sleep or work due to this disability. In 2005, he was seen for right lower extremity edema initially thought to be due to a right ankle sprain on a treadmill. Later, however, doctors discussed the possibility of the swelling being related to peripheral vascular disease or lumbar disease. Testing eventually revealed neuropathy in both lower extremities, which doctors attributed to diabetes. The Veteran underwent another VA examination in March 2009, during which the examiner noted evidence of old trauma to the right ankle, but no bony or joint abnormality, and indicated that there may be soft tissue swelling present. The examiner concluded there was minimal likelihood of any limited motion, weakness or incoordination associated with the right ankle. In May 2010, during a VA general examination, the Veteran reported no limitations in activity secondary to any musculoskeletal complaints and the examiner noted no abnormalities of the lower extremities. So although the Veteran exhibited some right ankle symptomatology prior to February 13, 2012, such symptomatology consisted of intermittent pain and possible swelling, not limited or painful motion, let alone compensable loss of motion under DC 5271. As such, a compensable rating may not be assigned the Veteran's right ankle disability under any applicable DC for the time period in question. b. Since February 13, 2012 On February 13, 2012, it became evident the Veteran's right ankle disability had worsened. On that date, the Veteran underwent a VA examination, during which he reported limitation in standing and a need to use a cane secondary to back and right foot/ankle disabilities. He indicated that he had been seeing a clinic doctor for constant back, knee and right ankle pain. He further indicated that he also had increased pain and swelling in the right ankle when walking and felt off balance, necessitating the use of the cane. The examiner noted an antalgic gait on the right, decreased balance on toe walking, decreased sensation in the feet, but bilaterally, edema in the lower extremities bilaterally, right ankle tenderness, dorsiflexion to 5 degrees with pain and plantar flexion to 50 degrees with pain (normal dorsiflexion being 0 to 20 degrees and normal plantar flexion being 0 to 45 degrees, see 38 C.F.R. § 4.71, Plate II (2015)), not decreased on repetitive use. He diagnosed degenerative changes in the right ankle and right ankle instability. Treatment records later associated with the claims file indeed confirm the Veteran had been seeking more frequent treatment for joint pain, including affecting his right ankle. Again, however, doctors attributed any edema found in the lower extremities to medical conditions unrelated to the right ankle. During a VA examination conducted in June 2013, the Veteran reported right ankle pain on ambulation, but no flare-ups of such pain. The examiner confirmed arthritis and noted dorsiflexion to 10 degrees and plantar flexion to 20 degrees, neither with pain and not increased on repetitive use. The examiner also noted weakened movement and excess fatigability, but ruled out ankylosis, and indicated that the Veteran used a cane for support and balance. The Veteran's right ankle disability, productive of arthritis, is now causing marked limitation of motion (at best, 50 percent of normal dorsiflexion and plantar flexion). Limited motion of that degree warrants the assignment of a 20 percent rating under DC 5271. Even assuming such limitation could not be considered marked, a 20 percent rating would still be assignable based on other symptoms the disability is causing, particularly instability of the ankle. Collectively, the right ankle symptoms are causing marked impairment in functioning. ORDER Service connection for residuals of stress fractures, bilateral legs, is denied. An initial 10 percent rating for plantar fasciitis, right foot, prior to December 16, 2014, is denied. An initial 10 percent rating for plantar fasciitis, right foot, from December 16, 2014, is granted. An initial compensable rating for a right ankle disability, prior to February 13, 2012, is denied. An initial 20 percent rating for a right ankle disability, from February 13, 2012, is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs