Citation Nr: 18155631 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-55 324 DATE: December 4, 2018 ORDER Entitlement to a 50 percent rating effective December 12, 2013, for bilateral pes planus with bilateral plantar fasciitis is granted. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The record evidence shows that, prior to December 12, 2013, the Veteran’s service-connected bilateral pes planus with bilateral plantar fasciitis is manifested by, at worst, moderate symptoms due to complaints of pain in both feet but no swelling. 2. The record evidence shows that, effective December 12, 2013, the Veteran’s service-connected bilateral pes planus with bilateral plantar fasciitis is manifested by pronounced bilateral flatfeet with marked deformity, characteristic calluses, extreme tenderness of the plantar surfaces of the feet, and inward bowing of the Achilles tendons. CONCLUSION OF LAW The criteria for a 50 percent rating effective December 12 ,2013, for bilateral pes planus with bilateral plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1990 to November 1992 in the U.S. Marine Corps. 1. Entitlement to a disability rating greater than 10 percent for bilateral pes planus with bilateral plantar fasciitis The Board finds that the evidence supports assigning a 50 percent rating effective December 12, 2013, for bilateral pes planus with bilateral plantar fasciitis. The Veteran essentially contends that his service-connected bilateral pes planus with bilateral plantar fasciitis is more disabling than currently evaluated. The record evidence supports his assertions, at least effective December 12, 2013. Prior to this date, the record evidence shows that the Veteran’s service-connected bilateral pes planus with bilateral plantar fasciitis is manifested by, at worst, moderate symptoms due to complaints of pain in both feet but no swelling (i.e., a 10 percent rating under DC 5276). See 38 C.F.R. § 4.71a, DC 5276 (2017). For example, although he complained of bilateral foot pain on repeated VA outpatient treatment visits prior to December 12, 2013, he also specifically denied experiencing any bilateral foot swelling when examined in November 2012 and in February and November 2013. In other words, the evidence dated prior to December 12, 2013, shows that the symptomatology attributable to the Veteran’s service-connected bilateral pes planus with bilateral plantar fasciitis was, at worst, moderately disabling and does not support assigning a disability rating greater than 10 percent under DC 5276 during this time period. Id. The Veteran also has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 10 percent prior to December 12, 2013, for his service-connected bilateral pes planus with bilateral plantar fasciitis. Thus, the Board finds that the criteria for a a disability rating greater than 10 percent prior to December 12, 2013, for bilateral pes planus with bilateral plantar fasciitis have not been met. In contrast, the Board finds that the record evidence supports assigning a 50 percent rating effective December 12, 2013, for bilateral pes planus with bilateral plantar fasciitis. It shows that, effective December 12, 2013, this disability is manifested by pronounced bilateral flatfeet with marked deformity, characteristic calluses, extreme tenderness of the plantar surfaces of the feet, and inward bowing of the Achilles tendons (i.e., a 50 percent rating under DC 5276). Id. For example, on VA flatfoot (pes planus) Disability Benefits Questionnaire (DBQ) on December 12, 2013, the Veteran’s complaints included worsening bilateral pes planus with pain radiating up to his bilateral knees. Physical examination of both feet showed pain on use, pain on manipulation, pain accentuated on manipulation, swelling, characteristic calluses, extreme tenderness of the plantar surfaces, marked deformity, and inward bowing of the Achilles tendons symptoms. None of these symptoms were relieved by orthopedic shoes or appliances. Although marked inward displacement and severe spasm of the Achilles tendons was present, this symptom was relieved by orthopedic shoes or appliances. The Veteran reported using crutches 50 percent of the time due to his bilateral Achilles tendonitis and “to minimize the pain in the feet due to weight bearing.” X-rays of the feet were normal. The diagnosis was bilateral pes planus. On VA foot conditions DBQ in February 2016, the Veteran’s complaints included bilateral foot pain “when he is on his feet for a long period of time.” He reported that flare-ups of pain are “so bad he cannot walk the next day which makes it hard for him to keep a job.” He described his flare-ups as “tender to the touch with a jelly-like substance in the ankle and under the middle of both feet which makes it difficult to walk up stairs.” Physical examination of the feet showed pain on use, pain accentuated on use and on manipulation, no swelling, characteristic calluses, or extreme tenderness of the plantar surfaces, no objective evidence of marked deformity or marked pronation, and no inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon. None of the Veteran’s symptoms were relieved by arch supports. There was pain on weight bearing in both feet. The Veteran experienced functional loss of both feet due to pain and “especially when walking for long.” A retrocalcaneal spur was noted on diagnostic testing. The diagnosis was bilateral pes planus. The Veteran contends that his service-connected bilateral pes planus with bilateral plantar fasciitis is more disabling than currently evaluated. The Board finds that the record evidence supports his assertions effective December 12, 2013, when VA examination documented the presence of pronounced bilateral flatfeet symptoms including pain on use, pain on manipulation, pain accentuated on manipulation, swelling, characteristic calluses, extreme tenderness of the plantar surfaces, marked deformity, and inward bowing of the Achilles tendons symptoms. The December 2013 VA examiner stated that none of these symptoms of pronounced bilateral flatfeet were relieved by orthopedic shoes or appliances. The Veteran also reported using crutches for ambulation 50 percent of the time in order to relieve his bilateral foot pain. Similarly, he reported on subsequent VA examination in February 2016 that his flare-ups of bilateral foot pain were so severe that he was unable to walk the following day. Physical examination again showed pain on use, pain accentuated on use and on manipulation, and pain on weight bearing. And, again, none of these symptoms were relieved by arch supports. The February 2016 VA examiner concluded that the Veteran experienced functional loss of both feet due to pain and “especially when walking for long.” In other words, the record evidence dated since December 12, 2013, supports the assignment of a 50 percent rating effective on this date under DC 5276 due to the presence of pronounced bilateral flatfeet symptoms as a result of the Veteran’s service-connected bilateral pes planus with bilateral plantar fasciitis. See 38 C.F.R. § 4.71a, DC 5276 (2017). In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a 50 percent rating effective December 12, 2013, for bilateral pes planus with bilateral plantar fasciitis have been met. See also 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran also contends that he incurred a bilateral knee disability during active service. The Board acknowledges that the Veteran has complained of and been treated for a bilateral knee disability since his service separation. The Board also acknowledges that, in a “Physician’s Statement” dated on November 26, 2012, and date-stamped as received by the Agency of Original Jurisdiction (AOJ) on December 11, 2012, a private clinician addressed the contended etiological relationship between the Veteran’s current bilateral knee disability and active service by checking a box which stated: One cannot say exactly how long this condition existed prior to date of diagnosis but this type of disability could be present for years before becoming symptomatic. It is my opinion that this condition could have as likely as not been caused or aggravated by the Veteran’s active duty service time. (Emphasis added). The rationale for this opinion was that the Veteran’s “activity related during Marine Corps duties” which included physical training and running contributed to his current “degenerative joint changes (arthrosis/arthritis).” Having reviewed the December 2012 opinion, the Board finds that it is not probative on the issue of whether the Veteran’s current bilateral knee disability is related to active service. The Board notes in this regard that current regulations provide that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102 (2017); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); and Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion.” Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Accordingly, even if the December 2012 medical opinion is viewed in the light most favorable to the Veteran, this evidence does not establish service connection for a bilateral knee disability because it is based entirely on what the Veteran reported regarding his in-service activities and does not reflect clinical data. The record evidence otherwise does not address the contended etiological relationship between the Veteran’s bilateral knee disability and active service. The Board notes here that VA’s duty to assist includes providing an examination where necessary and, to date, the AOJ has not provided the Veteran with an examination to determine the nature and etiology of his bilateral knee disability. Thus, the Board finds that, on remand, the Veteran should be provided with an examination to determine the nature and etiology of his bilateral knee disability. 2. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran next contends that he incurred obstructive sleep apnea during active service. The Board notes that, although the AOJ denied the Veteran’s service connection claim for obstructive sleep apnea in the currently appealed rating decision issued in August 2012 on the basis that there was no diagnosis of this disability in the record evidence at that time, he subsequently was diagnosed as having obstructive sleep apnea on VA sleep study conducted in August 2013. The Board again notes that VA’s duty to assist includes providing an examination where necessary. Thus, the Board finds that, on remand, the Veteran should be provided with an examination to determine the nature and etiology of his obstructive sleep apnea. 3. Entitlement to a TDIU is remanded. With respect to the Veteran’s TDIU claim, the Board notes that adjudication of the other claims being remanded to the AOJ likely will impact adjudication of the TDIU claim. Thus, the Board finds that these issues are inextricably intertwined and adjudication of the Veteran’s TDIU claim must be deferred. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any bilateral knee disability. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral knee disability, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. A separate opinion and rationale should be provided for each of the Veteran’s knees, if possible. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a bilateral knee disability, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised not to review or rely upon a “Physician’s Statement” dated on November 26, 2012, and date-stamped as received by VA on December 11, 2012, in preparing his or her opinion. 2. Schedule the Veteran for an examination to determine the nature and etiology of any obstructive sleep apnea. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that obstructive sleep apnea, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for obstructive sleep apnea, alone, is insufficient rationale for a medical nexus opinion. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel