Citation Nr: 1802434	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  12-17 030	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to service connection for a right ankle disability.

2.  Entitlement to service connection for bilateral lower extremity radiculopathy, to include as secondary to the service-connected degenerative disc disease L1-2, L2-3 with chronic low back pain and mild scoliosis.

3.  Entitlement to an initial compensable evaluation for bilateral pes planus with calcaneal spurs.

4.  Entitlement to an evaluation higher than 20 percent for degenerative disc disease L1-2, L2-3 with chronic low back pain and mild scoliosis.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel


INTRODUCTION

The Veteran had active military service from February 1978 to February 1982, from August 1982 to November 1982, from November 1989 to December 1997, from January 2003 to January 2005, and from January 2007 to January 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and September 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.

In October 2015, the Veteran testified before the undersigned Veterans Law Judge at a live videoconference Board hearing.  A transcript of the proceeding is of record.

This case was most recently before the Board in June 2016, where it remanded the claim for further development.  In an August 2016 rating decision, on remand, the Appeals Management Center (AMC) granted service connection for a left ankle condition, obstructive sleep apnea, and bilateral foot bunionectomy.  In response, the Veteran did not appeal either the ratings or effective date assigned for these now service-connected disabilities, so those claims are no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating that she has to separately appeal these "downstream" issues).  Subsequently, the Agency of Original Jurisdiction (AOJ) continued to deny the remaining claims on appeal, as reflected in an August 2016 Supplemental Statement of the Case (SSOC), so these claims are again before the Board for further appellate review.

The Board notes that there was substantial compliance with its June 2016 remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  As will be explained, however, the Veteran's claim of entitlement to an increased evaluation for her low back disability and her service connection claim for bilateral lower extremity radiculopathy both require further development before being decided on appeal, so the Board is remanding these claims to the AOJ.  Even so, the Board will proceed with undertaking adjudication of the service connection claim and claim for increase remaining on appeal.


FINDINGS OF FACT

1.  The preponderance of the evidence shows that the Veteran does not have a current diagnosis of a right ankle condition.

2.  The Veteran's bilateral pes planus with calcaneal spurs has been manifested by pain accentuated on use, indication of swelling on use, and the weight-bearing line falling over the great toe; there is no evidence of marked deformity (pronation, abduction, etc.), inward bowing of the tendo achillis, characteristic callosities, or pain on manipulation; and, the Veteran's symptoms were not relieved by orthotics.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a right ankle condition have not been met.  38 U.S.C. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).

2.  The criteria for an initial compensable evaluation of 10 percent, but no higher, for bilateral pes planus with calcaneal spurs have been met.  38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

For increased rating claims, 38 U.S.C. § 5103 (a) requires, at a minimum, the Secretary to: (1) inform the claimant that in order to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and, (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment."  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life").

Once service connection is granted, Courts have held that the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See 38 U.S.C. § 5103(a); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Nonetheless, the Board notes that in an April 2008 letter, the Veteran was informed of what evidence was required to substantiate her claims, and of her and VA's respective responsibilities in obtaining evidence.  Additionally, this letter notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Moreover, the Veteran was afforded ample notice of the applicable law and requirements for substantiating her claim in a May 2012 Statement of the Case (SOC), as well in additional SSOCs.  She has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate.  Thus, the Board finds that VA's duty to notify is satisfied.

Regarding the duty to assist, the Board notes that the claims file contains the Veteran's service treatment records (STRs), pertinent post-service medical records, as well as her own written contentions.  Neither the Veteran nor the Veteran's representative has identified, nor does the record otherwise indicate, any other evidence relevant to her claim that has not been obtained.  Furthermore, the Veteran was afforded VA examinations and opinions were provided in support of her claim.  Upon review of the medical evidence, the Board concludes that these examination reports, collectively, are adequate for the purpose of rendering a decision in this case.  38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).

Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  Legal Criteria for Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service.  38 C.F.R. §§ 3.307, 3.309(a).  This presumption is rebuttable by probative evidence to the contrary.  Id.

When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question.  Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b).  There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.  Walker, 708 F.3d at 1336.

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service.  38 C.F.R. § 3.310.  In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities.  Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998).  In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition.  See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b).

Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

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. § 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 to the claimant.

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a).  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

III.  Service Connection for Right Ankle Condition

The Veteran seeks service connection for a right ankle disability.  Having carefully considered the Veteran's claim, in light of the evidence of record and the applicable law, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has a current disability and, therefore, the appeal must be denied.

The Board will begin by addressing direct service connection.

As noted above, the first element of direct service connection requires medical evidence of a current disability.  In this case, a current diagnosis of a right ankle condition has not been established.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131's requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed.  In October 2015, the Veteran testified that her STRs show a diagnosis of osteoarthritis ankle/foot (multiple joints).  See Board Hearing Transcript at 4.

The Veteran's STRs include a December 2007 treatment record showing a diagnosis of osteoarthritis ankle/foot (multiple joints).  However, specification-such as which ankle or foot was affected-was not provided.  Nonetheless, the Veteran was afforded a VA compensation examination in August 2008.  A right ankle condition was not found.  The remaining post-service medical records-see, e.g. March 2016 private medical record-reveal a diagnosis of degenerative joint disease of the left ankle and/or foot.

Despite these findings, there is no competent medical evidence showing a current right ankle condition.  In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Therefore, as the evidence of record shows that the Veteran does not have a current disability, the Board concludes that service connection for a right ankle condition is not warranted, and no further discussion of the remaining elements is necessary.  See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection).

Accordingly, to the extent that the medical evidence addresses whether the Veteran has a right ankle condition, the preponderance of the evidence indicates that she does not.  The Veteran is competent to report her current symptoms, but her reports must be weighed against the medical evidence of record.  See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau, supra.  To the extent that the Veteran has indicated that she currently has a right ankle condition, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of her claim for VA benefits.  Further, as the question of causation extends beyond an immediately observable cause-and-effect relationship, she is not competent to render a diagnosis or address etiology in the present case.  Although lay persons are competent to provide opinions on some medical issues, see, e.g. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue of whether the Veteran currently has a chronic right ankle condition falls outside the realm of common knowledge of a lay person.  Consequently, her statements as to a current diagnosis of a right ankle disability are not probative.

As the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a right ankle condition, the benefit of the doubt rule is not applicable.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IV.  Legal Criteria for Increased Rating Claims

When evaluating the severity of a particular disability, it is essential that the disability is considered in the context of the entire recorded history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of a disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  If the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  If the evidence for and against a claim is in equipoise, then the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4.  These percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

V.  Increased Rating for Bilateral Foot Disability

Foot disabilities are evaluated under 38 C.F.R. § 4.71, Diagnostic Codes (DC) 5276-5284.  The Veteran's service-connected bilateral pes planus with calcaneal spurs is currently assigned a noncompensable rating from January 8, 2008, under DC 5276.  DC 5276 concerns "acquired flatfoot" and disability ratings are assigned on both a unilateral and bilateral basis.  38 C.F.R. § 4.71, Diagnostic Code 5276.

Under Diagnostic Code 5276, a noncompensable rating is warranted for acquired flatfoot that is mild in severity, which is relieved by built-up shoe or arch support.  A 10 percent rating is warranted for moderate flatfoot with symptoms of the weight-bearing line falling over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, whether presented bilaterally or unilaterally.  A 30 percent evaluation is warranted for severe bilateral flatfoot with symptoms of objective evidence of marked deformity (pronation, abduction, etc.), pain accentuated on manipulation and use, indication of swelling on use, and characteristic callosities.  A 50 percent rating is warranted for pronounced bilateral flatfoot with symptoms of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, which are not improved by orthopedic shoes or appliances.

The words "slight," "moderate," "and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions."  38 C.F.R. § 4.6.  Although an element of evidence to be considered by the Board, the use of terminology such as "severe" by VA examiners and others is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.


The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

The Veteran was afforded a VA examination in August 2008, where the examiner diagnosed bilateral pes planus with calcaneal spurs.  She reported a history of pain on her feet and described the pain as being mild to moderate and located mostly on the arches and outside of her feet-on the plantar aspect.  The pain was further described as usually daily and was noted to be aggravated by walking.  There was no reported history of giving way, weakness, or swelling.  The Veteran uses an arch support and did not report using any pain medication.

Following physical evaluation, the examiner indicated that examination of the feet did not reveal any tenderness on the plantar aspect of the feet, hallux valgus, club feet, talus valgus or varus, or any hammertoes.  The Veteran was noted to have a mild arch on weightbearing.  Achilles tendons are well aligned.

The Veteran was afforded another VA examination in July 2016.  She reported pain in her feet, soreness, and occasional swelling.  She reported that she occasionally uses a cane for locomotion and stability.

The results from the physical examination showed that the Veteran has a diagnosis of bilateral pes planus with calcaneal spurs.  The examiner indicated that there was pain accentuated on use, swelling on use, and that the Veteran's symptoms were relieved by arch supports.  The examiner noted that the location of the weight-bearing line was over the great toe on both feet.  However, the examiner found no objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation, characteristic callosities, extreme tenderness of the plantar surface on either foot, marked pronation, inward bowing of the tendo achillis, or marked inward displacement and severe spasm of the Achilles tendon on manipulation.

At the outset, the Board finds that the VA compensation examinations described above, collectively, were thorough and adequate and provided a sound basis upon which to base a decision with regard to the Veteran's claim for increase.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The examiners considered the relevant history of the Veteran's bilateral foot disability, including the lay evidence of record, performed a physical examination, and provided a rationale to support the conclusions reached.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).

As noted above, in order to warrant an increased evaluation under DC 5276, the evidence would need to show that the Veteran's bilateral pes planus with calcaneal was moderate in severity with symptoms of the weight-bearing line falling over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet, whether presented bilaterally or unilaterally.

In this case, the Board concludes that the evidence of record supports an initial evaluation of 10 percent, but no higher, under DC 5276 for the entire period on appeal.  In support of this determination, the Board has resolved all reasonable doubt in favor of the Veteran and concludes that the evidence of record suggests that her symptoms pertaining to her bilateral pes planus with calcaneal spurs were not relieved by built-up shoe or arch support.  As noted above, despite the August 2016 VA examination report indicating that the Veteran's symptoms were relieved by orthotics, the other evidence of record suggests that the Veteran continued to experience pain and soreness even while wearing arch supports.  Partial relief is not akin to the criteria for a noncompensable rating under DC 5276.  Additionally, the other results from the August 2016 physical examination showed that the location of the weight-bearing line was over the great toe on both feet and that there was pain accentuated on use of both feet and a reported history of swelling with use.

However, despite this symptomatology, there was no evidence of inward bowing of the tendo achillis or pain on manipulation of the feet, which are both symptomatic of a 10 percent evaluation under Diagnostic Code 5276.  Further, the location of the weight-bearing line was only shown to be located over or medial to the great toe on one occasion.  Although the Veteran did not meet all of the criteria for a 10 percent rating, the Board concludes that the overall evidence more nearly approximates the criteria for a 10 percent rating, because it does not appear from the evidence of record that her symptoms were relieved by built-up shoe or arch support.

The Board notes that there was no objective evidence of marked deformity (pronation, abduction, etc.), pain accentuated on manipulation, or characteristic callosities at any time during the period, which are all symptomatic of a 30 percent evaluation.  Additionally, aside from a history of swelling on use being reported during the August 2016 VA examination, this symptom was not found at any other time during the period.  Therefore, the Board concludes that the evidence is not sufficient to meet the criteria for a higher rating under 38 C.F.R. § 4.71a, DC 5276.

The Board has considered whether other potentially applicable diagnostic codes allow for a separate compensable and/or increased rating for the Veteran's symptoms.  DC 5284, other foot injuries, is a more general Diagnostic Code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion.  Thus, depending on the nature of the foot injury, DC 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. § 4.40 and 4.45.  VAOPGCPREC 9-98.  However, the Veteran's disability does not warrant a change in Diagnostic Code.  DC5276 specifically addresses her diagnosed bilateral pes planus with calcaneal spurs.  Because symptoms from pes planus are all contemplated by DC 5276, it would be inappropriate to change the Diagnostic Code for the Veteran's disability to DC 5284, because that would amount to rating her bilateral pes planus by analogy to other foot injuries.  See Copeland v. McDonald, 27 Vet. App. 333 (2015); see also Yancy v. McDonald, 27 Vet. App. 484, 491 (2016) (holding that the "plain meaning of the word 'injury' limits the application of [Diagnostic Code] 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions").

Additionally, the Veteran is separately service-connected for bilateral foot bunionectomy.  Therefore, DC 5280 is not applicable.  Moreover, the Veteran is not service-connected for weak foot, claw foot, Morton's disease, hallux rigidus, hammer toe affecting all toes, or malunion or nonunion of tarsal or metatarsal bones, and, therefore, none of the other diagnostic codes for foot disabilities contained in 38 C.F.R. § 4.71a are applicable here.

Lastly, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see 38 C.F.R. §§ 4.40, 4.45.  However, while the Veteran has reported having pain in her feet, the rating criteria under DC 5276 are not based on limitation of motion, but rather, the functional impairment resulting from the foot disability.  Therefore, a higher rating is not warranted pursuant to DeLuca or 38 C.F.R. §§ 4.40, 4.45.

VI.  Extraschedular Consideration for Right Foot Disability

While the Board is precluded by regulation from assigning an extraschedular rating in the first instance, the Board is not precluded from considering whether the case should be referred to the Director, Compensation and Pension Service.  38 C.F.R. § 3.321(b)(1).  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional or unusual disability picture where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-16.  When these two elements are met, the appeal must be referred to the Director for consideration of the assignment of an extraschedular rating.

On the other hand, if the rating criteria reasonably describe the Veteran's level of disability and symptomatology, then the disability picture is contemplated by the Rating Schedule.  In such instances, the assigned schedular evaluation is adequate and referral is not required.  Thun v. Peake, 22 Vet. App. 111, 116 (2008).

Here, the Board finds that the schedular rating is adequate.  The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected bilateral foot disability.  See Thun, 22 Vet. App. at 115.  When comparing the Veteran's disability symptoms with the schedular criteria, the Board finds that her symptoms are congruent with the disability picture represented by the ratings assigned and she does not have symptoms associated with the disability that have been unaccounted for by the schedular ratings assigned herein.  38 C.F.R. § 4.124a.  Accordingly, a comparison of the Veteran's symptoms and functional impairment resulting from her service-connected disability with the pertinent schedular criteria does not show that her bilateral pes planus with calcaneal spurs present "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321 (b).

Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  As such, referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.

The statements or findings of impaired function, such as pain and particularly restrictions as to locomotion, pertain to functional limitations that are contemplated by the governing Diagnostic Code criteria and corresponding regulations.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40 (2013), 4.45.  Additionally, 38 C.F.R. §§ 4.40 and 4.45 provide that musculoskeletal system ratings contemplate functional loss and the factors of disability affecting the joints.  The evaluations are all encompassing in that they have specific requirements such as motion, yet are broad in that they provide for a level of impairment based on functional loss.  The inability to accomplish certain tasks, such as walking or running are not "symptoms" set forth in any portion of the Rating Schedule, yet they are a result of the same symptoms of pain, painful and limited motion, and decreased strength.  Therefore, it is a result contemplated by the rating criteria as it is based on the same symptomatology.

In reaching this determination, the Board considered the doctrine of reasonable doubt.  However, the preponderance of the evidence is against referral of the issue for extraschedular consideration.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to service connection for a right ankle condition is denied.

Entitlement to an initial compensable evaluation of 10 percent, but no higher, for bilateral pes planus with calcaneal spurs is granted.


REMAND

The Board must reconsider this case in light of Correia v. McDonald, 28 Vet. App. 158 (2016).  Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2015) requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range-of-motion measurements of the opposite undamaged joint.

The Board has reviewed the findings from the Veteran's most recent August 2016 VA examination for her lumbar spine disability and sees that these findings do not meet the specifications of Correia.  Specifically, the examiner did not address whether the range-of-motion testing was conducted on active or passive motion and weight-bearing or nonweight-bearing.  Given this, the Board is not satisfied that the examination findings are adequate for a contemporaneous rating.  Therefore, an additional examination is necessary under 38 C.F.R. § 3.159(c)(4).  See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination, even if not statutorily obligated to, it must provide an adequate one, else, notify the claimant why one cannot or will not be provided); and 38 C.F.R. § 4.2 (indicating it is incumbent on VA in this situation to obtain all necessary supplemental information needed to properly rate the disability at issue).

Additionally, the Board finds that the Veteran's claim of entitlement to service connection for bilateral lower extremity radiculopathy is "inextricably intertwined" with her increased rating claim because of their correlation.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims.  Also ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not yet been obtained.  All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records.  38 C.F.R. § 3.159(c) and (e).

2.  After receiving all additional treatment records, schedule the Veteran for another VA compensation examination reassessing the severity of her lumbar spine disability and all associated neurological and other impairments, including affecting her bilateral lower extremities.  Her claims file, including a copy of this remand, must be made available to the examiner for review of the history of this disability.  Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must:

(a)  Conduct any indicated diagnostic tests that are deemed necessary for an accurate assessment, to include providing the range of motion of the Veteran's lumbar spine and commenting on the degree of functional loss due to such factors as pain on motion, weakened movement, premature or excess fatigability, diminished endurance, or incoordination.  The examiner should report (in degrees) the point at which pain is objectively recorded.  In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time.  These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use.

This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing.  The examination report must confirm that all such testing has been done and reflect the results of the testing.  If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so.

(b)  Indicate whether the Veteran has had any incapacitating episodes* during the past 12 months, and, if so, the number of episodes and the duration of them.

*An incapacitating episode is defined by VA regulation as a period of acute signs and symptoms due to intervertebral disc syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician.

(c)  Determine whether the Veteran has experienced any neurologic abnormalities which can be associated with her service-connected lumbar spine disability.  Additional impairment could include, but is not limited to, bowel or bladder dysfunction or any radiculopathy, if associated with her service-connected lumbar spine disability.  If so, the examiner must specifically indicate which nerves have been affected by paralysis, incomplete paralysis, neuralgia, or neuritis, and must further describe the severity of the neurologic impairment in terms of being mild, moderate, moderately severe, severe, or complete.

Additionally, the examiner must reconcile the inconsistent findings from the August 2016 VA Peripheral Nerves examination report (indicating that contemporaneous EMG testing showed no evidence of radiculopathy) and the August 2016 VA Back examination report (indicating that the Veteran has moderate bilateral lower extremity radiculopathy affecting the sciatic nerve).

(d)  As well, comment on what limitations might be expected in the workplace (based on the Veteran's employment history and training) with respect to her lumbar spine disability and all consequent impairment, including that affecting her bilateral lower extremities.

The examiner must provide complete rationale for all opinions given, preferably citing to clinical findings or other medical authority.  If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible.  In other words merely saying he or she cannot respond will not suffice.

3.  Ensure the requested examination report is responsive to the applicable rating criteria.  If it is not, obtain all necessary additional information.  Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. §4.2.

4.  After completing the above and any other development deemed necessary, readjudicate the claims in light of all additional evidence.  If these claims are denied, or are not granted to the Veteran's satisfaction, send the Veteran and her representative another SSOC and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims.

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 2014).



______________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs