Citation Nr: 1805833 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14- 24 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial disability rating for bilateral pes planus in excess of 10 percent from November 28, 2012 and in excess of 30 percent from October 24, 2013. 2. Entitlement to an initial disability rating in excess of 10 percent for residuals of Hepatitis A. 3. Entitlement to an initial disability rating for right ankle disability in excess of 10 percent from November 28, 2012 and in excess of 20 percent from July 10, 2014. 4. Entitlement to service connection for left ankle disability, to include as secondary to service-connected right ankle disability or bilateral pes planus. 5. Entitlement to service connection for bilateral knee condition, to include as secondary to service-connected right ankle disability or bilateral pes planus. 6. Entitlement to service connection for acquired psychiatric disorder, to include depression and anxiety, as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the July 2013, September 2013, and February 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. With respect to the Veteran's bilateral pes planus, the claim is characterized as claim for a higher initial disability rating. A May 2013 rating decision granted service connection for bilateral pes planus and assigned a non-compensable rating. The Veteran did not file a notice of disagreement with this rating decision. Rather, in October 2013, he filed a statement indicating that he would like to file for an increase rating. In the February 2014, the RO granted bilateral plantar fasciitis and combined it with the non-compensable rating for bilateral pes planus. The Veteran subsequently disagreed with this rating and filed a notice of disagreement (NOD) in February 2014. Thereafter, the RO increased the rating for bilateral pes planus to 10 percent effective November 28, 2012 and 30 percent effective October 24, 2013. The Veteran's February 2014 NOD specifically expresses disagreement with the February 2014 rating decision. But, the NOD was filed within less than a year of the May 2013 rating decision that assigned an initial rating of 0 percent. Therefore, the Board finds that the Veteran is contending entitlement for a higher initial disability rating. In addition, although the RO increased the rating for the Veteran's bilateral pes planus since he filed the NOD, the issue remains in controversy as the maximum possible rating has not been assigned. Similarly, the Board notes that the rating for the Veteran's service connected Hepatitis A and right ankle disability were also increased while the claims were pending. However, because the maximum possible rating has not been assigned for these disabilities under the rating criteria, the Board will proceed to adjudicate the claim. The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge, in August 2015and before a Decision Review Officer in October 2013. Transcripts of both hearings are of record. The issues of entitlement for service connection for left ankle disability, bilateral knee disability, and acquired psychiatric disorder, as well entitlement for a higher evaluation for service-connected hepatitis A are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's bilateral pes planus has been manifested by pain on manipulation and use that is not relieved by built-up shoe or arch support before October 24, 2013. 2. The Veteran's bilateral pes planus is not manifested by objective evidence of deformity, inward bowing of the tendo achillis, extreme tenderness, or severe spasm of the Veteran's feet after October 24, 2013. 3. The Veteran's right ankle disability is manifested by marked limitation of motion before July 10, 2014. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating for bilateral pes planus have been met before October 24, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5276 (2017). 2. The criteria for an initial rating higher than 30 percent for bilateral pes planus have not been met after October 24, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5276 (2017). 3. The criteria for an initial 20 percent rating for right ankle disability have been met before July 10, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2017). 4. The criteria for a rating in excess of 20 percent for right ankle disability have not been met after July 10, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), the VA has a duty to notify claimants about requirements to substantiate a claim for VA benefits, and assist in the development of their claim. 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). VA satisfied the duties to notify and assist in this appeal and neither the Veteran nor his representative has asserted any error as to these duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Veteran was provided a VA examination in February, 2013, April, 2013 November 2013, December 2013, February 2014, and July 2014; as discussed in greater details below, the Board finds these examinations adequate upon which to adjudicate the merits of this appeal. II. Increase rating The VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10 (2017). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). A. Pes Planus The Veteran's bilateral pes planus is rated as 10 percent disabling before October 24, 2013 and 30 percent thereafter under DC 5276. Under DC 5276, 50 percent is assigned for pronounced bilateral pes planus manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, which is not improved by orthopedic shoes or appliances. The lesser 30 percent rating is assigned for severe bilateral pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. And the even lesser 10 percent rating is warranted for moderate pes planus where the weight-bearing lines are over or medial to the great toes and there is inward bowing of the tendo achillis and pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, DC 5276. In this case, the Board finds that the evidence does not support a staged rating for the Veteran's pes planus. That is, the evidence of record does not reflect that the Veteran's impairment was less severe between November 28, 2012 and October 24, 2013. Rather, the evidence establishes that a rating of 30 percent, but not higher, is warranted throughout the appeal period. During the hearing, the Veteran testified that his bilateral pes planus causes him pain, which is not completely relieved by orthopedic shoes. See DRO hearing transcript at 3; see also April 2013VA examination. A podiatry outpatient consult note from July 2013 and a December 2013 VA examination further showed that the Veteran had pain on manipulation. VA podiatry E & M Note from October 2013 reflects that the Veteran had painful calluses. In summary, the Veteran's pes planus is manifested by constant pain that is not relieved by orthopedic shoes and painful calluses. These symptoms are consistent severe functional impairment. Based on this evidence, the Board finds that the Veteran's bilateral pes planus nearly proximate a level of impairment contemplated by a 30 percent rating. However, the April 2013, December 2013 or February 2014 VA examinations do not show objective evidence of deformity, inward bowing of the tendo achillis, extreme tenderness, or severe spasm of the Veteran's feet. Therefore, a rating higher than 30 percent is not warranted. Although service connected under various diagnoses, the record indicates that the diagnostic code under which the Veteran is compensated contemplates the symptomatology of the service-connected disability under these various diagnoses. B. Right Ankle The Veteran is currently assigned a 10 percent rating before July 10, 2014 and 20 percent thereafter for his right ankle under DC 5271. DC 5271 provides for a 10 percent rating with moderate limitation of motion and a 20 percent rating for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Terms such as "moderate" and "marked" are not defined in the rating schedule. Rather, VA rating officials must evaluate the evidence and provide decisions which are equitable and just. 38 C.F.R. § 4.6. Normal range of motion of the ankle is 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. After reviewing the record, the Board finds that a 20 percent, but not higher, is warranted throughout the appeal period. With respect to range of motion, a November 2013 VA examination documented 15 degrees of dorsiflexion with the onset of pain at 0 degrees. Plantar flexion was 40 degrees with the onset of pain at 0 degrees. The range of motion did not change after repetitive use test. Although there was functional loss noted, there was no additional functional loss. There was pain on palpation. There was no ankylosis documented. Muscle strength test was normal. This examination does not reflect a limitation of range of motion In addition to the above, the Veteran reported continued episodes of lateral instability as noted in his VA podiatry note from November 2013, which causes a loss of balance. During the hearing, the Veteran testified that his ankle twist persistently. See hearing transcript at 6. Considering that finding of instability, the Veteran's documented limitation of motion with pain starting at 0 degrees, the Board finds that the Veteran's right ankle injury residuals result in a marked level of limitation of motion and overall impairment, and therefore a 20 percent, but not higher, rating under DC 5271 is warranted before July 10, 2014. With respect to the period after July 10, 2014, as noted above, the Veteran's right ankle is rated as 20 percent disabling. 20 percent rating is the highest rating available for the Veteran's right ankle condition under DC 5271. He has not been diagnosed with ankylosis (DCs 5270, 5272), malunion of the os calcic or astragalus (DC 5273) or an astragalectomy (DC 5274), and therefore application of those codes is not appropriate. In summary, the evidence of record shows a level of impairment contemplated by a 20 percent throughout the appeal period. However, the evidence does not support a rating in excess of 20 percent thereafter. ORDER A 30 percent rating for bilateral pes planus before October 24, 2013 is granted (effective November 28, 2012), subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 30 percent for bilateral pes planus after October 24, 2013 is denied. A 20 percent rating for right ankle disability before July 10, 2014 is granted (effective November 28, 2012), subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 20 percent for right ankle disability after July 10, 2014 is denied. REMAND The Board regrets further delay, but additional development is necessary to decide the remaining claim. As explained in detail below, a remand to obtain an adequate nexus opinion is warranted before the Board can adjudicate the claims. An adequate medical opinion, for the purposes of evaluating a Veteran's disability, provides rational analysis that takes into consideration the Veteran's lay statement and medical history to support its conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). A medical examination and opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A. Left Ankle The Veteran contends that his left ankle disability is secondary to his service-connected right ankle disability or bilateral pes planus. Service treatment records reflect that the Veteran injured his left ankle in service in February 1979. The Veteran underwent a VA examination in November 2013, where the examiner concluded that his left ankle disability was less likely than not caused by or secondary to the right ankle condition or bilateral pes planus. The Board finds this opinion inadequate for two reasons. First, the examiner failed to address whether service-connected disabilities aggravated the Veteran's left ankle condition. Second, the opinion did not provide a rational to support this conclusion. Therefore, a remand to obtain an adequate opinion is necessary before adjudicating the claim. B. Bilateral Knee The Veteran asserts that his bilateral knee condition is etiologically related to either his service-connected right ankle condition or bilateral pes planus. The Veteran was given a VA examination in February 2014. At that time, the examiner concluded that the Veteran's bilateral knee condition was less likely than not related to his right ankle condition or his bilateral pes planus. The only rational provided was that there was no evidence in the medical literature to support that his service-connected conditions would cause the Veteran's knee disability. The Board finds the examiner's rational inadequate to the extent the examiner failed to consider the Veteran's lay statement. Furthermore, the examiner did not address whether his right ankle condition or bilateral pes planus could aggravate his bilateral knee pain. For this reason, the claim must be remanded in order to obtain another nexus opinion. C. Acquired Psychiatric Disorder With respect to the claim for acquired psychiatric disorder, the Veteran contends that the pain in his feet, right ankle, and hepatitis A cases his depression. He was provided a VA examination in February 2014, where the examiner concluded that the "Veteran's service-connected residuals of avulsion fracture of the right ankle is less likely than not a primary of the veteran[sic] reported severe mood disorder symptoms and intermittent anxiety disorder symptoms." The Board finds this opinion inadequate to adjudicate the claim. First, the examiner's opinion only addresses whether the Veteran's psychiatric disorder was caused by his right ankle disability without addressing aggravation. Second, the opinion contains mere conclusion without full explanation or rational to support the conclusion. Upon remand, the examiner should address whether the disability is caused or aggravated by any of the service-connected disabilities. D. Hepatitis A The Veteran underwent a VA examination in November 2013. The examination report indicates that the Veteran has a diagnosis of both hepatitis A and B. However, it does not clarify whether the recorded symptoms pertain to the Veteran's hepatitis A or B. Notably, the Veteran is not service-connected for hepatitis B. For this reason, the Board cannot rely on this examination to determine the current severity of residuals of the Veteran's hepatitis A. Therefore, another examination is necessary to adjudicate this claim. Accordingly, the case is REMANDED for the following action: 1. Update VA medical records 2. Thereafter, forward the claims file to an appropriate examiner for a supplemental opinion regarding the etiology of the Veteran's left ankle condition. The need for an additional physical examination of the Veteran is left to the discretion of the examiner. The examiner should review the claims file in its entirety and answer the following questions: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left ankle condition is etiologically related to his active military service? Although the examiner should review the entire file, his/her attention is directed to the documented treatment for left ankle injury in the Veteran's service treatment record dated February 1979. In the alternative, is the Veteran's left ankle condition is at least as likely as not (50 percent or greater probability) caused by his service-connected right ankle disability; and Is it at least as likely as not (50 percent or greater probability) that the Veteran's left ankle condition has been aggravated by his service-connected right ankle condition. In the alternative, is the Veteran's left ankle condition is at least as likely as not (50 percent or greater probability) caused by his service-connected bilateral pes planus; and Is it at least as likely as not (50 percent or greater probability) that the Veteran's left ankle condition has been aggravated by his service-connected bilateral pes planus. The examiner's opinion should consider and comment on the Veteran's lay statement that the pain in his feet and right ankle causes him to favor his left ankle. 3. After completion of directive #1, forward the claims file to an appropriate examiner for a supplemental opinion regarding the etiology of the Veteran's bilateral knee condition. The need for an additional physical examination of the Veteran is left to the discretion of the examiner. The examiner should review the claims file in its entirety and answer the following questions: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral knee condition is etiologically related to his active military service? In the alternative, is the Veteran's bilateral knee condition is at least as likely as not (50 percent or greater probability) caused by his service-connected right ankle disability; and Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral knee condition has been aggravated by his service-connected right ankle condition. In the alternative, is the Veteran's bilateral knee condition is at least as likely as not (50 percent or greater probability) caused by his service-connected bilateral pes planus; and Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral knee condition has been aggravated by his service-connected bilateral pes planus. The examiner's opinion should consider and comment on the Veteran's lay statement. 4. After completion of directive #1, forward the claims file to an appropriate examiner for a supplemental opinion regarding the etiology of the Veteran's acquired psychiatric disorder. The need for an additional physical examination of the Veteran is left to the discretion of the examiner. The examiner should review the claims file in its entirety and answer the following questions: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's acquired psychiatric disorder is etiologically related to his active military service? In the alternative, is the Veteran's acquired psychiatric disorder is at least as likely as not (50 percent or greater probability) caused by his service-connected right ankle disability; and Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder has been aggravated by his service-connected right ankle condition. In the alternative, is the Veteran's acquired psychiatric disorder is at least as likely as not (50 percent or greater probability) caused by his service-connected bilateral pes planus; and Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder has been aggravated by his service-connected bilateral pes planus. In the alternative, is the Veteran's acquired psychiatric disorder is at least as likely as not (50 percent or greater probability) caused by his service-connected hepatitis A; and Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder has been aggravated by his service-connected hepatitis A. In the alternative, is the Veteran's acquired psychiatric disorder is at least as likely as not (50 percent or greater probability) caused by his service-connected pseudofolliculitis barbae; and Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder has been aggravated by his service-connected pseudofolliculitis barbae. The examiner's opinion should consider and comment on the Veteran's lay statement that the pain in his feet and right ankle causes his depression. 5. After completion of directive #1, schedule the Veteran for a VA examination to determine the current severity of residuals of hepatitis A. The claims file should be made available to the examiner, who should indicate in his/her report that the file was reviewed as part of the examination. The examiner should take a complete history from the Veteran. All indicated tests and studies should be completed. The examiner must describe all pertinent symptomatology of residuals, if any, of the Veteran's hepatitis A. In this regard, the Veteran is service-connected for hepatitis A and not residuals of other forms of hepatitis. To the extent possible, the examiner should discuss symptoms that are due to the prior hepatitis A infection. If symptoms cannot be attributed to hepatitis versus other liver disability (to include residuals of other types of hepatitis), the examiner should so state. 6. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 7. Then, readjudicate the claims remaining in appellate status. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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). 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs