Citation Nr: 1807877 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 15-08 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to an initial rating in excess of 10 percent for left foot pes planus and plantar fasciitis. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1980 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for a right foot disability, and granted service connection for left foot pes planus and plantar fasciitis at a 10 percent disability evaluation. In September 2017, the Veteran appeared and testified at a video hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his right foot pes planus and plantar fasciitis had its onset in service. 2. During the period on appeal, the Veteran's left foot pes planus and plantar fasciitis has resulted in symptoms such as pain on the manipulation of the foot, but has not manifested in marked deformity (such as pronation or abduction), indication of swelling on use, or characteristic callosities. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a right foot pes planus and plantar fasciitis have been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for an initial rating in excess of 10 percent for left foot pes planus and plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.71a, Diagnostic Codes (DCs) 5020, 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Initially, the Board finds that, with respect to the claims discussed herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Additionally, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("[T]he Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, the Board notes that during the September 2017 Board hearing, the Veteran was asked if his symptoms have changed since the July 2013 VA examination. The Veteran indicated that his symptoms have been about the same since his last VA examination. Accordingly, as there does not appear to be a change in the Veteran's symptoms, the Board finds that a new examination is not warranted. See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). II. Analysis a. Service Connection for Right Foot Disability Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran contends that he is entitled to service connection for his right foot disability due to working conditions he experienced while in active service. Specifically, the Veteran contends that the flight deck boots he wore while in service caused his current foot disabilities. As discussed below, the Veteran is already service connected for a left foot disability. The medical evidence of record establishes that the Veteran has a right foot disability. A VA examination conducted in July 2013 of both of the Veteran's feet indicated that the Veteran has a diagnosis of bilateral plantar fasciitis with pes planus. A review of the Veteran's service medical treatment records reflect that at his October 1984 separation examination, the Veteran's feet were noted to be in normal condition. Additionally, service medical treatment records primarily reflected reports of pain of the left foot. However, a note from February 1982 indicated that the Veteran reported chronic heel pain, but did not appear to specify a foot. Furthermore, during the September 2017 Board hearing, the Veteran indicated that although medical records from service primarily indicated that the Veteran reported pain in his left foot, both feet were presenting with symptoms, but the left foot presented with more severe symptoms. The Veteran further indicated that all treatment post-service were for both of this feet. The Veteran was afforded a VA examination for bilateral pes planus in July 2013. However, upon review of the examination request report, the VA only instructed the physician to provide an opinion as to whether the Veteran's "current left foot condition (if diagnosed) [was] incurred in, caused by, or a continuation of the treatment for chronic left heel pain" (emphasis added) shown in service. The examiner indicated that the Veteran was diagnosed with bilateral plantar fasciitis with pes planus in 1980. Further, on examination, both feet appeared to exhibit a similar severity of symptoms. The examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran "developed pes planus while in service that has le[d] to the development of other foot conditions outside of service." While the examiner only provided an opinion regarding the Veteran's left foot disability, considering that the Veteran's current right foot disability is similar to that of the left, and the February 1982 note in the Veteran's service treatment records indicating general reports of "chronic heel pain," the Board finds that the examiner's positive nexus opinion of the Veteran's left foot disability equally applies to the Veteran's right foot disability. The Board finds that the February 1982 note in the Veteran's service treatment record, the July 2013 VA examiner indicating a 1980 diagnosis of bilateral plantar fasciitis with pes planus, and providing a positive nexus opinion, along with the Veteran's lay statements, at the least, place the evidence in equipoise as to whether the Veteran's current right foot disability is etiologically related to service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence of record sufficiently satisfies the criteria to establish service connection for a right foot disability. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). b. Increased Rating for Left Foot Disability Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It 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 the joint. 38 C.F.R. § 4.59 (2017). 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 (2017). However, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Here, the Veteran's left foot pes planus with plantar fasciitis has been assigned a 10 percent rating under DC 5020-5276. The Veteran claims that he is entitled to an increased rating, as he experiences severe symptoms of his left foot disability. 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 (2017). Under DC 5020, synovitis is rated as degenerative arthritis under DC 5003, which in turn, is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is assignable for each major joint or group of minor joints affected by limitation of motion, a 10 percent rating will be assigned where there is X-ray evidence of involvement of two or more major joints groups. 38 C.F.R. § 4.71a, DC 5003 (2017). Under DC 5276, bilateral or unilateral moderate flatfoot with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5276 (2017). Severe flatfoot, with objective evidence of marked deformity, such as pronation, abduction, or other deformity, pain on manipulation and use accentuated, indication of swelling on use, with characteristic callosities, is rated 20 percent for unilateral disability, and 30 percent for bilateral disability. 38 C.F.R. § 4.71a, DC 5276. Pronounced flatfoot, 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 for unilateral disability, and is rated 50 percent for bilateral disability. 38 C.F.R. § 4.71a, DC 5276. Under DC 5280, a maximum 10 percent rating is assigned for unilateral hallux valgus when the condition is post-operative with resection of metatarsal head or when the condition is severe, if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, DC 5280 (2017). On July 2013 VA examination for hallux valgus of the left foot, the Veteran reported that his foot pain began in 1980. The Veteran also reported pain with walking or standing for extended periods of time. On examination, the examiner diagnosed the Veteran with hallux valgus. The examiner noted that the Veteran had mild or moderate symptoms due to a hallux valgus condition; however, the Veteran had not undergone surgery for this condition. The examiner noted that there was no evidence of Morton's neuroma, metatarsalgia, hammer toe, hallux rigidus, or acquired claw foot (pes cavus). Additionally, the examiner noted that there was no evidence of malunion or nonunion of the tarsal or metatarsal bones. It was further noted that the Veteran had moderate plantar fasciitis. On July 2013 VA examination for bilateral pes planus, the Veteran reported that the condition began with pain on the bottom of the feet and has been the same since. On examination, the examiner noted pain on manipulation of the feet with pain being accentuated on manipulated. No swelling or calluses caused by the flatfoot condition were noted. The Veteran's symptoms were not relieved by arch support. There was no extreme tenderness of plantar surface of one or both feet, and no decreased longitudinal arch height on weight-bearing. The examiner also noted that there was no objective evidence of marked deformity of the foot, and there was no marked pronation of the foot. It was noted that the weight-bearing lines did not fall over or medial to the great toe, and no lower extremity deformity other than pes planus, causing alteration of the weigh bearing line was noted. The Veteran did not have "inward" bowing of the Achilles' tendon, and there was no marked inward displacement or severe spasm of the Achilles' tendon (rigid hindfoot) on manipulation. The Veteran did not require the use of any assistive devices (other than corrective shoes or orthotic inserts) as normal mode of locomotion. Imaging studies were also conducted in relation to the July 2013 examination. The examiner noted that degenerative or traumatic arthritis was not documented. However, the images did show pes planus. The examiner noted that the Veteran's flatfoot condition impacted the Veteran's ability to work in that it limited how much he could sit, stand, or walk. Additionally, the examiner noted daily flare-ups of the Veteran's symptoms, which resulted in pain. In light of the foregoing, the Board finds that the Veteran's left foot disability does not warrant an initial rating in excess of 10 percent. A rating above 10 percent would require at least objective evidence of marked deformity, and the Veteran has not been shown to have such a level of pronation, abduction, or other deformity at any time during the appeal period. Additionally, there is no indication of swelling on use, or characteristic callosities. At most, the Veteran's symptoms are exhibited by pain on manipulation of the left foot during the entire period of appeal. 38 C.F.R. § 4.71a, DC 5276. Additionally, the Board has considered whether an evaluation in excess of 10 percent is warranted on the basis of functional loss due to pain. However, the Veteran's subjective complains of pain are contemplated in the criteria of DC 5276. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); 38 C.F.R. §§ 4.40, 4.45. Accordingly, the Board concludes that the Veteran is most appropriately evaluated at the 10 percent rating under DC 5276. ORDER Service connection for a right foot pes planus and plantar fasciitis is granted. Entitlement to an initial rating in excess of 10 percent for left foot pes planus with plantar fasciitis is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs