Citation Nr: 18158235 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-51 812 DATE: December 14, 2018 ORDER Entitlement to an effective date for grant of service connection for pes planus is granted from August 29, 2011. Entitlement to a compensable disability rating for pes planus with calcaneal heel spurs prior to July 22, 2016, and in excess of 30 percent from that date is denied. Entitlement to a compensable rating for left ear hearing loss disability is denied. Entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities is denied. REMANDED Entitlement to service connection for bilateral knee disability is remanded. FINDINGS OF FACT 1. The Veteran submitted a claim for entitlement to service connection for left ear hearing loss disability, lower back disability, bilateral knee disability, pes planus, and bilateral heel spurs on August 29, 2011. 2. Prior to July 22, 2016, the Veteran’s pes planus disability manifested in mild symptoms that were relieved by arch supports. 3. From July 22, 2016, the Veteran’s pes planus disability manifested in severe bilateral symptoms including accentuated pain on use and swelling. 4. At worst, the Veteran has level I hearing loss in the left ear. 5. The Veteran has been in receipt of compensable ratings for service-connected lumbar spine disability with an effective date to the date of original claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date for grant of service connection for pes planus of August 29, 2011 have been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.400. 2. The criteria for entitlement to a compensable rating for pes planus with calcaneal heel spurs prior to July 22, 2016, or to a rating in excess of 30 percent from that date have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. § 3.102, 4.71a, Diagnostic Code 5276. 3. The criteria for an initial compensable rating for left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. 4. The criteria for entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities have not been met. 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1974 to March 22, 1978 and from March 23, 1978 to March 1987. The Board notes that the Veteran filed a notice of disagreement for the denial of entitlement to service connection for low back disability in the May 2013 rating decision. Service connection for low back disability was granted in an August 2016 rating decision. The Veteran filed a timely notice of disagreement with that decision’s assignment of a noncompensable rating level for low back disability. In a June 2018 rating decision, the Veteran was granted a 10 percent disability evaluation from August 29, 2011. The Veteran has not perfected an appeal of the June 2018 rating decision’s assignment of disability evaluation, however, the appeal for service connection of low back disability has been satisfied. Accordingly, the issue is no longer before the Board. Effective Date 1. Entitlement to an effective date prior to July 22, 2016 for grant of entitlement to service connection for pes planus with bilateral calcaneal heel spurs The Veteran contends that the effective date for the award of service connection for pes planus should be earlier than the currently assigned date of July 22, 2016. After a thorough review of the evidence, the Board finds that the effective date for the grant of service connection for the Veteran’s pes planus disability should be August 29, 2011. Generally, the effective date for an award of service connection is the day after service separation or the date entitlement arose, whichever is later, if the claim is received within one year of the date of separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The Veteran submitted a claim for compensation that was stamped as received at the regional office (RO) on August 29, 2011. The Veteran’s application included request for entitlement to service connection for “flat feet” and “heel spurs.” As discussed elsewhere in this decision, the Veteran’s service treatment records (STRs) discuss a possible diagnosis of flat feet and heel spurs in 1986. At the April 2013 VA examination, the examiner diagnosed a current condition of bilateral heel spurs, but not pes planus (flat feet). The examiner noted the pes planus diagnosis in 1986 but noted that the coincident X-ray showed heel spurs but no other deformity. The examiner then stated at the time of the 2013 examination, the Veteran had no pain in the feet. Ultimately, the RO granted service connection at a noncompensable level for bilateral heel spurs with an effective date of August 29, 2011, the date of claim, and denied service connection for pes planus. The Veteran timely disagreed with the assignment of noncompensable rating for right and left heel spurs in a May 2014 notice of disagreement, and for the denial of service connection for pes planus. The Veteran underwent another VA examination of the feet in July 2016. The examiner diagnosed flat feet, heel spurs, and plantar fasciitis, all bilateral. The examiner opined that the Veteran’s bilateral heel spurs were caused by the bilateral pes planus that was incurred during active service. The RO then awarded service connection for flat feet with heel spurs with an effective date of July 22, 2016, the date of the VA examination diagnosing flat feet. The RO discontinued the prior separate rating for right and left heel spurs at a noncompensable rating that had been in effect since August 29, 2011, and created a new evaluation for flat feet with bilateral heel spurs at a 30 percent rating with an effective date of July 22, 2016. The Veteran timely filed a perfected appeal of the decision. In the May 2014 notice of disagreement, the Veteran’s attorney generously conceded that the Veteran was unable to self-diagnose flat feet. However, the United States Court of Appeals for Veterans Claims has held that certain conditions capable of lay observation are self-diagnosable where the matter involved, as here, was not medical causation. “The appellant’s pes planus is the type of condition that lends itself to observation by a lay witness.” Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (continuous post-service symptoms of painful feet). The Board agrees that the Veteran is competent to report symptoms of flat feet and observable manifestations of the condition. Additionally, the Board notes that the July 2016 examiner opined that the Veteran’s flat feet condition that had existed since active service had caused the heel spurs that were also diagnosed during active service and during the 2013 VA examination and during the 2016 VA examination. Accordingly, it is illogical based on the medical evidence of record (and the Veteran’s lay contentions of observable flat feet) that the Veteran had flat feet during active service and during the 2016 VA examination, but not in April 2013, while being diagnosed at those three junctures with the secondary condition of heel spurs caused by flat feet. Since the RO ultimately granted service connection for pes planus as part and parcel of the bilateral heel spurs disability, the Board finds that the Veteran’s notice of disagreement and appeal for the initial noncompensable rating for heel spurs incorporated an appeal for both the denial of service connection for flat feet and its disability evaluation level, discussed below. The evidence does not show that a claim for service connection for pes planus was made prior to August 29, 2011. The Board finds that the appropriate effective date for grant of service connection for bilateral pes planus with heels spurs is August 29, 2011, the date of claim. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The Board also acknowledges that the Veteran has contested the applicable grant of service connection date for all the claims arising from the submission on August 29, 2011. The Board notes that this is the earliest date that the Veteran submitted a claim for service connection for any disability, and, accordingly, any resulting appeal for earlier effective date for grant of service connection will at the earliest, be August 29, 2011, which is the currently assigned effective date for the whole of the Veteran’s claims. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 2. Entitlement to an initial compensable rating for pes planus with bilateral calcaneal heel spurs prior to July 22, 2016 and in excess of 30 percent from that date The Veteran is seeking an initial compensable rating for pes planus with heel spurs and a rating in excess of 30 percent from July 22, 2016. The effective date of service connection, as explained above, is August 29, 2011 for pes planus with bilateral heel spurs. The Veteran is assigned a noncompensable rating for flat feet with bilateral heel spurs under Diagnostic Code 5276 prior to July 22, 2016, and 30 percent from that date. Diagnostic Code 5276 provides ratings for acquired flat foot. Mild flat foot with symptoms relieved by built-up shoe or arch support is rated as noncompensable (0 percent) disabling. Moderate flat foot with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flat foot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flat foot, 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 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. At the April 2013 VA examination, the Veteran complained of painful feet and the examiner noted that the symptoms were relieved by arch supports or built-up shoes or orthotics. The examiner noted that the Veteran had decreased longitudinal arch height on weight-bearing. The examiner recorded no pain on use of the feet, in contrast to the Veteran’s remarks that he had painful feet since he bought new shoes a few months earlier. There was no pain on manipulation of the feet. There was no swelling indicated on use. There were no characteristic calluses or any calluses caused by flat foot condition. There was no objective evidence of marked deformity or pronation of the foot. The weight-bearing line did not fall over or medial to the great toe. There was no inward bowing, marked inward displacement, or severe spasm of the Achilles’ tendon. The examiner diagnosed bilateral heel spurs but not flat feet. At the July 22, 2016 VA examination, the examiner confirmed a diagnosis of bilateral pes planus, bilateral plantar fasciitis, and bilateral heel spurs. The Veteran complained of mild pain to the bottom of the feet on a regular basis. The examiner noted that the Veteran had decreased longitudinal arch height on weight-bearing. The examiner recorded accentuated pain on use of the bilateral feet. There was no pain on manipulation of the feet. There was swelling indicated bilaterally on use. There were no characteristic calluses. There was not extreme tenderness of plantar surfaces. The Veteran reported using arch supports without relief of symptoms bilaterally. There was no objective evidence of marked deformity or pronation of the foot. The weight-bearing line fell over or medial to the great toe bilaterally. There was inward bowing bilaterally, but not marked inward displacement, or severe spasm of the Achilles’ tendon. A February 2017 VA treatment note documented no complaints of pain in the feet or complaints of pain with ambulation. A November 2017 VA phone call record documented complaints of swelling feet bilaterally. Applying the facts of this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for bilateral pes planus prior to July 22, 2016. The Board notes that moderate pes planus (10 percent rating) with the weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, bilateral or unilateral, is not shown. Rather, before July 22, 2016, a VA examination showed that the Veteran’s bilateral pes planus was not diagnosed, and was diagnosed only as bilateral heel spurs. 38 U.S.C. § 38 C.F.R. § 4.71a, Diagnostic Code 5276. As discussed earlier, pes planus is a condition capable of lay observation where the matter involved, as here, was not medical causation. “The appellant’s pes planus is the type of condition that lends itself to observation by a lay witness.” Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (continuous post-service symptoms of painful feet). The Board agrees that the Veteran is competent to report symptoms of flat feet and observable manifestations of the condition since leaving active service. However, the Board notes that the examiner recorded that the Veteran’s symptoms, reported as painful feet upon purchase of new shoes, were relieved with arch supports at the April 2013 examination. Accordingly, the Veteran does not meet the criteria for a higher 10 percent rating for pes planus with bilateral heel spurs prior to July 22, 2016. The Board finds that since July 22, 2016, the Veteran does not meet the criteria for a higher rating than the 30 percent currently assigned. The next highest evaluation level is 50 percent for bilateral symptoms of pes planus such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of tendo achillis on manipulation, not improved by orthopedic shoes or appliances. At the July 2016 VA examination, the Veteran showed characteristic symptoms more closely approximating the 30 percent level including bilateral pain on manipulation and on accentuated use, and indication of swelling. Accordingly, the Board finds that a rating in excess of 30 percent since July 22, 2016 is not warranted and the appeal is denied. The Board has considered whether the Veteran’s service-connected bilateral pes planus warrants an increased rating under any of the other diagnostic codes pertaining to the foot, including Diagnostic Codes 5277-5284. 38 C.F.R. § 4.71a. The Board finds that Diagnostic Codes 5277 (bilateral weak foot), 5278 (claw foot/pes cavus), 5279 (Morton’s disease), 5280 (hallux valgus), 5281 (hallux rigidus), 5282 (hammer toe), and 5283 (malunion or nonunion of the tarsal or metatarsal bones) are not applicable because the evidence does not show that the Veteran’s bilateral foot disability has been manifested by these disabilities at any time during the appeal period. Consideration has also been given to whether a higher rating may be assigned under Diagnostic Code 5284 (other foot injuries). However, the United States Court of Appeals for Veterans Claims has specifically addressed this question, finding that in cases involving evaluation of diagnosed pes planus, the appropriate Diagnostic Code is 5276 governing the evaluation of pes planus, and that to evaluate service-connected pes planus disabilities under Diagnostic Code 5284 constitutes impermissible rating by analogy. In essence, the Court determined that Diagnostic Code 5284 is not applicable to claims involving the evaluation of pes planus disabilities. Copeland v. McDonald, 27 Vet. App. 333, 338 (2017) (held that where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy). In light of Copeland, the Board finds that Diagnostic Code 5284, governing foot injuries, other, is not applicable in the present case because the Veteran’s service-connected condition, pes planus, is one of the foot conditions specifically listed in 38 C.F.R. § 4.71a, and that to rate his pes planus under Diagnostic Code 5284 would constitute an impermissible rating by analogy. The Board acknowledges that the Veteran’s bilateral feet disability was previously rated under DC 5284 for heel spurs that was ultimately combined with the pes planus disability as explained in the effective date decision above. The Board has also considered whether a compensable rating is warranted under 38 C.F.R. § 4.59 for painful motion. The Board notes that 38 C.F.R. § 4.59 specifically provides that, “[i]t is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for a joint.” The Board acknowledges the Veteran’s reports of painful feet with new shoe purchase at the April 2013 examination. The examination report in April 2013 showed no objective nor subjective evidence of painful motion and noted that the Veteran’s symptoms were relieved with arch supports, which is contemplated by the schedular rating under DC 5276 as noncompensable. A compensable rating is not warranted under 38 C.F.R. § 4.59 prior to July 22, 2016. 3. Entitlement to a compensable rating for left ear hearing loss disability The Veteran contends that his left ear hearing loss disability is worse than contemplated by the initial noncompensable rating assigned. After a thorough review of the evidence, the Board finds that a compensable rating for left ear hearing loss disability is not warranted. Hearing loss is evaluated under Diagnostic Code 6100. The condition is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests. See 38 C.F.R. § 4.85. Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear. These numeric designations are then charted on Table VII to determine the rating to be assigned. Id. See, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule). However, not all patterns of hearing loss are rated in this manner. For example, if the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the Roman numeral designation for that ear is taken from either Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). See also 38 C.F.R. §§ 4.85(c) and 4.86(b) (indicating that alternative methodologies also apply when the examiner certifies that use of the speech discrimination test is not appropriate or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). In the present case, the record reflects that the Veteran underwent a VA audiology evaluation in April 2013. Audiometric testing at that time produced the following results: Hertz 1000 2000 3000 4000 Average Left ear 25 25 40 65 39 Speech discrimination score was 100 percent for the left ear. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to level I acuity for the left ear; which, in turn, warrants a zero percent (noncompensable) rating under Table VII. On authorized audiological evaluation in July 2016, pure tone thresholds, in decibels, were as follows: Hertz 1000 2000 3000 4000 Average Left ear 20 30 45 65 40 Speech discrimination score was 100 percent for the left ear. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to level I acuity for the left ear; which, in turn, warrants a zero percent (noncompensable) rating under Table VII. In light of the foregoing, it is the Board’s conclusion that the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for left ear hearing loss. As set forth above, the available audiometric reports demonstrate entitlement to nothing more than a noncompensable rating. Accordingly, the appeal for an initial compensable rating for left ear hearing loss disability is denied. 4. Entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities When a Veteran suffers from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of non-compensable service-connected disabilities. As such, once a compensable evaluation for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). In this regard, the Veteran has been in receipt of a compensable rating for his service-connected low back disability (10 percent disabling) at all times during the pendency of the appeal. See rating decision dated in June 2018. Therefore, the Veteran’s claim for compensation under 38 C.F.R. § 3.324 is moot. Accordingly, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit).   REASONS FOR REMAND 1. Entitlement to service connection for bilateral knee disability is remanded. The Veteran contends that he has a bilateral knee disability and states that he has knee pain. A January 2015 VA treatment record shows the Veteran complained of knee pain and was administered an X-ray that showed degenerative joint disease. The Veteran argues that his knee pain is possibly secondary to his service-connected disabilities such as low back disability and pes planus. The Veteran has not been afforded a VA examination for his bilateral knee condition. VA should provide the Veteran a VA examination for his bilateral knees. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral knee conditions. The examiner must opine: (a.) whether it is at least as likely as not related to an in-service injury, event, or disease. (b.) Secondary service connection – whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated   beyond its natural progression by service-connected disability. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel