Citation Nr: 18153283 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-44 873 DATE: November 27, 2018 ORDER Entitlement to service connection for fibromyalgia due to an undiagnosed illness is granted. Entitlement to an initial 10 percent rating for bilateral pes planus, prior to February 11, 2014, is granted. Entitlement to an initial rating in excess of 50 percent for bilateral pes planus since February 11, 2014, is denied. FINDINGS OF FACT 1. The Veteran served in Southwest Asia during the applicable time period and has objective indications of a qualifying chronic illness. 2. Prior to February 11, 2014, the Veteran’s bilateral pes planus resulted in moderate, but not severe or pronounced, symptoms. 3. Since February 11, 2014, the Veteran has been in receipt of the maximum schedular rating for his bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic multi-symptom illness, diagnosed as fibromyalgia, have been met. 38 U.S.C. § 1110, 1117, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.317 (2018). 2. The criteria for a compensable, 10 percent disability rating before February 11, 2014 for bilateral pes planus have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.6, 4.71a, DC 5276 (2018). 3. Since February 11, 2014, the criteria for a disability rating in excess of 50 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.6, 4.71a, DC 5276 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable service with the United States Army from October 1990 to October 2010, during which time he was awarded the Bronze Sar, Army Commendation Medal, and the Meritorious Service Medal. The Veteran appeals their rating decisions from March 2014 and July 2016 from the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2018). Compliant VCAA notice was provided in September 2012. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran’s service treatment records are on file, as are various post-service medical records. VA examinations were conducted and medical opinions obtained. 1. Entitlement to service connection for fibromyalgia due to an undiagnosed illness is granted. Here, the Veteran contends that his current disability of fibromyalgia should be service connected. The Veteran further contends that their fibromyalgia was caused by an undiagnosed illness. Compensation may be granted for a disability due to an undiagnosed illness of a veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C. § 1117. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the VA Secretary. “Qualifying chronic disability” includes (a) undiagnosed illness and (b) medically unexplained chronic multi-symptom illness, to include chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. The period within which such disabilities must become manifest to a compensable degree in order for entitlement to compensation to be established is currently December 31, 2021. 38 C.F.R. § 3.317 (a)(1)(i). In order to qualify, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)–(b). The term “objective indications of a qualifying chronic disability” includes both “signs,” in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 U.S.C. § 1117(g). The term “medically unexplained chronic multi-symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). The first element of Gulf War Illness analysis requires that the Veteran had service in Southwest Asia theater of operations from August 2, 1990 to the present day. The Veteran here served a Combat Tour in Iraq in 2005 through 2006. Iraq qualifies as a Southwest Asia theater country. As such, the first element is met. The second element of Gulf War Illness analysis requires that there are objective indications of a chronic disability. Here, the Veteran is noted to have ongoing pain in a follow up appointment for treatment for his fibromyalgia in March 2018. The Veteran also notes in his VA Form 9 from April 2018 that he is suffering from fibromyalgia and he is taking Gabapentin as prescribed. The follow up appointment confirmed that the Veteran is taking this medicine as prescribed. During this follow up appointment, the Examiner noted that the Veteran has pain in his neck and lower back as well as muscles all over his body. In another doctor’s appointment from April 2018, the Examiner diagnosed the Veteran with polyarthralgia and noted that the Veteran had inflamed joints. Finally, the Veteran is noted to have constant or nearly constant fibromyalgia symptoms in a VA Examination from April 2016. Here, there are a variety of objective indications over a two-year period of time by both the Veteran and medical professionals. As such, the second element is met. The third element of Gulf War Illness analysis requires that the chronic disability from which the Persian Gulf War Veteran is suffering be a qualifying disability. The examiner from the VA Examination from May 2016 noted that the Veteran’s fibromyalgia as a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. Here, the Veteran suffers from fibromyalgia and has been diagnosed with suffering from the disease since April 2016. Fibromyalgia is an example of a qualifying medically unexplained chronic multi-symptom illness. Since the Veteran is suffering from a qualifying medically unexplained chronic multi-symptom illness, the third element is met. Here, the Veteran is a Persian Gulf War Veteran with objective indications of a qualifying disability. In light of the foregoing analysis, the Board is satisfied that the claim for service connection for fibromyalgia due to a medically unexplained chronic multi-symptom illness is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.317; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. The claim of entitlement to compensable rating for bilateral pes planus before February 11, 2014 is granted Here, the Veteran contends that his bilateral pes planus, or flatfoot disability, should have been rated at a compensable rating before his first compensable rating in February 2014. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261¬–62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. 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 and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207–08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43–44 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson, 7 Vet. App. at 39–40; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Competency of evidence differs from weight and credibility. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). Under Diagnostic Code 5276 for acquired flatfoot, a noncompensable rating is assigned where the flatfoot is mild with symptoms relieved by built-up shoe or arch support. A 10 percent disability rating is assigned where flatfoot is moderate, with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, either bilateral or unilateral. For severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, 20 and 30 percent disability ratings (unilateral and bilateral, respectively) are assigned. For pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliance, 30 and 50 percent disability ratings (unilateral and bilateral, respectively) are assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Words such as “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, 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. Prior to February 11, 2014, there are two main sources of information regarding the severity of the Veteran’s pes planus. At an August 2010 VA examination, the examiner reported that the Veteran was using orthotics, but had no limitation with standing or walking. Upon examination, the examiner noted that the Veteran had a normal gait, with no evidence of tenderness, swelling, deformity, callosities, uneven shoe wear, or skin or vascular changes of either foot. An October 2011 private podiatric treatment record reflects that the Veteran complained of pain in both feet that was aggravated by standing or using stairs. The Veteran reported that his orthotics helped, but he was still walking for exercise. Upon examination, the private podiatrist noted that the Veteran had no edema in either foot, but that there was calcaneal valgus as well as medial deviation of the medial malleolus bilateral. The Veteran had minimal resupination prior to heel lift bilaterally with mild abducted forefoot. The Veteran had pain with heel raises and mild pain on palpation. The Veteran had a muscle strength of 5/5 in his feet with no calluses. The Veteran did have a mild decrease in the range of motion of his first metatarsophalangeal joint. The private podiatrist recommended that the Veteran stretch and adjust his orthotics. Based on this information, the Board finds that, prior to February 11, 2014, the Veteran’s bilateral pes planus most closely approximated the moderate disability described by the 10 percent rating. Given the Veteran’s complaints of pain with use of his feet, this most closely matches the symptoms he described and as were shown by the private podiatric examination. During this period, however, the Veteran’s pes planus did not meet or approximate the level described by the 30 percent rating. Notably, the Veteran did not have marked deformity, indication of swelling, or callosities noted on either his VA examination or his private examination. Since February 11, 2014, the Veteran has been rated at 50 percent for his bilateral pes planus, the highest possible rating. A rating in excess of that level for this period is not warranted. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. N. P. Jochem, Associate Counsel