Citation Nr: 19115994 Decision Date: 03/07/19 Archive Date: 03/05/19 DOCKET NO. 17-28 029 DATE: March 7, 2019 ORDER An initial disability rating of 30 percent, and no higher, for bilateral plantar fasciitis is granted. An effective date earlier than January 8, 2014 for the grant of service connection for left knee tendonitis/tendonosis is denied. An effective date earlier than January 8, 2014 for the grant of service connection for right knee tendonitis/tendonosis is denied. An effective date earlier than January 8, 2014 for the grant of service connection for bilateral plantar fasciitis is denied. REMANDED The claim of entitlement to service connection for arteriolitis (to include trigeminal neuralgia) is remanded. The claim of entitlement to service connection for an ear disorder is remanded. The claim of entitlement to service connection for loss of sense of taste is remanded. The claim of entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. The claim of entitlement to special monthly compensation (SMC) based on the need of aid and attendance of another person is remanded. The claim of entitlement to SMC based on being housebound is remanded. The claim of entitlement to an initial disability rating greater than 10 percent for left knee tendonitis/tendonosis is remanded. The claim of entitlement to an initial disability rating greater than 10 percent for right knee tendonitis/tendonosis is remanded. FINDINGS OF FACT 1. Since the effective date of service connection, the Veteran’s bilateral plantar fasciitis has resulted in pain on manipulation and use accentuated and possible pronounced or marked pronation. A preponderance of the medical evidence is against findings of extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation. 2. On January 8, 2014, the Veteran submitted a claim for service connection for various disabilities, including bilateral knee and foot disorders and, in a January 2016 rating decision, the RO granted service connection for bilateral knee tendonitis/tendinosis, assigning separate 10 percent disability ratings, and bilateral plantar fasciitis, assigning a 10 percent disability rating, each effective January 8, 2014, the date of receipt of the Veteran’s claim for service connection. The Veteran submitted a timely notice of disagreement as to the effective date assigned in this decision. 3. No formal or informal claim for service connection for bilateral knee/foot disorders was filed prior to January 8, 2014. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 30 percent, and no higher, for bilateral plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.71a, Diagnostic Code (DC) 5276. 2. The criteria for an effective date prior to January 8, 2014, for the award of service connection for left knee tendonitis/tendonosis have not been met. 38 U.S.C. §§ 5101, 5110, 5111; 38 C.F.R. §§ 3.151, 3.155, 3.400. 3. The criteria for an effective date prior to January 8, 2014, for the award of service connection for right knee tendonitis/tendonosis have not been met. 38 U.S.C. §§ 5101, 5110, 5111; 38 C.F.R. §§ 3.151, 3.155, 3.400. 4. The criteria for an effective date prior to January 8, 2014, for the award of service connection for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 5101, 5110, 5111; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 to June 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2015, January 2016, and March 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This case was previously before the Board in October 2017. Significantly, the Board, in part, granted service connection for tongue/throat cancer, metastatic lymphandenopathy, and lumbar osteoarthritis and remanded claims of entitlement to service connection for a headache disorder and bipolar disorder. Thereafter, the RO effectuated the Board’s grant of service connection for a lumbar spine disorder and, in doing so, also granted service connection for radiculopathy of the bilateral lower extremities associated with the Veteran’s lumbar spine disorder. The RO has not yet effectuated the Board’s grant of service connection for tongue/throat cancer and/or metastatic lymphandenopathy. Also, in August 2018 correspondence, the Veteran withdrew his appeal concerning the issues of entitlement to service connection for a headache disorder and bipolar disorder. 1. An initial disability rating greater than 10 percent for bilateral plantar fasciitis While the Veteran’s service treatment records are negative for foot problems, his personnel records show that he parachuted during his military service and both a private physician and a VA physician have related the Veteran’s current plantar fasciitis to his in-service parachute jumps. The Veteran’s bilateral plantar fasciitis is currently rated as 10 percent disabling by analogy to 38 C.F.R. § 4.71a, DC 5276 (flatfoot, acquired). Under DC 5276, mild disability with symptoms relieved by built-up shoe or arch support will result in a noncompensable rating. A 10 percent evaluation requires evidence of moderate disability 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. A 30 percent evaluation requires severe disability with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, if it is bilateral. A 50 percent evaluation requires pronounced disability with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances, if it is bilateral. Id. Also relevant in this decision is 38 C.F.R. § 4.71a, DC 5284, foot injuries. Under DC 5284, a 10 percent rating contemplates moderate impairment, a 20 percent contemplates moderately severe impairment, and a 30 percent rating contemplates severe impairment. With actual loss of the use of the foot, a 40 percent rating is applicable. Evidence relevant to the level of severity of the Veteran’s bilateral plantar fasciitis includes a May 2015 VA disability benefits questionnaire (DBQ) prepared by Dr. C.N.B. as well as a January 2016 VA foot examination report. In the May 2015 VA DBQ, Dr. C.N.B. noted that the Veteran had diagnoses of bilateral flat foot (pes planus), bilateral metatarsalgia, foot injury (history of right foot fracture), and bilateral plantar fasciitis. The Veteran reported experiencing pain and reported that flare-ups impacted the function of his feet. Dr. C.N.B. noted pain on use of the feet as well as manipulation of the feet. Dr. C.N.B. also noted extreme tenderness of the plantar surfaces of the feet as well as decreased longitudinal arch height of one of both feet on weight-bearing. There was also objective evidence of marked deformity and marked pronation of both feet. There was no alteration of the weight-bearing line and no “inward” bowing of the Achilles tendon. There was no marked inward displacement or severe spasm of the Achilles tendon. There was no evidence of Morton’s neuroma but there was metatarsalgia. There was also hallux valgus but the Veteran had not undergone surgery for his hallux valgus. The Veteran had not had foot surgery. Dr. C.N.B. noted that the Veteran’s foot disabilities resulted in excess fatigability, incoordination as well as impaired ability to execute skilled movements smoothly, pain on movement, pain on weight-bearing, pain on non weight-bearing, swelling, instability of station, interference with sitting, interference with standing. Dr. C.N.B. wrote that there was pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups of when the foot was used repeatedly over a period of time or otherwise. There was also functional loss during flare-ups or when the foot was used repeatedly over a period of time. The Veteran used a walker to aid with ambulation. Diagnostic testing revealed degenerative or traumatic arthritis. During the January 2016 VA examination, the VA examiner continued a diagnosis of bilateral plantar fasciitis noting that this condition was first diagnosed by a VA physician in January 2013. The Veteran reported experiencing bilateral foot pain and indicated that flare-ups impacted the function of his feet, specifically daily intermittent pain with prolonged standing and walking, lasting several hours. The Veteran also reported functional loss or functional impairment of the foot, specifically pain with motion. The Veteran reported experiencing pain on use of the feet which is accentuated on use. There was also pain on manipulation of the feet which was accentuated on manipulation. There was no swelling on use or characteristic callouses. The Veteran used orthotics, bilaterally, with some relief. There was no extreme tenderness of plantar surfaces on one or both feet and no decreased longitudinal arch height of one or both feet on weight-bearing. There was also no objective evidence of marked deformity or marked pronation of one or both feet. There was no alteration of the weight-bearing line and no “inward” bowing of the Achilles tendon. There was also no marked inward displacement or severe spasm of the Achilles tendon. There was evidence of pain of both feet which contributed to functional loss, specifically pain on movement, disturbance of locomotion, and interference with standing. There was no evidence of pain, weakness, fatigability, incoordination, or any other functional loss that significantly limited functional ability during flare-ups. The Veteran regularly used a brace to aid in locomotion. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Diagnostic testing was negative for degenerative or traumatic arthritis. The examiner noted that the Veteran’s plantar fasciitis impacted his ability to perform occupational tasks due to his physical limitations with prolonged standing and walking. Also of record are VA treatment records dated through October 2018 which show complaints of bilateral foot pain. Upon review of the above evidence and in affording the Veteran the benefit of the doubt, an initial 30 percent disability rating for bilateral plantar fasciitis is granted from the effective date of service connection. As above, a 30 percent evaluation requires severe disability with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, if it is bilateral. Significantly, the May 2015 DBQ shows marked deformity (pronation, abduction, etc.) and pain on manipulation and use accentuated. Also, the January 2016 VA examination shows pain on manipulation and use accentuated. While both of these reports are negative for indications of swelling and/or characteristic callosities, the Board has given the Veteran the benefit of the doubt in assigning a higher rating as the Veteran has been found to have at least one and possibly two out of the four characteristics supporting a 30 percent disability rating. Regarding the possibility of an even higher rating for the Veteran’s bilateral plantar fasciitis, while DC 5276 does provide for a 50 percent rating for bilateral pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances; the preponderance of the evidence does not show this level of severity of the Veteran’s bilateral plantar fasciitis. While the May 2015 DBQ noted “marked pronation and extreme tenderness of plantar surfaces of the feet,” it is negative for marked inward displacement and severe spasm of the tendo Achilles on manipulation. Significantly, the January 2016 VA examination report shows that there was no marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo Achilles on manipulation. While the May 2015 DBQ shows extreme tenderness of plantar surfaces of the feet which would support a 50 percent rating under DC 5276, the Board will afford more weight to the findings of the January 2016 VA examination report which is negative for extreme tenderness of plantar surfaces of the feet as this examination report is more recent and more thorough than the May 2015 DBQ. As such, a higher evaluation is not warranted under DC 5276. Further, the maximum schedular ratings under the other DCs pertaining to the foot are less than the current 30 percent assigned. In this case, while there is no specific diagnostic code for plantar fasciitis, DC 5276 involves the most similar anatomy and symptoms as identified by the medical professionals providing the examinations during the appeal. A higher rating is potentially available under, DC 5284, based on loss of use; which is defined as a situation where the Veteran would be equally well served by amputation at the site of election with prosthesis in place. 38 C.F.R. § 4.63. All the medical professionals who have expressed an opinion in this case have concluded that the Veteran does not have loss of use and would not be equally well served by amputation. This conclusion is supported by the fact that treatment providers do not appear to have recommended amputation or discussed that option with the Veteran. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for bilateral plantar fasciitis is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned 30 percent rating, and no higher. In this regard, the Veteran has complained of intermittent pain in his feet on numerous occasions. However, the effect of the pain is contemplated in the currently assigned 30 percent disability evaluation under DC 5276. Indeed, DC 5276 specifically contemplates pain. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. 2. An effective date earlier than January 8, 2014 for the grant of service connection for left knee tendonitis/tendinosis, right knee tendonitis/tendinosis, and bilateral plantar fasciitis Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, 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; 38 C.F.R. § 3.400. An application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary (i.e., VA Form 21-526). 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). However, prior to March 24, 2015, a claim could be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p) (2014). But see 38 C.F.R. § 3.1(p) (2015) (now providing that a “claim” must be submitted on an application form prescribed by the Secretary); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). In the instant case, VA received an initial informal claim of entitlement to service connection for bilateral knee and foot disorders on January 8, 2014, followed by a formal claim using the appropriate VA form in March 2014. There is no formal or informal claim for service connection for such disabilities prior to that date. A review of the claims file shows that the Veteran was experiencing bilateral knee pain prior to January 8, 2014. While it is clear that the Veteran began experiencing bilateral knee and foot problems prior to the January 8, 2014 effective date, this is insufficient to establish that he is entitled to an earlier effective date under VA’s governing laws and regulations. In this regard, the effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). The Veteran does not contend, and the record does not show a claim for service connection for bilateral knee and/or foot disorders prior to January 8, 2014. Therefore, based on the above-stated facts and regulations, the Board finds that the legally correct date for the award of service connection for bilateral knee and foot disorders is January 8, 2014, the date VA received the Veteran’s original claim of entitlement to service connection for such disabilities. As such, the Veteran is not entitled to an earlier effective date and his claims must be denied. REASONS FOR REMAND 1. The claims of entitlement to service connection for arteriolitis (to include trigeminal neuralgia), an ear disorder, loss of sense of taste, and residuals of a TBI are remanded. As above, in an October 2017 decision the Board, in part, granted service connection for tongue/throat cancer and metastatic lymphandenopathy. However, the RO has not yet effectuated the Board’s grant of service connection for tongue/throat cancer and/or metastatic lymphandenopathy and has not yet assigned disability ratings for these disabilities. A review of the record shows that the Veteran was diagnosed with tongue/throat cancer in January 2014 and has developed several complications secondary to this diagnosis. Significantly, in May and June 2015 statements Dr. C.N.B. wrote that the Veteran’s oral pharyngeal squamous cell carcinoma with secondary brain chemotherapy/radiation damage is equivalent to a TBI, depression/chronic headaches/neuro/nephro/otic (audio) toxicities, peripheral neuropathy and service related orthopedic injuries. In the May 2015 statement Dr. C.N.B. also wrote that the Veteran had severe vertigo which was very likely secondary to his radiation/chemotherapy treatments. The claims file currently shows diagnoses of trigeminal neuralgia, an ear disorder, loss of taste, and TBI. Specifically, VA treatment records show a diagnosis of trigeminal neuralgia (a chronic pain disorder that affects the trigeminal nerve of the face) as early as October 2015. In a May 2015 DBQ pertaining to the ears, the Veteran was diagnosed with Meniere’s syndrome, as well as peripheral vestibular disease. In a May 2015 DBQ pertaining to the sense of taste, the Veteran was diagnosed with hyposmia (reduced ability to detect any odors), ageusia (complete lack of taste), and dry mouth. A May 2015 DBQ pertaining to oral/dental conditions also noted a diagnosis of loss of taste. Also, as above, the May 2015 statement from Dr. C.N.B. wrote that the Veteran’s “oral pharyngeal squamous cell carcinoma with secondary brain chemotherapy/radiation damage is equivalent to a TBI.” Initially, the Board notes that these claims appear to be inextricably intertwined with the Veteran’s service-connected tongue/throat cancer and metastatic lymphandenopathy, which have yet to be rated. Furthermore, the Board notes that the Veteran has not yet been afforded VA examinations with regard to these issues. Given the above, the Board finds that examinations and opinions are necessary to decide these claims. 2. The claims of entitlement to SMC based on the need of aid and attendance of another person/being housebound are remanded. With regard to the SMC issues, the Board notes that SMC at the aid and attendance rate is payable when a Veteran’s service-connected disability or disabilities cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the Veteran to be blind in both eyes, or render him permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). SMC at the housebound rate is also payable when a veteran has a single service-connected disability rated 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i)(1). As above, service connection has been granted for tongue/throat cancer and metastatic lymphandenopathy but disability ratings have not yet been assigned. As an award of SMC is contingent, at least in part, on the disability ratings assigned for a veteran’s service-connected disabilities, the Board finds that the SMC claims are inextricably intertwined with the assignment of disability ratings for the Veteran’s tongue/throat cancer and/or metastatic lymphandenopathy and any future service-connected disability(ies). 3. The claims of entitlement to an initial disability rating greater than 10 percent for left knee tendonitis/tendonosis and entitlement to an initial disability rating greater than 10 percent for right knee tendonitis/tendonosis are remanded. The Veteran was last afforded a VA knee examination in January 2016. Significantly, during this examination, the Veteran reported experiencing flare-ups of the knees but the examiner did not attempt to quantify the effect of the claimed flare-ups in terms of additional loss of motion. Also, while the January 2016 VA examination report shows range of motion findings for the knees, it does not indicate whether the findings were on either active vs. passive motion and/or in weight-bearing vs. nonweight-bearing. The Court of Appeals for Veterans’ Claims (Court) recently clarified the responsibilities of a VA examiner and the Board with regard to describing additional functional loss during flare-ups of musculoskeletal disabilities. The Court explained that case law and VA guidelines anticipate that VA examiners must offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of Veterans. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. The Court went on to note that an examination is inadequate when, even though the Veteran was not experiencing a flare at the time of the examination, it failed to ascertain adequate information, such as frequency, duration, characteristics, severity, and functional loss, regarding the Veteran’s flares by alternative means. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Unfortunately, the January 2016 VA examination does not comply with Sharp. Accordingly, the Veteran must be afforded a new VA examination to correct the deficiencies with regard to Sharp. Also, the Board observes that a new precedential opinion that directly affects this case was issued by the Court. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Unfortunately, the January 2016 VA examination does not comply with Correia. Accordingly, the Veteran must be afforded a new VA examination to correct the deficiencies with regard to Correia. Lastly, there are likely outstanding VA treatment records as the most recent medical records in the claims file are dated in October 2018. Therefore, all outstanding VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from October 2018 to the present. 2. Schedule the Veteran for appropriate VA examination(s) to determine the current nature and etiology of the Veteran’s claimed trigeminal neuralgia, an ear disorder, loss of sense of taste, and residuals of a TBI. The claims file should be made available to and reviewed by the examiner. Initially, the examiner should note whether the Veteran has been diagnosed with trigeminal neuralgia, an ear disorder, loss of sense of taste, and/or residuals of a TBI during the appeal period. If so, the examiner should opine as to whether such disorder(s) are at least as likely as not (50 percent or greater probability) related to the Veteran’s military service and/or a service-connected disability (specifically the Veteran’s service-connected tongue/throat cancer and/or metastatic lymphandenopathy). The examiner is asked to consider the Veteran’s lay statements regarding symptomatology and any other pertinent evidence in the claims file, to include: (1) the May and June 2015 statements wherein Dr. C.N.B. wrote that the Veteran’s oral pharyngeal squamous cell carcinoma with secondary brain chemotherapy/radiation damage is equivalent to a TBI, depression/chronic headaches/neuro/nephro/otic (audio) toxicities, peripheral neuropathy and service related orthopedic injuries; the May 2015 statement wherein Dr. C.N.B. wrote that the Veteran had severe vertigo which was very likely secondary to his radiation/chemotherapy treatments; (3) VA treatment records showing a diagnosis of trigeminal neuralgia (a chronic pain disorder that affects the trigeminal nerve of the face) as early as October 2015; (4) a May 2015 DBQ pertaining to the ears wherein the Veteran was diagnosed with meniere’s syndrome as well as peripheral vestibular disease; (5) a May 2015 DBQ pertaining to the sense of taste wherein the Veteran was diagnosed with hyposmia (reduced ability to detect any odors), ageusia (complete lack of taste), and dry mouth; and (6) a May 2015 DBQ pertaining to oral/dental conditions noting a diagnosis of loss of taste. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for a VA examination for evaluation of his bilateral knee disabilities. The examiner should test the range of motion (using a goniometer) in active motion, passive motion, weight-bearing, and non weight-bearing, for the bilateral knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, (e.g., feasibility of testing the spine in weight-bearing) he or she should clearly explain why that is so. The VA examiner should ask the Veteran for a description of his flare ups, and express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel