Citation Nr: 18159550 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 13-21 440 DATE: December 20, 2018 ORDER Entitlement to an initial 10 percent rating, but no higher, for right foot plantar calcaneal spur is granted. Entitlement to an initial 30 percent rating, but no higher, for bilateral pes planus from December 30, 2009 through October 18, 2018, is granted. Entitlement to an initial rating in excess of 30 percent for bilateral pes planus from October 19, 2018, is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. FINDINGS OF FACT 1. For the entire period on appeal, right foot plantar calcaneal spur has more nearly approximated no more than moderate disability. 2. For the entire period on appeal, bilateral pes planus has more nearly approximated objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Bilateral pes planus has not been manifested by marked pronation, marked inward displacement or severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 3. Throughout the period on appeal, audiometric examinations show no greater than a level I hearing loss for the right ear and no greater than a level I hearing loss for the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for right foot plantar calcaneal spur have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5015-5284 (2017). 2. The criteria for an initial 30 percent rating, but no higher, for bilateral pes planus from December 30, 2009 through October 18, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2017). 3. The criteria for an initial rating in excess of 30 percent for bilateral pes planus from October 19, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276. 4. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Pes Planus and Right Calcaneal Spur The Veteran claims entitlement to higher initial ratings for bilateral pes planus and a right foot heel spur. The Veteran’s bilateral pes planus has been rated as 10 percent disabling for the period prior to October 19, 2018 and 30 percent disabling thereafter. The right foot heel spur has been rated noncompensable. The Veteran underwent a VA examination in August 2010. The Veteran reported intermittent flare-ups of both feet at least three to four times per day, lasting seven to eight minutes involving the entire plantar right foot (but mainly the heel) and the left medial arch. There was no radiation but sharp pain of zero to eight out of 10 with standing and walking. Aggravating factors included pressure on feet, such as walking, standing and running. Alleviating factors included soaking in Epsom salts, inserts and heel cups. Weakness was noted in the left foot only, with standing and walking, but there was no stiffness, swelling, heat, redness, fatiguability, lack of endurance or other symptoms. Functional limitations on standing were three to four hours. Functional limitation on walking was about two miles. The effect on his occupation as a laboratory technician at a health department was that there was pain on the job. The effect on activities of daily living was noted to be mild. Physical examination revealed a normal gait and normal strength. There was slight increased wear on bilateral plantar posterior lateral heels of shoes. There was mild to moderate bilateral plantar medial great toe callosities and callosities of the metatarsals and heels. Flatfeet were not observed in non-weight-bearing but there was some flattening with weight bearing. In non-weight-bearing, Achilles alignment was normal but there was about five degrees of varus bilaterally in weight bearing, which was correctable with active inversion. There was also mild midfoot pronation bilaterally which was correctable with active inversion. There was no pain on manipulation of flatfeet. The examiner noted moderate guarding of both feet. An April 2012 private treatment record shows that on examination of the feet, there was a pronated foot structure with weight bearing and a normal arch off weight bearing. A May 2013 private treatment record shows that the Veteran complained of painful heels. Examination revealed that the Veteran had a flexible pes planus foot type and that there was pain to palpation of the heels. An October 2016 private treatment record shows that the Veteran complained of pain in his heels and when walking barefoot at home. Physical examination revealed pain on palpation of the heel, severe pronation with weight bearing and collapsed arch with weight bearing. At a November 2016 Board hearing, the Veteran reported that, regarding pes planus, he experiences pain in both feet, that he walks on the outside of his feet and that he wears orthotics. As to the right heel spur, he described pain in the heel area that has worsened over time. He also reported wearing a boot at night. The Veteran underwent another VA examination in October 2018. The Veteran described localized pain to the plantar aspect of the bilateral feet radiating from the heel to toes. He received cortisone injections in the past and has been provided with orthotics. He works as a laboratory technician requiring long hours of standing. The Veteran denied flare-ups impacting the function of the foot but described functional loss including bilateral foot pain with prolonged weight-bearing activities such as standing and walking. There was pain on use of both feet, which was accentuated on use bilaterally; and pain on manipulation of feet bilaterally, which was accentuated on manipulation. There was no swelling or characteristic callouses. There was extreme tenderness on the plantar surfaces of both feet. Although there was decreased longitudinal arch height of both feet on weight bearing, there was no objective evidence of marked deformity of the feet or marked pronation. The weight-bearing line did not fall over or medial to the great toe, there was no inward bowing of the Achilles tendon and the Veteran did not have marked inward displacement or severe spasms of the Achilles tendon. There was pain on physical examination of both feet. Functional loss included pain in weight bearing, disturbance of locomotion and interference with standing, including during flare-ups when the foot was used repeatedly over a period of time but the examiner could not describe it because the examination did not take place during a flare-up. The examiner noted that August 2010 X-rays revealed a plantar calcaneal spur in the right foot only. A November 2018 private treatment record shows that on examination, flexible pes planus was noted and there was pain to palpation of the heels. Another November 2018 private treatment record indicates that the Veteran’s pes planus is chronic and can flare-up resulting in severe heel and arch pain with an inability to walk or stand for periods of time. It was noted that the Veteran had been treated in the past with orthotics and good supportive shoes but can still have flare-ups of severe pain. As to pes planus, based on the above, the Board finds that for the entire period on appeal, the symptoms of bilateral pes planus more nearly approximate the criteria for a 30 percent rating. The Veteran’s bilateral pes planus is rated under Diagnostic Code 5276, applicable to acquired flatfoot. Under Diagnostic Code 5276, a 10 percent rating is assigned for moderate pes planus with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. 38 C.F.R. § 4.71a. A 30 percent rating bilaterally is assigned for severe pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use and characteristic callosities. Id. A 50 percent rating bilaterally is assigned for pronounced pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Id. After a review of the evidence, the Board concludes that given the application of the benefit of the doubt rule, a 30 percent rating, but no higher, is warranted for the entire period on appeal, as such rating affords a better approximation of the overall disability picture presented. Both the medical evidence and the Veteran’s statements reflect that the predominant symptoms appear to be pronation of both feet, pain on manipulation which increases with use, and, with reasonable doubt resolved in favor of the Veteran, indication of swelling on use and characteristic callosities. In this regard, VA and private records reveal pronation and although VA examiners did not observe pain on manipulation, private doctors did. Although no swelling was noted upon examination, the evidence shows that the Veteran has received cortisone injections in the past which are used to reduce inflammation. In addition, the October 2018 examiner did not find characteristic callouses but the August 2010 examiner noted mild to moderate bilateral plantar medial great toe callosities and callosities of the metatarsals and heels although he did not indicate whether these were characteristic of pes planus. Accordingly, with reasonable doubt resolved in favor of the Veteran, the Board finds that a 30 percent rating is warranted for the entire period on appeal. 38 C.F.R. § 4.71a. As such, for the period from December 30, 2009 through October 18, 2018, an initial 30 percent rating, but no higher, is granted. For the period from October 19, 2018, entitlement to an initial rating in excess of 30 percent is denied. A rating in excess of 30 percent is not warranted. Although the November 2018 examiner noted extreme tenderness on the plantar surfaces of both feet and the November 2018 private doctor noted that flare-ups can result in an inability to walk or stand for periods of time despite using supportive shoes and orthotics, the evidence shows that the Veteran’s bilateral pes planus did not result in marked pronation, marked inward displacement or severe spasms of the Achilles tendon on manipulation not improved by orthopedic shoes or appliances. Nor does the Veteran so allege. 38 C.F.R. § 4.71a. Accordingly, an initial rating in excess of 30 for bilateral percent pes planus is denied. As to the right heel spur, the Board finds that for the entire period on appeal, symptoms more nearly approximate the criteria for a 10 percent rating. Initially, the Board notes that the right foot plantar calcaneal spur has been rated under Diagnostic Code 5015, applicable to benign, new growths of bone. 38 C.F.R. § 4.71a. Under Diagnostic Code 5015, benign new growths of the bones are to be rated on limitation of motion of the affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5015. Degenerative arthritis is rated under Diagnostic Code 5003. Under Diagnostic Code 5003, a 10 percent rating is assigned for each major joint or group of minor joints affected by limitation of motion, when the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 20 percent rating is available when, in the absence of limitation of motion, there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. That rating is not to be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board further observes that the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, because the affected body part at issue, the right heel, does not involve a joint that includes range of motion and does not affect a group of major or minor joints, the Board finds that the Veteran’s right foot plantar calcaneal spur should be rated under Diagnostic Codes 5015-5284. Diagnostic Code 5284 applies to other foot injuries and hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. §§ 4.27, 4.71a (2017). Under Diagnostic Code 5284, a moderate foot injury warrants a 10 percent disability evaluation. A moderately severe foot injury warrants a 20 percent disability evaluation and a severe foot injury is assigned a 30 percent disability evaluation. A 40 percent disability evaluation is assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2017). The words “moderate,” “moderately severe,” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. 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 (2017). The use of terminology such as “severe” by VA examiners and others, although an element of 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 (2017). After thorough review of the evidence of record, the Board concludes that an initial 10 percent rating, but no higher, is warranted for the Veteran’s right heel spur. Both the medical evidence and the Veteran’s statements reflect that the predominant symptoms include right heel pain, at times severe, that interferes with prolonged standing and walking and pain to palpation of the right heel. Given the clear X-ray evidence of a right foot heel spur, separate and distinct from bilateral pes planus, and the fact that the Veteran has described his foot pain flare-ups as mainly involving the right heel, see August 2010 VA examination, the Board finds that there is a sufficient basis to assign a compensable rating based on distinct symptoms more nearly approximating moderate disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5015-5284. The right heel spur does not warrant a rating in excess of 10 percent because it does not result in symptoms not already contemplated in the rating for pes planus that rise to the level of a moderately-severe other foot injury. See 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Codes 5015-5284, 5276. Indeed, many symptoms attributable to the right heel spur have also been observed with the Veteran’s pes planus and contemplated in the rating assigned to pes planus. Although the October 2018 examiner noted that prior X-rays had confirmed right foot calcaneal spur, he did not otherwise observe symptoms uniquely pertaining to the right heel spur representing more than moderate severity. Moreover, the August 2010 examiner’s overall assessment was that the effect on his occupation as a laboratory technician was that there was pain on the job and the effect on activities of daily living was mild. Accordingly, with reasonable doubt resolved in favor of the Veteran, an initial 10 percent rating, but no higher, is warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5015-5284. As to both pes planus and right heel spur, the Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca v. Brown, 8 Vet. App. 202 (1995), but finds that increased ratings are not warranted during the period on appeal on the basis of functional loss due to pain in this case, as those symptoms are already contemplated by the assigned ratings. Although the Veteran reported flare-ups involving pain in both feet, the basis for the current ratings includes the pain and impairment experienced during those flare-ups. The Board has considered entitlement to a higher evaluation under other rating codes, but finds that analogous ratings either are not applicable to the Veteran’s case or do not offer a higher disability rating. Pes planus is specifically listed in the rating criteria and there is no evidence of any symptomatology relating to the right heel spur that could warrant a higher rating under any other diagnostic code. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). Hearing Loss The Veteran also claims entitlement to an initial compensable rating for bilateral hearing loss. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned. 38 C.F.R. § 4.86. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In August 2010, the Veteran was provided a VA examination. The results of the audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 40 35 LEFT 5 20 30 40 40 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 100 percent in the right ear and 100 percent in the left ear. The average of the puretones between 1000-4000 Hertz was 27.5 for the right ear and 32.5 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of I for the right ear and I for the left. Such a degree of hearing loss warrants a noncompensable rating under Table VII. At the November 2016 hearing, the Veteran reported that his family told him that he started playing the TV loudly. He also reported that he leans in when he is listening to someone. In October 2018, the Veteran underwent another VA examination. The Veteran reported that he has to look at people in order to understand them and his family has complained of him playing the TV or radio too loudly. The results of the audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 40 40 LEFT 15 25 30 40 50 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent in the right ear and 96 percent in the left ear. The average of the puretones between 1000-4000 Hertz was 30 for the right ear and 36 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of I for the right ear and I for the left. Such a degree of hearing loss warrants a noncompensable rating under Table VII. The Veteran has also submitted private audiograms dated from October 2016 and November 2017 which do not indicate that the Maryland CNC word list was employed. Because these audiograms took place at least one year prior to the most recent VA examination, the Board finds that the severity of the Veteran’s current hearing loss has been adequately captured and the Board does not find that a remand to seek additional clarification of the private examinations is warranted. Based on the above, the Board finds that the claim must be denied. The Board has considered the Veteran’s complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. The Veteran’s reports of difficulty understanding speech and being told that he has started turning up the TV and radio is acknowledged; however, this is reflective of the type of functional difficulty that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.). Accordingly, the VA examinations of record are sufficiently in compliance with the provisions of VA regulations, and are afforded great probative value in determining the Veteran’s level of hearing impairment. The most probative medical evidence as to the nature of the appellant’s hearing loss are the VA audiometric findings, and those discussed above reveal that the Veteran’s hearing loss does not warrant entitlement to a compensable rating. REASONS FOR REMAND As to the knees, in October 2018, the Board remanded the appeal for VA knee examinations. The Board stated that the examiner should fully describe and distinguish any impairment arising from pain on active motion, passive motion, in weight-bearing, and in nonweight-bearing. The Veteran underwent VA knee examinations in October 2018. Significantly, although the examiner noted that there was evidence of pain in passive range of motion and in non-weight-bearing, no further description was offered. As such, the Board finds that the AOJ should contact the October 2018 VA knee examiner to provide range of motion estimates for the knees in passive range of motion and in non-weight bearing. If the examiner cannot provide the missing information, an additional examination should be scheduled. The matters are REMANDED for the following action: 1. Contact the October 2018 VA knee examiner to obtain estimates of left and right knee range of motion in passive motion and in non-weight bearing. If the examiner cannot provide the missing information, an additional VA knee examination should be scheduled which is compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). 2. If any benefit requested on appeal is not granted to the Veteran’s satisfaction, the appellant and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel