Citation Nr: 1754732 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-28 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for multiple sclerosis. 2. Entitlement to an increased rating for bilateral pes cavus with plantar fasciitis. REPRESENTATION Veteran represented by: Attorney Tommy Klepper WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to August 2004 in the United States Air Force. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2010 and September 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) Waco, Texas. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. In an October 2012 written statement, the Veteran specified that he was not appealing the issues of entitlement to increased ratings for left and right shoulder bursitis, service connection for bilateral hearing loss, and service connection for right hip arthritis, listed in the April 2012 supplemental statement of the case (SSOC). The issue of service connection for an osteoid osteoma, also initially associated with this appeal stream, was granted by the RO in an August 2012 rating decision. The issue of entitlement to service connection for carpal tunnel syndrome was withdrawn by the Veteran in his May 2015 substantive appeal. Therefore, these issues are not in appellate status and will not be addressed further here. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his multiple sclerosis was incurred within seven years of separation from active service. 2. The Veteran's bilateral foot disability has been characterized by marked contraction of the plantar fascia with dropped forefoot or symptoms of equivalent severity and associated pain and tenderness throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for multiple sclerosis have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.307 (2016). 2. The criteria for an increased rating of 50 percent, but no higher, for a bilateral foot disability are met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5278 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA applies to these claims However, as the benefits sought are being granted, there is no reason to belabor the impact of the VCAA on these matters; any notice error or duty to assist omission is harmless. Multiple sclerosis The Veteran is claiming service connection for multiple sclerosis. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including multiple sclerosis, are presumed to have been incurred in service if they manifested to a compensable degree within a designated presumptive period. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The presumptive period for multiple sclerosis is seven years. 38 C.F.R. § 3.307. Because the Veteran retired in August 2004, the evidence must establish that he was diagnosed with multiple sclerosis or had symptoms attributed to multiple sclerosis by August 2011. In this case, he was diagnosed in November 2012; therefore, the question before the Board is whether the probative evidence of record attributes any symptoms reported by the Veteran with seven years of his retirement to his multiple sclerosis. In a February 2006 post-service treatment record, the Veteran reported hand numbness. November 2012 treatment records from the Veteran's neurologist, Dr. D. B., show that he was formally diagnosed with multiple sclerosis in November 2012. In an October 2013 written statement, Dr. D. B., opined that the Veteran had developed symptoms of multiple sclerosis by 2003. Dr. D. B. supported this opinion by referencing his Board certification in neurology, experience as an expert witness, and his familiarity with the Veteran's clinical and occupational history and disease progression. In August 2015, an independent medical examiner reviewed the Veteran's history of symptoms including joint pain, fatigue, and tingling in his extremities. The examiner stated that by 2006, the Veteran had numbness and tingling in both hands, joint pain, and impaired mobility. Other symptoms included vision problems and difficulty gripping. The examiner noted that these symptoms have progressed through the present. Based on his examination of the Veteran and review of his medical records, this examiner concluded that it was as likely as not that the Veteran started experiencing symptoms of multiple sclerosis as early as 1999 during his active service. The July 2016 VA examiner opined that it was less likely than not that the Veteran's multiple sclerosis had its onset prior to its formal diagnosis in November 2012. The examiner's rationale was that the Veteran had been under the care of the diagnosing physician since 2008, but that new symptoms reported by the Veteran in 2012 prompted further evaluation and his eventual diagnosis. During his May 2017 hearing, the Veteran testified that Dr. D. B. had concluded that his hand numbness (which he has experienced since 2005) was an early manifestation of multiple sclerosis. The Veteran also explained that his neurological team had recognized that many of his reported symptoms including tingling, numbness, and blurred vision had been misdiagnosed as other conditions before Dr. D.B. had assessed the Veteran's entire clinical pictured and ordered the testing that formally diagnosed multiple sclerosis. Because the Board finds that this competent, credible, and probative evidence establishes that multiple sclerosis began within seven years of separation from active service, service connection is warranted. The Board acknowledges the July 2016 VA examiner's opinion, but finds that it is outweighed by the probative value of the Veteran's entire clinical record as summarized by his treating neurologist Dr. D. B. and supported by the August 2015 independent medical evaluation. See Monzingo v. Shinseki, 26 Vet. App. 97 (2012) (VA examination report "must be read as a whole" to determine the examiner's rationale); Acevedo v. Shinseki, 25 Vet. App. 286 (2012) ("[T]here is no reasons or bases requirement imposed on [medical] examiners."). Bilateral pes cavus with plantar fasciitis The Veteran is claiming an increased disability rating for his bilateral pes cavus with plantar fasciitis. The period on appeal is April 13, 2009 (the date of the claim for an increased rating) to present. This disability is currently assigned staged ratings of 0 percent prior to July 8, 2016 (the date of the most recent VA examination) and 50 percent thereafter. During his May 2017 hearing, the Veteran testified that he was satisfied with the 50 percent rating for his bilateral pes cavus with plantar fasciitis, but that he believed the AOJ should have awarded this rating for the entire period on appeal. Diagnostic Code (DC) 5278 provides ratings for acquired claw foot (pes cavus). Under DC 5278, a 10 percent rating is warranted for bilateral pes cavus with great toe dorsiflexed, some limitation of dorsiflexion at ankle and definite tenderness under metatarsal heads. Acquired claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads, is rated 20 percent disabling for unilateral involvement, and 30 percent disabling for bilateral involvement. Acquired claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity, is rated 30 percent disabling for unilateral involvement, and 50 percent disabling for bilateral involvement. 38 C.F.R. § 4.71a. During his Board hearing, the Veteran provided competent and credible testimony that the nature and severity of his bilateral foot symptoms has been unchanged during the entire period on appeal. Because these symptoms, as described by the August 2016 VA examiner, were adjudicated to be 50 percent disabling, the Board finds that the evidence warrants the awarding of a 50 percent disability rating, the highest rating under the current diagnostic code, from the date of service connection forward. The Board has considered whether an increased rating under another diagnostic code or an additional disability rating is warranted. Under DC 5284 severe foot injuries are rated at 30 percent disability for each foot; however, the U.S. Court of Appeals for Veterans Claims has held that when a condition is specifically listed in the rating schedule (as is pes cavus), it may not be rated by analogy under DC 5284. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Other diagnostic codes pertaining to the foot describe specific conditions not reflected in the evidence and would not result in a higher rating. Plantar fasciitis, described in the Veteran's May 2009 VA examination, is accounted for already in the criteria for Diagnostic Code 5278 and the listed description of disability as pes cavus with plantar fasciitis. Moreover, the July 2016 VA examiner attributed the Veteran's foot symptoms including his foot pain, to his bilateral pes cavus. For all of these reasons, the Board finds that the evidence supports an increased disability rating of 50 percent, but no higher, for the Veteran's bilateral foot disabilities for the entire period on appeal. TDIU The Board has also considered whether the matter of entitlement to a total disability evaluation based on individual unemployability (TDIU) rating has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). The July 2016 VA examiner noted that the Veteran's multiple sclerosis has affected his work as a radar technician in that he has trouble reading instructions or communicating effectively at times, and that his intermittent weakness impacts his ability to maneuver some equipment safely without the help of colleagues. The July 2016 VA foot examiner noted that the Veteran cannot climb stairs or ladders, a component of his current job, and that he would not be able to perform a job that required prolonged standing or walking. However, there is no suggestion (either from the Veteran or in other evidence) that he is unemployable as a result of his service-connected disabilities; rather, the evidence shows that he has obtained and maintained substantially gainful employment (albeit with some accommodations) in a position consistent with his professional and educational background. Therefore, the Board finds that the matter of a TDIU rating has not, at this time, been reasonably raised by the record as contemplated in Rice. ORDER Service connection for multiple sclerosis is granted. Entitlement to an increased rating of 50 percent, but no higher, for bilateral pes cavus with plantar fasciitis is granted for the entire period on appeal (from April 13, 2009 forward), subject to the limits on monetary awards. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs