Citation Nr: 1805029 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-33 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to service-connected pes planus. 2. Entitlement to service connection for a right knee disability, to include as secondary to service-connected pes planus. 3. Entitlement to service connection for a left knee disability, to include as secondary to service-connected pes planus. 4. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected pes planus. 5. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected pes planus. 6. Entitlement to service connection for a sleep disorder, claimed as sleeping problems, to include as secondary to a back disability. 7. Entitlement to a disability rating in excess of 30 percent for bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and R.J.C. ATTORNEY FOR THE BOARD L. Stepanick, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a May 2012 rating decision, the RO increased the rating for the Veteran's service-connected bilateral pes planus to 30 percent throughout the claim period. However, as that increase did not represent a total grant of the benefits sought on appeal, the claim for increase remained before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In June 2013, the Veteran and R.J.C. testified at a Travel Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In April 2014 and August 2016, the Board remanded the current issues for further evidentiary development. There has been substantial compliance with the Board's remand orders, and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In October 2017, the Board duly notified the Veteran that the Board no longer employed the VLJ who conducted his June 2013 hearing and that he had the right to another Board hearing. In December 2017, the Veteran submitted correspondence indicating that he did not wish to appear at another Board hearing. In August 2017, the Board sought a Veterans Health Administration (VHA) expert opinion in connection with the Veteran's claims of entitlement to service connection for back, bilateral knee, and bilateral ankle disabilities, all claimed as secondary to signs and symptoms associated with his service-connected bilateral pes planus. The requested opinion was received in September 2017. The Board notes that it also remanded the issues of entitlement to service connection for walking with right foot out and on the side, claimed as secondary to service-connected bilateral pes planus, and entitlement to service connection for gait change, claimed as secondary to a back disability and service-connected bilateral pes planus, in its April 2014 and August 2016 decisions. However, as will be explained below, those foot position and gait abnormalities have been found to be signs associated with the Veteran's pes planus. Indeed, his claims of entitlement to service connection for back, knee, and ankle disabilities are being granted herein on the basis of that determination. Thus, the abnormal foot position and gait claims are effectively subsumed under the claim of entitlement to an increased rating for bilateral pes planus and, as a result, are no longer listed as separate claims on the title page. VETERAN'S CONTENTIONS The Veteran is seeking service connection for a back disability, right and left knee disabilities, right and left ankle disabilities, and a sleep disorder. He is also seeking a higher rating for his service-connected bilateral pes planus. Regarding his back disability, the Veteran has asserted that he had a preexisting condition that was exacerbated during service or, alternatively, that an abnormal gait and foot position caused by his service-connected pes planus caused a current back disorder. The Veteran has also asserted that the signs and symptoms associated with his pes planus caused bilateral knee and ankle disabilities. Regarding a sleep disorder, the Veteran has primarily asserted that pain caused by his back disability prevents him from sleeping well. Finally, regarding his service-connected pes planus, the Veteran has generally asserted that the symptoms of his pes planus are more severe than his assigned rating reflects. FINDINGS OF FACT 1. The medical evidence of record, including a December 2009 VA joints examination and an August 2012 VA back conditions examination, documents current diagnoses of degenerative joint disease and degenerative disc disease of the thoracolumbar spine; an old compression fracture at T11-T12; degenerative joint disease of the right and left knees; and right and left ankle strain. 2. A September 1965 insurance statement reflects that the Veteran was involved in a motor vehicle accident (MVA) in May 1965, prior to service, and notes a stab wound to the posterior aspect of his chest, with no penetration to the thoracic cavity. A May 1965 x-ray study showed no evidence of fracture, dislocation, or other acute bone or joint pathology in the thoracic spine; some increase in normal lordosis of the lumbosacral spine; but no definite vertebral body fracture. 3. A back condition was not noted on the Veteran's April 1970 enlistment examination. 4. On a July 1974 VA claim application form, a private physician stated that the Veteran described foot pain since service and a six-month history of back pain. A September 1974 treatment note indicated the Veteran had recently loaded hay and that such activity increased his back and foot pain. 5. In November 2009 correspondence, a private physician stated that the Veteran suffered a "broken back" in an MVA prior to service; that he suffered severe back pain during service; and that he had experienced recurrent back pain since then. He opined that the Veteran's current back condition was aggravated by and "probably accelerated greatly due to the physical requirements of basic training." 6. In December 2009, a VA examiner opined that the Veteran's current knee and ankle disabilities were less likely than not caused by or a result of his service-connected bilateral pes planus. The examiner noted that the Veteran reported that his ankle pain began following use of a heel lift to correct a leg length discrepancy and stated that the Veteran's bilateral pes planus was not the type that is the most symptomatic. She stated that medical literature indicated that individuals with "adult acquired" flat foot deformity typically had a history of medial ankle pain due to tendinosis of the tibialis posterior followed by progressive loss of the longitudinal arch, but that the Veteran, in contrast, was "naturally flat footed." 7. In August 2012, a VA examiner opined that the Veteran's back disability was less likely than not incurred in or caused by service. In support of that opinion, he stated that the Veteran's "spine injury" had preexisted service; noted that the Veteran did not complain of low back pain during service; and concluded that the Veteran's preexisting back condition had been aggravated beyond its natural progression by farm work-particularly baling hay-he had performed for several years after service. 8. In May 2013 correspondence, a private orthopedic surgeon opined that the Veteran's 1965 MVA traumatized his spine and more likely than not contributed to the ongoing degenerative changes that were documented. He also stated, however, that the Veteran had flat feet and that "abnormal gait will exacerbate back situations." 9. In July 2014, a VA examiner opined that the Veteran's pes planus had not caused or aggravated back, knee, or ankle conditions. In support of her conclusion regarding the Veteran's back, the examiner initially noted that the Veteran had not fractured his spine in the 1965 MVA as he thought, based on the x-ray studies conducted at that time. She also noted that he lifted heavy bales of hay shortly after service. The examiner further noted that the Veteran was found to have a leg length discrepancy and was given a heel lift in 2003, and that his back pain resolved thereafter. In support of her conclusions regarding the Veteran's knee and ankle conditions, the examiner cited the distinctions between adult acquired pes planus and natural flat-footedness that were also discussed by the 2009 VA examiner. In response to a request to comment on whether the Veteran's pes planus had caused an altered gait or pattern of walking with his right foot out and on the side, the examiner stated that it had not caused such symptoms and that use of a heel lift to correct a leg length discrepancy had resolved them. 10. In March 2017, a VA Appeals Resource Center (ARC) Medical Officer concluded that the Veteran did not have a gait abnormality as a result of his service-connected pes planus and relied on that conclusion to determine that the Veteran's back, ankle, and knee conditions were not caused or aggravated by that disability. 11. In April 2017, a private physician who performed several surgeries on the Veteran's spine opined that, although the Veteran was involved in an MVA prior to service that likely "started things in motion," it was more likely than not that his military service and pes planus worsened his back condition. That same month, the orthopedic surgeon who submitted the May 2013 opinion asserted that it was "fair to agree" that the pre-service MVA traumatized the Veteran's spine, but that it was "more than reasonable to attribute some of his back pain and degeneration to his abnormal gait because of his foot and knee problems." 12. In September 2017, in response to the Board's request for a VHA expert opinion, an orthopedic surgeon concluded that the instances of abnormal gait and foot positioning documented in the claims file were attributable to the Veteran's pes planus. In support of that conclusion, he described the positioning caused by loss of the longitudinal arch of the foot and noted multiple instances of gait abnormalities and the documented tibial tendon dysfunction that post-dated the Veteran's initial use of a heel lift. He also asserted that the leg length discrepancy identified in the record would not cause an antalgic gait or abnormal foot position. When explaining why the Veteran's gait abnormalities were more related to pes planus than to a knee condition, he noted that the Veteran's pes planus dated to 1972. The orthopedic surgeon ultimately concluded that it was at least as likely as not that the Veteran's back, ankle, and knee disorders were caused by his pes planus. He explained that a pes planus deformity, including pronation and a foot that turns out along with an antalgic gait, causes malalignment of the lower extremities and more stress to the ankles, knees, and lower back. 13. In December 2017, a private physician opined that it was doubtful that pes planus caused the Veteran's entire spinal condition, but that pes planus likely contributed to it. The physician noted, however, that he had no documentation of a fracture or injury from the Veteran's pre-service MVA. 14. The Veteran's symptoms of chronic sleep impairment have been medically attributed to his service-connected unspecified depressive disorder, and the evidence of record does not establish any other sleep disorder. 15. Throughout the claim period, the Veteran's bilateral pes planus has been manifested by mild pronation, pain on use, and characteristic callosities; pronounced flatfoot has not been shown. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the requirements for establishing service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the requirements for establishing service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. Resolving reasonable doubt in the Veteran's favor, the requirements for establishing service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. Resolving reasonable doubt in the Veteran's favor, the requirements for establishing service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 5. Resolving reasonable doubt in the Veteran's favor, the requirements for establishing service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 6. The requirements for establishing service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310, 4.14 (2017). 7. The criteria for a disability rating in excess of 30 percent for bilateral pes planus are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Back, Knee, and Ankle Disabilities As was noted in the foregoing findings of fact, the medical evidence establishes that the Veteran has been diagnosed with back, right and left knee, and right and left ankle conditions. As the Board finds that the evidence relevant to the question of whether his service-connected bilateral pes planus at least as likely as not caused those disabilities is in relative equipoise, service connection for a back disability, right and left knee disabilities, and right and left ankle disabilities may be granted. As an initial matter, the Board acknowledges that the evidence of record reflects that the Veteran was involved in an MVA prior to service and that some of the evidence, including statements made by private providers, suggests that he sustained a back injury at that time. However, as a back condition was not noted on the Veteran's entrance examination, the presumption of soundness applies, and the Board finds that the onerous "clear and unmistakable" evidentiary standard required to rebut that presumption has not been met in this instance. This is so because the record includes evidence that calls into question whether the Veteran did, in fact, sustain a back injury in the pre-service MVA. See May 1965 x-ray study; July 1974 VA claim application; July 2014 VA examination report; 38 U.S.C. § 1111 (2012); McKinney v. McDonald, 28 Vet. App. 15, 25-28 (2016); Wagner v. Principi, 370 F.3d 1089, 1095-96 (Fed. Cir. 2004). Turning, then, to the evidence addressing whether the Veteran's pes planus at least as likely as not caused his current back, knee, and ankle disabilities, the Board acknowledges that none of the medical opinions that speak to that question are flawless. However, the Board finds that those opinions, viewed in the context of the record as a whole, are sufficient to decide the Veteran's back, knee, and ankle claims. 38 C.F.R. § 3.159(c)(4); see also Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (explaining that it is not permissible to undertake further development if the purpose is to obtain evidence against an appellant's claim). In short, in light of the VHA expert's determination, detailed above, that gait and foot position abnormalities related to pes planus as likely as not caused the Veteran's back, knee, and ankle conditions; in light of the acknowledgment, by several private physicians, that pes planus can cause malalignment that stresses the back; in light of the fact that the Veteran reported that his post-service farm laboring worsened, rather than initiated, his back pain; and in light of the fact that the clinicians who attributed the Veteran's back, knee, and ankle disabilities to causes other than his pes planus largely failed to consider the instances of abnormal gait and foot positioning that are clearly documented in the evidence of record even after correction of the Veteran's leg length discrepancy, the Board finds that the evidence that addresses whether his pes planus at least as likely as not caused his back, bilateral knee, and bilateral ankle disabilities is at least in equipoise. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary is required to give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the Board finds that service connection for a back disability, right and left knee disabilities, and right and left ankle disabilities, as secondary to bilateral pes planus, is warranted. Sleep Disorder In contrast, following review of the evidence of record, the Board finds that service connection for a sleep disorder, claimed as sleeping problems, must be denied, because the Veteran has not been diagnosed with a sleep disorder that warrants separate service connection. In so finding, the Board initially acknowledges that "chronic sleep impairment" was identified by the VA examiner who conducted the June 2014 VA mental disorders examination upon which the RO's subsequent grant of service connection for unspecified depressive disorder was based. However, the evidence of record does not reflect that the Veteran has a diagnosed sleep disorder distinct from the symptoms of that already service-connected psychiatric disability. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (listing chronic sleep impairment as one of the symptoms to be considered when rating psychiatric disabilities). More importantly, the disability evaluation assigned for the Veteran's unspecified depressive disorder was based on symptoms that specifically included chronic sleep impairment. See October 2014 rating decision. As a result, assigning a separate, compensable rating for chronic sleep impairment would violate the rule against pyramiding, because the same symptoms would be rated twice. See 38 C.F.R. § 4.14 (pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided). The medical evidence of record does not otherwise establish a separately diagnosed sleep disorder. Moreover, further development to determine whether such a condition exists is not warranted in this instance, because the Veteran has asserted only that he has "sleep problems" due to the pain associated with his now service-connected back disability. In other words, the Veteran has actually asserted that he has back pain, not that he has a sleep disorder. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) ("The first element in determining the need for a medical examination is whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability."). To the extent that such assertions of pain-related difficulty sleeping may be viewed as a claim of entitlement to a certain disability rating for the Veteran's now service-connected back condition, that issue is not currently before the Board. Rather, it is a downstream issue for the RO to consider when it assigns the initial rating for the back disability. In summary, a separate compensable rating for the chronic sleep impairment that the evidence establishes is a manifestation of the Veteran's service-connected unspecified depressive disorder is prohibited by governing regulation, and the evidence does not establish any other sleep disorder. As a result, the Veteran's claim of entitlement to service connection for a sleep disorder must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57. II. Increased Rating for Bilateral Pes Planus The Veteran is currently in receipt of a 30 percent disability rating for his bilateral pes planus, under 38 C.F.R. § 4.71a, Diagnostic Code 5276, throughout the claim period. Following review of the record, the Board finds that a higher rating for that disability is not warranted at any point. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Under Diagnostic Code 5276, and as relevant here, a rating of 30 percent is assigned for bilateral pes planus that is severe. "Severe" is defined as: objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A rating of 50 percent is assigned for bilateral pes planus that is pronounced. "Pronounced" is defined as: 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. After reviewing the record, the Board finds that the preponderance of the evidence is against granting a disability rating higher than 30 percent for the Veteran's bilateral pes planus, as the evidence, including the findings reported during four VA examinations and the Veteran's own statements, does not establish symptoms of pronounced pes planus as that phrase has been defined by regulation. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. In that regard, during December 2009, January 2011, July 2014, and December 2016 VA examinations, the Veteran primarily described pain in his feet with use. The examiners generally observed mild pronation and characteristic callosities, but none of those examiners observed marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, or described lack of improvement by orthopedic shoes or appliances. Indeed, the signs and symptoms associated with pronounced pes planus were not reported at any point during the claim period, either objectively or subjectively, and many of the symptoms associated with a 30 percent disability rating-namely, marked deformity, pain on manipulation, and swelling on use-were also not typically observed or described. Notably, the Veteran has specifically argued in favor of the 30 percent disability rating that he is now assigned for his bilateral pes planus throughout the claim period. In any event, when the evidence relating to the symptoms of that disability is reconciled into a consistent picture, it simply does not support a finding that a 50 percent disability rating, rather than a 30 percent disability rating, is more closely approximated at any point. As a result, a rating in excess of 30 percent for bilateral pes planus is not warranted. The Board has again considered the applicability of the benefit of the doubt doctrine; but, because the preponderance of the evidence is against the claim, that doctrine is inapplicable. See 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 55-56. ORDER Service connection for a back disability is granted. Service connection for a right knee disability is granted. Service connection for a left knee disability is granted. Service connection for a right ankle disability is granted. Service connection for a left ankle disability is granted. Service connection for a sleep disorder is denied. A disability rating in excess of 30 percent for bilateral pes planus is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs