Citation Nr: 1751399 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 16-02 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a rating in excess of 30 percent prior to November 22, 2016 and in excess of 50 percent thereafter for bilateral pes planus, with mild hallux valgus and planter fasciitis. 2. Entitlement to a rating in excess of 20 percent for degenerative joint disease with instability of right knee associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis. 3. Entitlement to a rating in excess of 10 percent for degenerative joint disease of right knee associated with bilateral pes planus resulting in limitation of motion, with mild hallux valgus and plantar fasciitis. 4. Entitlement to a rating in excess of 20 percent for degenerative joint disease with instability of left knee associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis. 5. Entitlement to a rating in excess of 10 percent for degenerative joint disease of left knee associated with bilateral pes planus resulting in limitation of motion, with mild hallux valgus and plantar fasciitis. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hip condition, associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Booker, Associate Counsel INTRODUCTION The Veteran had active service from December 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2015 and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The February 2015 rating decision, in pertinent part, denied a rating in excess of 30 percent for bilateral pes planus, with mild hallux valgus and planter fasciitis, a rating in excess of 10 percent disabling for degenerative joint disease of the right, a rating in excess of 10 percent disabling for degenerative joint disease of the left knee, and denied entitlement to service connection for bilateral hip condition associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis. The May 2017 rating decision granted an increased rating for bilateral pes planus, with mild hallux valgus and planter fasciitis, assigning a 50 percent rating effective November 22, 2016. The rating decision also granted entitlement to service connection for degenerative joint disease, left knee with instability, assigning a 20 percent rating effective November 22, 2016, and entitlement to degenerative joint disease, right knee with instability, assigning a 20 percent rating effective November 22, 2016. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to a rating in excess of 20 percent for degenerative joint disease with instability of right knee associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis, entitlement to a rating in excess of 10 percent for degenerative joint disease of right knee associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis, entitlement to a rating in excess of 20 percent for degenerative joint disease with instability of left knee associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis, entitlement to a rating in excess of 10 percent for degenerative joint disease of left knee associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to November 22, 2016, the Veteran's bilateral pes planus, with mild hallux valgus and planter fasciitis did not manifest in pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 2. Since November 22, 2016, the Veteran's bilateral pes planus, with mild hallux valgus and planter fasciitis has been manifested by pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, not improved by orthopedic shoes or appliances. 3. A January 2007 RO decision denied the Veteran's claim of entitlement to service connection for bilateral hip condition, associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis. The Veteran did not appeal that decision or submit new and material evidence within the one year appeal period. 4. Evidence received since the January 2007 RO decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to a previously unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hip condition, associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis, and therefore, does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Prior to November 22, 2016, the criteria for a rating in excess of 30 percent for bilateral pes planus, with mild hallux valgus and planter fasciitis have not been met. 38 U.S.C.A. §§ 1155, 5107(West 2014); 38 C.F.R. Part 4, §§ 4.7, 4.71a, Diagnostic Code 5276 (2017). 2. Since November 22, 2016, the criteria for a rating in excess of 50 percent for bilateral pes planus, with mild hallux valgus and planter fasciitis have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, §§ 4.7, 4.71a, Diagnostic Code 5276. 3. The January 2007 RO decision denying entitlement to service connection for bilateral hip condition, associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence sufficient to reopen a claim of entitlement to service connection for bilateral hip condition, associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis has not been received. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, that reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Where an appeal is based on an initial rating for a disability, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence used to decide whether an original rating on appeal was erroneous. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson v. West, 12 Vet. App. 119 (1999). When adjudicating a claim for an increased initial rating, the relevant time period is from the date of service connection. Moore v. Nicholson, 21 Vet. App. 211 (2007). The Veteran asserts that his bilateral pes planus, with mild hallux valgus and plantar fasciitis is more severe than represented in the ratings currently assigned. The Veteran's bilateral pes planus, with mild hallux valgus and plantar fasciitis is rated under Diagnostic Code 5276. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. Diagnostic Code 5276 provides for the following ratings: A mild, noncompensable rating is assigned when the Veteran's symptoms are relieved by built-up shoe or arch support. A 10 percent rating is assignable for moderate flatfoot, requires weight bearing line over or medial to great toe, inward bowing of the tendo-achillis, pain on manipulation and use of the feet, either bilateral or unilateral. A 30 percent rating is assignable for severe bilateral flatfoot, which requires objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use, accentuated indication of swelling on use, characteristic callosities. (Unilateral severe flatfoot is rated at 20 percent.) And a 50 percent rating is warranted for pronounced bilateral flatfoot, which requires marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. (Unilateral pronounced flatfoot is rated at 30 percent.) Prior to November 22, 2016 The Veteran underwent a VA examination in January 2015 to determine the severity of his service connected bilateral foot disorder. The examiner reviewed the Veteran's medical history, noting the Veteran's complaint of pain on weight-bearing as well as flare-ups that cause severe pain and prevents prolonged standing or walking. The examiner observed that the Veteran did not have pain on manipulation of the feet, nor swelling on use. The Veteran also did not have characteristic callouses or extreme tenderness of plantar surfaces on one or both feet. Additionally, the Veteran did not have objective evidence of marked deformity of one or both feet, such as pronation or abduction. Both feet had decreased longitudinal arch height on weight-bearing. The examiner did not indicate that the Veteran's condition required arch supports, custom orthotic inserts or shoe modifications. Additionally, the examiner remarked that the Veteran did not have "inward" bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation of either foot. Morton's Neuroma, metatarsalgia, malunion or nonunion of tarsal or metatarsal bones were also not observed. The examiner did find hammer toes, but did not remark as to severity. With regard to the Veteran's hallux valgus, the examiner described the condition as mild or moderate for both feet. The examiner did not note symptoms due to hallux rigidus, and indicated there was no effect on toes, pain and tenderness or effect on plantar fascia due to pes cavus. There was no pain on manipulation for either foot. With regard to functional loss, both feet were observed to have pain on weight-bearing as stated above, excess fatigability, interference with sitting and standing, and lack of endurance. Additionally, both feet experience functional loss due to pain during flare-ups when used repeatedly over a period of time. As such, the Board finds that the severity of the Veteran's disability is adequately contemplated in the 30 percent rating prior to November 22, 2016, and a higher rating is not warranted. Since November 22, 2016 The Veteran was afforded another VA examination in November 2016. At that time the examiner noted objective evidence of marked pronation in both feet, not improved by the use of orthopedic shoes or appliances. The Veteran's weight-bearing line fell over or medial to his great toe. There was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. The Veteran did not have "inward" bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation of either foot. The examiner did not note the presence of Morton's neuroma and metatarsalgia, or hallux rigidus. The Veteran did not have any other foot injuries. The examiner observed pain on movement, pain on weight-bearing, deformity, disturbance of locomotion and interference with standing. He did not observe pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the feet are used repeatedly over time, or any other functional loss during flare-ups when the feet are used repeatedly over time. The examiner did not remark as to the presence of symptoms due to hammer toe. Finally, the examiner remarked that the Veteran's bilateral pes planus with mild hallux valgus and plantar fasciitis impacted his ability to stand, walk, and sit. Based on the pertinent medical evidence, the Board must find that a rating in excess of 50 percent from November 22, 2016 is not warranted for his bilateral pes planus with mild hallux valgus and plantar fasciitis. As of this date, the Veteran has been awarded the maximum schedular rating under Diagnostic Code 5276. Moreover, there is no evidence of any other foot disorder aside from the rated conditions that result in separately ratable symptomology not contemplated by the rating currently assigned. Thus the diagnostic codes pertaining to hammertoes, hallux rigidus, weak foot, claw foot, metatarsalgia or malunion or nonunion of the tarsal or metatarsal bones are not applicable in this case as there are no observations or diagnoses of such. 38 C.F.R. § 4.71a, Diagnostic Codes 5277-5281, 5283. While the November 2016 VA examination report indicates that the Veteran does have symptoms due to hallux valgus, these symptoms have been contemplated in the Veteran's current rating, and do not warrant a separate rating. A separate rating would not be allowed for symptoms, as it would be pyramiding. 38 C.F.R. § 4.14. The Board has carefully reviewed the record and finds that the record does not reflect that the Veteran experiences additional symptoms resulting from the combined effects of his disabilities which are not contemplated by the respective schedular evaluations. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). As such, the Board finds that the current severity of the Veteran's disability is adequately contemplated in the current 50 percent rating, and higher scheduler rating is not warranted from November 22, 2016 New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105(c). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's claim of entitlement to service connection for bilateral hip condition associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis was previously denied in a January 2007 RO decision because the evidence did not show that the Veteran's bilateral hip condition resulted from or was aggravated by his service connected bilateral pes planus, with mild hallux valgus and plantar fasciitis disability. Thereafter, the Veteran did not file a timely appeal or submit any new and material evidence within the one-year appeal period; therefore, the January 2007 RO decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the prior final January 2007 RO decision, evidence added to the record includes VA treatment records and lay statements of the Veteran. While such evidence is new, in that it was not of record at the time of the previous January 2007 RO decision, it is not material because it does not relate to an unestablished fact necessary to substantiate the claim, namely that the Veteran's bilateral hip arthritis is secondary to his service connected bilateral pes planus, with mild hallux valgus and plantar fasciitis disability. 38 C.F.R. § 3.156(a). The Board has carefully reviewed these treatment records and lay statements but finds that are duplicative of the medical evidence and lay statements previously of file, and thus, cannot be considered to be both new and material evidence. The Veteran did not provide new details or otherwise provide new evidence regarding how a bilateral hip disability is directly related to service or due to his service connected flat feet. The Veteran has not raised, nor does the evidence, raise the issue of whether the hip disability is secondary to other service-connected disability. Given that the evidence submitted is not both new and material, reopening of the Veteran's claim of entitlement to service connection for bilateral hip condition, associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis is not warranted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER Entitlement to a rating in excess of 30 percent prior to November 22, 2016 and in excess of 50 percent thereafter for bilateral pes planus, with mild hallux valgus and planter fasciitis is denied. New and material evidence has not been received; therefore, the claim to reopen a claim of entitlement to service connection for bilateral hip condition, associated with bilateral pes planus, with mild hallux valgus and plantar fasciitis is denied. REMAND The Veteran claims entitlement to ratings in excess of those assigned for his bilateral knee disabilities. After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A. The United States Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. As this was not accomplished in this case, further development is required. In this regard, while the November 2016 VA examination reports includes one set of range of motion findings, those findings do not specify whether such findings reflected active or passive motion. In addition, the VA examination reports do not specify whether the range of motion findings are weight-bearing or nonweight-bearing. The Board notes that a July 2017 addendum was obtained, however, the report did not contain specific range of motion findings necessary to assess the current severity of the Veteran's disabilities. In light of the fact that the examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, the Veteran should be afforded new VA examinations before a decision can be rendered on his claim. As the appeal is being remanded, updated VA treatment records should also be obtained. 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). Expedited handling is requested.) 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for VA orthopedic examinations to determine the severity of his bilateral knee disabilities. All appropriate tests and studies should be accomplished and all clinical findings must be reported in detail. During the course of the examinations, the physician examiner(s) must test the Veteran's active motion, passive motion, weight-bearing motion, non-weight-bearing motion for each condition. If the examiner is unable to conduct any part of the required testing or concludes that any part of the required testing is not necessary in this case, he or she should clearly explain why that is so. Range of motion findings reported in degrees must be provided in the examination reports for the knees. Any functional limitations due to weakness, fatigability, or incoordination including after repetitive movement must be noted in the examination reports, if applicable. When citing range of motion for the knee disabilities, the examiner(s) should clearly state at which degree pain begins. The VA examiner(s) must address at what point in the arc of motion pain limits function for each condition both regularly and during flare-ups, even if flare-ups are not observed on that day. If the requested opinions cannot be rendered without resorting to speculation, the examiner(s) must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner(s) does not have the needed knowledge or training. A complete rationale should be provided for any opinion expressed. 3. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ must readjudicate the issues. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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 2014). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs