Citation Nr: 18156517 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 15-04 640 DATE: December 10, 2018 ORDER Service connection for right foot metatarsalgia is granted. An initial increased rating of 50 percent for bilateral pes planus is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Service connection for a right foot disability other than metatarsalgia and pes planus, is remanded. FINDINGS OF FACT 1. A January 2015 VA treatment record establishes a current diagnosis of chronic right foot metatarsalgia. A September 1988 service treatment record (STR) shows diagnosed persistent right foot metatarsalgia associated with the Veteran’s now service-connected pes planus. The remaining medical evidence shows continued treatment for chronic right foot pain including diagnosed metatarsalia. Taking this evidence together, the record clearly indicates that the Veteran’s right foot disabilities have persisted and progressed since service. Resolving reasonable doubt in the Veteran’s favor, the Board of Veterans’ Appeals (Board) finds that the evidence is at least equipoise that the Veteran’s right foot metatarsalgia began in service and has persisted since then. 2. VA treatment records show continual treatment for the Veteran’s bilateral service-connected pes planus; he was medically discharged from service due to these symptoms, and the treatment records in the claims file show worsening symptoms since then. In a January 2015 VA treatment record, the Veteran reported persistent pain despite rest, ice, medications, injections, and custom insole use. On examination, there was pain with palpation over the insertion of the medial band of the plantar fascia, antalgic gait, and grossly overpronated foot structure bilaterally. The podiatrist recommended a cast boot and crutches and discussed flat foot reconstructive surgery as a possible next treatment option. Overall, the Board finds that that the Veteran’s clinical and disability picture, as summarized in this treatment record, most closely approximates the 50 percent rating under Diagnostic Code (DC) 5276. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that an increased rating of 50 percent, the maximum available under DC 5276, is warranted during the entire appeal period. [The Board acknowledges that the March 2015 examination report did not provide the objective findings necessary to support the increased rating. However, the Board assigns more probative weight to the contemporaneous VA treatment records because they reflect the findings of the Veteran’s treating specialist physicians. In addition, and as more fully described in the remand instructions, the Board finds that the examiner improperly focused on the possible contribution of the Veteran’s weight and occupation to his foot pain and did not provide a fair-minded and detailed opinion regarding the possible relationship between the Veteran’s service-connected pes planus and the Veteran’s other foot disabilities. Accordingly, the Board cannot assign significant probative weigh to the examiner’s findings and conclusions.] CONCLUSIONS OF LAW 1.The criteria for service connection for right foot metatarsalia have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for an initial increased rating of 50 percent for bilateral pes planus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5276 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1987 to March 1989. These matters are before the Board on appeal from September 2013 and July 2015 rating decisions. In his February 2015 VA Form 9 (substantive appeal), the Veteran requested a Board hearing for his pes planus increased rating appeal. The RO then merged this appeal with the appeal stream stemming from the Veteran’s September 2014 claim for service connection for right foot disabilities. The RO subsequently issued a rating decision and a statement of the case (SOC) adjudicating both issues (increased rating for pes planus and service connection for right foot disabilities). In his November 2017 Form 9 (which appealed increased rating for pes planus and service connection for right foot disabilities), the Veteran declined a Board hearing and provided a statement referencing all the disabilities on appeal. In this case, the Board is comfortable relying on the second Form 9 where the Veteran declined a Board hearing because the evidence supports granting service connection and an increased rating, and also indicates that an updated medical opinion is needed before the remaining issue may be fairly adjudicated. Accordingly, the Board seeks to avoid the unnecessary delay associated with scheduling a Board hearing and finds that there is no prejudice to the Veteran with proceeding. After reviewing the evidence of record, the Board separated the issue of service connection for right foot metatarsalgia (granted there) and service connection for other right foot disabilities aside from metatarsalgia (remanded here). Service connection for right foot metatarsalgia For the reasons outlined above, service connection for right foot metatarsalgia is granted. Increased rating for bilateral pes planus For the reasons outlined above, an initial increased rating of 50 percent for bilateral pes planus is granted. REASONS FOR REMAND Service connection for a right foot disability other than metatarsalgia and pes planus is remanded. A remand is required because the March 2015 VA examination report does not provide sufficient findings or explanations for the Board to fairly adjudicate the claim. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Send the Veteran a letter asking him to identify all treatment providers for his feet, and to authorize VA to obtain available records for association with the claims file. In the letter, please invite the Veteran to send in statement describing his right foot symptoms and any associated functional impairment. 3. Ensure the Veteran’s COMPLETE STRs are associated with the claims file, to include entrance and separation examination reports. 4. Then schedule the Veteran for a VA examination with a podiatrist to assess the nature and cause of the Veteran’s right foot disabilities. The claims folder and all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed. The Board recognizes that the detailed medical questions require significant work on the part of the medical examiner. The Board regrets the need to remand the matter to the RO, however, the Board is unable to adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with these directives (that is, full and thoroughly explained answers to each of the questions) to avoid additional delays in adjudication. The Board notes that the March 2015 VA examiner appeared to attribute the Veteran’s right foot pain and associated disabilities to the Veteran’s age, weight, and occupation. However, the Board specifically directs the examiner to focus the analysis on the legal question at issue here, whether the diagnosed disabilities are at least as likely as not related to the Veteran’s service and/or caused or aggravated by the already service-connected foot disabilities (as specifically directed below). In other words, the fact that the Veteran’s weight and standing may contribute to foot pain and disability does not mean that the Veteran’s service-connected pes planus (which has existed since service) could not have contributed to the development of the Veteran’s other right foot disabilities including plantar fasciitis, arthritis, and tarsal tunnel syndrome. [The Board draws the examiner and RO’s attention to the Veteran’s extensive VA podiatric treatment records, which show current diagnoses of plantar fasciitis, tarsal tunnel, and arthritis, and to the Veteran’s STRs also showing repeated treatment for foot pain, including an August 1988 STR which lists the assessment as “? Tarsal condition,” that will hopefully provide helpful information to the RO and the examiner.] Examination Instructions The examiner should answer the following questions based on (1) a review of the claims file and (2) interview and examination of the Veteran. a) Identify any current right foot disabilities, other than pes planus and metatarsalgia, to include established plantar fasciitis, tarsal tunnel syndrome, arthritis, and claimed limb pain. Any needed diagnostic testing should be done. b) Is it at least as likely as not (a 50 percent or better probability), that any diagnosed foot disability began in service (or within one year of separation for arthritis or tarsal tunnel syndrome) or is otherwise related to the Veteran’s active service? c) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was CAUSED by the Veteran’s service-connected foot disabilities? d) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability AGGRAVATED by the Veteran’s service-connected foot disabilities? (Aggravation in this context means any worsening beyond natural progression.). A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel