Citation Nr: 18144846 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 13-10 446 DATE: October 25, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for left foot pes planus and plantar fasciitis is denied. Entitlement to an initial disability rating in excess of 10 percent for right foot pes planus and plantar fasciitis also is denied. REMANDED Entitlement to service connection for a urinary condition, claimed as urinary frequency, is remanded. FINDING OF FACT Since October 3, 2008, the bilateral (left and right foot) pes planus and plantar fasciitis has not been manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo-achillis on manipulation, which is not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW The criteria for an increased initial disability rating for left foot pes planus and plantar fasciitis, currently rated as 30-percent disabling from October 3, 2008, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5284-5276. The criteria for an increased initial disability rating for right foot pes planus and plantar fasciitis, currently rated as 30-percent disabling from October 3, 2008, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5284-5276. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1997 to March 1998 and from March 1999 to October 2008. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Travel Board hearing; a transcript of the proceeding is of record. This matter was most recently before the Board in March 2015 when it was remanded for additional development, specifically, new examinations reassessing the severity of this bilateral foot disability. In his September 2017 and October 2017 substantive appeals (on VA Form 9), the Veteran requested that a videoconference hearing before the Board be scheduled to address additional issues of entitlement to increased ratings for a bilateral eye disability and a right knee disability. To date, the Veteran has not received a hearing on these other issues. Accordingly, a hearing will be scheduled for the Veteran regarding these other issues before a Board decision is rendered concerning them. Entitlement to increased disability ratings for left and right foot pes planus with plantar fasciitis, currently rated as 30-percent disabling effectively since October 3, 2008, for each foot Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the veteran’s case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the “present level” of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA’s adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). DC 5276 provides ratings for acquired flatfoot. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 30 percent disabling for a bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo-achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 50 percent disabling for a bilateral disability. 38 C.F.R. § 4.71a. DC 5279 provides a 10 percent disability rating for anterior metatarsalgia (Morton’s disease), whether unilateral or bilateral. A 10 percent rating is the maximum schedular rating available under DC 5279. 38 C.F.R. § 4.71a. DC 5280 provides ratings for unilateral hallux valgus. Unilateral hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. A 10 percent rating is the maximum schedular rating available under DC 5280. 38 C.F.R. § 4.71a. DC 5284 provides ratings for residuals of other foot injuries. Severe residuals of foot injuries are rated 30 percent disabling. A Note to DC 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a higher disability rating for his service-connected right and left pes planus with plantar fasciitis. 38 C.F.R. § 4.71a, DCs 5284-5276. Here, from October 3, 2008, there was no evidence of actual loss of use of the feet, or marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo-achillis on manipulation, that was not improved by orthopedic shoes or appliances, to warrant a higher disability rating. Id. The Veteran was provided a VA examination in August 2008. An examination of both feet revealed tenderness and pes planus, as well as a moderate degree of valgus on the bilateral feet and a moderate degree of forefoot/midfoot mal-alignment, which cannot be corrected by manipulation. The examiner reported the Veteran did not have any limitation with standing and walking and did not require any type of support with his shoes. The Veteran was diagnosed with bilateral pes planus and plantar fasciitis. Subjective factors were noted as pain. The Veteran was again provided a VA examination in August 2010 VA. Pes planus was noted, as well as a slight degree of valgus on the bilateral feet and a slight degree of forefoot/midfoot mal-alignment, which cannot be corrected by manipulation. The examiner noted the Veteran did not have any limitation with standing and walking and did not require any type of support with his shoes. Subjective factors were noted as flat feet and objective factors were tender arches and decreased arches bilaterally. A July 2015 VA examination showed extreme tenderness of the bilateral plantar surfaces and marked pronation of both feet, improved by orthopedic shoes. Pain on weight-bearing, swelling, and interference with standing were noted. Pain on use of the feet and manipulation were also noted. Accordingly, from October 3, 2008, there was no evidence of actual loss of use of the feet, or marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo-achillis on manipulation, that was not improved by orthopedic shoes or appliances, to warrant a higher disability rating. 38 C.F.R. § 4.71a, DCs 5284-5276. None of the VA examiners found that the Veteran had actual loss of use of the foot, and the Veteran did not allege such at either examination. Although extreme tenderness of the plantar surfaces and marked pronation were noted at the July 2015 VA examination, they are improved by orthopedic shoes. While pain on manipulation was also noted, severe spasm of the tendo-achillis on manipulation was not documented at the examination. Thus, the Veteran’s feet did not meet the criteria for a disability rating in excess of 30 percent during this appeal period. Id. The Board has considered the application of the remaining DCs under the current version of the regulation in an effort to determine whether a higher rating may be warranted, but finds none are raised by the medical evidence. The only DCs pertaining to the foot that allow ratings in excess of 30 percent are DC 5278 for claw foot and DC 5283 for malunion or non-union of tarsal or metatarsal bones with actual loss of use of the foot. The requirements for higher ratings under these codes are not raised by the evidence. Claw foot was not observed by any VA examiner. Additionally, actual loss of use of the feet is not established during this appeal period. As such, higher or separate ratings for the Veteran’s left and right pes planus and plantar fasciitis are not warranted under any other DC during the appeal period. 38 C.F.R. § 4.71a. Further, a separate rating under DC 5280 is not warranted, as there is no evidence of severe hallux valgus during the appeal period. The Veteran clearly experiences functional impairment, pain, and pain on motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Board notes that the Veteran’s functional impairments have been considered in assigning the current disability rating. The Board has also considered whether staged ratings are appropriate in this case. See Hart, 21 Vet. App. at 505; Francisco, 7 Vet. App. 55 (1994). However, at no time during the relevant appeal period has the service-connected left and right pes planus and plantar fasciitis more nearly met or nearly approximated the criteria for a higher disability rating. Accordingly, staged ratings are not for application in the instant case. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran’s competent and credible belief that his disability is worse than the assigned disability rating, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran’s lay statements. In sum, the preponderance of the evidence is against the assignment of initial disability ratings in excess of 30 percent for the service-connected left and right pes planus and plantar fasciitis at any time from October 3, 2008. The claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Service Connection for a Urinary Condition Further development is necessary to comply with the terms of the May 2016 remand. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board’s remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. An August 2008 VA examination indicated that there was inadequate data to establish any diagnosis of the Veteran’s urinary complaints. In its March 2015 decision, the Board found the examination inadequate due to the examiner’s failure to specify why there was insufficient data to render a diagnosis. The Board remanded for a new examination to determine the nature and etiology of any urinary condition found to be present. More importantly, the examiner was directed to note recent VA treatment records that documented a urinary tract infection (UTI) as an “active problem” and to comment on the Veteran’s complaints regarding urinary frequency and urgency documented in September 2000, as well as his history of denying frequent urination documented from October 2000 to July 2008. The Veteran underwent a new examination in July 2015. After reviewing the Veteran’s claims file and examining him in person, the examiner reported that the Veteran had a symptom of urinary frequency and that was at least as likely as not directly service connected. She indicated that although this symptom was present in 2000 and had been reported in recent VA records, there was no diagnosis associated with the symptom and that the Veteran had never had a UTI or diagnosis. The examiner noted that the Veteran had undergone over six urinalyses, renal ultrasounds, and abdominal computerized tomography (CAT scans) with no diagnoses rendered. She also noted that at least two VA providers had reasoned that the Veteran’s symptoms were from overhydration. Although the July 2015 VA examiner provided a thorough rationale, she failed to specifically comment on the Veteran’s complaints of urinary frequency and urgency documented in September 2000 and his history of denying frequent urination from October 2000 to July 2008. As a result of these Stegall violations, further development is needed. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed urinary condition. The claims folder, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner is asked to identify any current urinary conditions present. In making these determinations, the examiner should note recent VA treatment records which document a urinary tract infection as an “active problem.” The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed urinary condition is related to his military service. In making these necessary determinations, the examiner is specifically asked to comment on the Veteran’s complaints regarding increased urinary frequency and urgency documented in September 2000, as well as subsequent records from October 2000 through July 2008 in which the Veteran denied a history of frequent urination. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner should fully discuss why this is the case. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel