Citation Nr: 19123781 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 17-47 801 DATE: March 29, 2019 ORDER Entitlement to an initial disability rating in excess of 30 percent for bilateral pes planus with plantar fasciitis is denied. Entitlement to an earlier effective date than March 18, 2015, for the grant of service connection for bilateral pes planus is denied. Restoration of the 30 percent rating for allergic rhinitis effective June 1, 2016, is granted. FINDINGS OF FACT 1. The Veteran’s bilateral foot disability was not manifested by symptomatology more nearly approximating pronounced bilateral pes planus. 2. There is no communication prior to the March 18, 2015, claim for service connection for bilateral pes planus that may be construed as a formal or informal claim of entitlement to service connection for this condition; entitlement arose on June 26, 2015. 3. The March 2016 rating decision implementing the rating reduction from 30 percent to 10 percent for service-connected allergic rhinitis does not reflect an actual change in the disability or an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for bilateral pes planus with plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5276 (2018). 2. The criteria for an effective date earlier than March 18, 2015, for the grant of service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.400 (2018). 3. The reduction of the 30 percent rating assigned for the service-connected allergic rhinitis was not proper and is void ab initio. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.97, Diagnostic Code 6522 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1994 to December 1999. 1. Entitlement to an initial disability rating in excess of 30 percent for bilateral pes planus with plantar fasciitis The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since the claim was filed when the disability may have been more severe than at other times during the course of the appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, the Court has held that an adequate VA examination for the joints must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 The Veteran’s bilateral foot disability has been rated under Diagnostic Code 5276, for flat foot, acquired. 38 C.F.R. § 4.71(a). He is rated 30 percent for severe bilateral flat foot. Diagnostic Code 5276 provides that 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 flat foot and 30 percent disabling for bilateral flat foot. Pronounced flat foot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopaedic shoes or appliances is rated 30 percent disabling for unilateral flat foot and 50 percent disabling for bilateral flat foot. Turning to the medical evidence, an October 2002 VA examination of the Veteran’s feet indicated normal gait, normal muscle strength, reduced tendon reflexes, plantar flexion unrestricted, and no crepitus bilaterally. The report indicates bilateral inversion was 30 degrees and bilateral eversion was approximately 10 to 15 degrees. Range of motion for the first metatarsophalangeal joint was 115 to 120 degrees, and total range of motion was 80 degrees. The report indicates that the second through first metatarsophalangeal joints bilaterally and second through fifth were 80 degrees. The report indicates passive range of motion bilaterally. The report indicates there was no evidence of any hyperkeratoic lesions, no orthodigital deformities, and no nail or skin problems. In June 2015, the Veteran underwent another VA examination for his feet. The examination report reflects his reports of pain in both feet. He reported flare ups as well, which he described as pain in both heels, which is worse when he starts walking in the morning and when he stands up after a period of rest/sitting. The report indicates that he did not report functional loss or functional impairment. The examiner noted that the Veteran has pain on use of both feet, and the pain for both feet is accentuated on use. The examiner indicated that the Veteran does not have pain on manipulation of the feet, and there was no indication of swelling on use. There were no characteristic callouses. The report indicates that orthotics were tried, but the feet remain symptomatic. The Veteran had decreased longitudinal arch height of one or both feet on weight-bearing. There was no objective evidence of marked deformity of one or both feet. There was marked pronation of both feet, and the report indicates that the condition is improved by orthopedic shoes or appliances. The report indicates that the weight-bearing line does not fall over or medial to the great toe. The report indicates that there was no lower extremity deformity other than pes planus, causing alteration of the weight-bearing line. There was no inward bowing of the Achilles tendon (i.e., hindfoot valgus, with lateral deviation of the heel) of one or both feet. There was no marked inward displacement or severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of one or both feet. There was no Morton’s neuroma. There was no metatarsalgia. The examiner noted that the Veteran has foot injuries or other foot conditions not already described. The examiner explained that the Veteran has bilateral plantar fasciitis with mild tenderness to palpation over bilateral medial tubercle of calcaneus. The examiner indicated that the condition is of moderate severity. The examiner indicated that the foot condition does not chronically compromise weight bearing. The examiner indicated that the foot condition requires arch supports, custom orthotic inserts or shoe modifications. There was pain on exam for both feet, but the report indicates that it does not contribute to functional loss. The examiner explained that the Veteran has pain with the first few steps in the morning and when getting up from a seated position after a period of rest/inactivity. For both feet, the report indicates that there is pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time. In describing the functional loss, the examiner indicated that this finding is reliant on the Veteran’s description of activities that are affected over time. The report indicates that there is no objective evidence in medical literature to apply to such circumstances to predict limitations. The examiner indicated that he would therefore have to rely on mere speculation. The report indicates that there are no associated scars and no use of assistive device. The report indicates that there is no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. As to lay statements, the Veteran stated in the July 2015 notice of disagreement that he believes a higher rating of 50 percent is warranted because there are pronounced symptoms of flat feet with bilateral involvement. In the September 2017 Form 9, he stated that he believes an increased rating is warranted due to the bilateral foot pain still even with the use of orthopedic appliances. Having reviewed the evidence of record, medical and lay, the Board finds that a higher rating is not warranted. The Veteran is rated 30 percent for bilateral severe flat foot. He asserts that a 50 percent rating is warranted for bilateral foot pain. However, his current 30 percent rating applies to and therefore compensates for bilateral foot symptoms, to include pain. The rating explicitly lists pain. See 38 C.F.R. § 4.71(a), Diagnostic Code 5276. A higher rating requires bilateral pronounced flat foot. In the Veteran’s case, the medical evidence does not support that he has the symptoms required for a 50 percent rating for bilateral pronounced flat foot. The June 2015 VA examination indicates that the Veteran has marked pronation of the feet. However, the criteria for a 50 percent rating for pronounced flat feet are joined by the word “and.” Therefore, the criteria listed are conjunctive. In other words, all symptoms listed must be present to qualify for the rating. Additionally, those symptoms must not be improved by the use of orthotics. While the June 2015 examination report indicates marked pronation, it also indicates that there is no evidence of severe tenderness of plantar surfaces, marked inward displacement or severe spasms of the tendo Achielles of the feet. While the June 2015 VA examination indicated tenderness of the medial tubercle of calcaneus, it was indicated as mild, not severe. Additionally, the October 2002 VA examination indicated normal findings for the feet. Moreover, while the June 2015 examiner noted marked pronation, the examiner also indicated that it is improved with the use of orthotics. As noted, a 50 percent rating under Diagnostic Code 5276 requires that the symptoms of pronounced flat foot are not improved by the use of orthotics. The Board acknowledges the Veteran’s assertions that orthotics does not improve his foot condition. The June 2015 VA examination also noted that the Veteran remains symptomatic with the use of orthotics. However, as to the specific symptom of marked pronation, the examiner indicated that the orthotics help. The Veteran is competent to report foot pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a lay person is competent to report observable symptoms). However, he is not competent to specify that the pain is due to marked pronation. Nor is he competent to specify that the marked pronation is or is not improved by the use of orthotics. As the VA examiner possesses the medical knowledge and training to differentiate between symptoms and their impact on an overall disability picture, the Board finds the June 2015 VA assessment more probative. Thus, as the Veteran does not exhibit each of the symptoms listed in the rating criteria for a 50 percent rating and the symptom that does exist is improved by the use of orthotics, a 50 percent rating is not warranted. The Board acknowledges the Veteran’s reports of functional loss, to include when he takes his first steps in the morning or after a long period of resting his feet. However, where a diagnostic code is not predicated on a limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11(1996). As such is the case for Diagnostic Code 5276, the provisions of DeLuca do not offer any additional basis for higher ratings. The Board has also considered other potentially applicable diagnostic codes relating to the feet. However, the evidence does not reflect that there were observations or diagnoses of weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones. Thus, the diagnostic codes pertaining to those disabilities are not for application. 38 C.F.R. § 4.71a, Diagnostic Codes 5277-5283. While the Veteran’s foot disability could be rated as a residual of a foot injury under Diagnostic Code 5284, there is no evidence that suggests actual loss of the foot, to rate 40 percent. 38 C.F.R. §4.71a, Diagnostic Code 5284. Therefore, a higher or separate rating under any other diagnostic code pertaining to the impairment of feet is not warranted. Consideration has also been given to assigning staged ratings. Fenderson v. West. However, at no point during the appeal period does the evidence indicate bilateral pronounced flat foot. Accordingly, the Board finds that the disorder has not significantly changed, and a uniform rating is warranted. In light of the evidence, the Board finds that a 30 percent, but no higher, is warranted for the Veteran’s bilateral pes planus. 2. Entitlement to an earlier effective date than March 18, 2015, for the grant of service connection for bilateral pes planus In assigning effective dates, the general rule is that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. As an exception to the general rule, for direct service connection, the effective date is the day after separation from service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise the general rule applies. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2014). Any communication or action indicating intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Veteran has been assigned an effective date of March 18, 2015, for the grant of service connection for bilateral pes planus. The Veteran now seeks an earlier effective date. In the July 2015 notice of disagreement, the Veteran indicated that he is entitled to an effective date in 2003. He stated that he believes the effective date assigned is wrong because the condition was noted on his exit exam. In the September 2017 Form 9, the Veteran asserts that his effective date should be October 31, 2002. He stated that he did not know that he could appeal the original denial. In light of both assertions, the Board is unclear which effective date the Veteran seeks. However, the Board has considered all applicable provisions regarding the assignment of an earlier effective date for this appeal. Initially, the Board acknowledges the Veteran’s indication that the condition was listed on his exit exam. However, the Board notes that an effective date cannot date back to service, or the day following the Veteran’s discharge from service, because a claim was not filed within a year of his discharge. See 38 C.F.R. § 3.400(b)(2)(i). Instead, the general rule applies, and the appropriate effective date is the later of the date of claim and the date entitlement arose. As to date of claim, the Board acknowledges the Veteran’s assertions that he is entitled to an effective date in October 2002 or in 2003. The Veteran originally filed a claim for bilateral pes planus in July 2002. However, the July 2002 claim date cannot serve as the effective date. This claim was denied in a September 2002 rating decision, which the Veteran did not appeal. As the Veteran did not appeal the decision or submit new and material evidence within a year, the decision became final. 38 C.F.R. §§ 20.302, 20.1103. Therefore, the claim was no longer pending, and the effective date of that claim was not preserved. The Board acknowledges the Veteran’s assertions that he did not know he could appeal the decision. However, the November 7, 2002, letter from the RO informing the Veteran of the denial informed him that “If you do not agree with our decision, you should write and tell us why.” Thus, the Board finds that the Veteran was properly notified that the decision could be appealed. The Veteran filed a formal claim for service connection for bilateral pes planus on April 2, 2015. However, prior to this date on March 18, 2015, he initiated an electronic claim for this condition. There is no communication from the Veteran prior to this date representing intent to file a claim for service connection for a foot condition. As discussed, the July 2002 claim was no longer viable. Thus, March 18, 2015, is the date of claim. As to date entitlement arose, while a diagnosis for bilateral pes planus was already established, the condition existed prior to the Veteran’s service. Thus, the claim was one for aggravation, and entitlement was based on whether the condition was aggravated in service. See 38 U.S.C. § 1153. The June 2015 VA opinion established that the condition was aggravated during the Veteran’s service. As such, the basic criteria for entitlement arose as of the date of this opinion, June 26, 2015. As the date entitlement arose is later than the date of claim, an earlier effective date than March 18, 2015, is not available. 3. Propriety of the rating reduction from 30 to 10 percent for allergic rhinitis, effective June 1, 2016 VA regulations provide that where reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). In addition, the RO must notify the veteran that he or she has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). Prior to reducing a veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See Faust v. West, 13 Vet. App. 342,349 (2000) (citing to 38 C.F.R. §§ 4.1, 4.2, 4.10; Brown v. Brown, 5 Vet. App. at 420). The Court has held that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the Veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). In Brown, the Court articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining “whether the evidence reflects an actual change in the disability.” Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421; see also 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.10. VA’s failure to observe applicable law and consider all relevant evidence renders a reduction decision void ab initio. Greyzck, Brown. Additionally, the applicable legal standard summarized in Sorakubo v. Principi, 16 Vet. App. 120 (2002) requires that in the case of a rating reduction, the record must establish that the reduction is warranted by a preponderance of the evidence and that the reduction was in compliance with 38 C.F.R. § 3.344. In the case at hand, in a December 2015 rating decision, the RO proposed to reduce the rating assigned for the Veteran’s service-connected allergic rhinitis from 30 percent to10 percent under Diagnostic Code 6522. A March 2016 rating decision effectuated this reduction, effective June 1, 2016. However, the Board finds that the reduction is void ab initio because the provisions of 38 C.F.R. § 3.344 were not considered. In reducing the Veteran’s rating for allergic rhinitis, the Regional Office (RO) indicated that evidence shows that the condition had improved. Specifically, the RO relied on a December 2014 examination indicating that there was not greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis and not complete obstruction or nasal polyps. Additionally, the RO relied on a November 2015 examination indicating that there is greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis but not complete obstruction or nasal polyps. However, the RO made no determination that there had been actual change in the disability. The Veteran was assigned a 30 percent rating for his allergic rhinitis based on the findings of an October 2002 VA examination indicating nasal polyps. See October 2002 rating decision. In reducing the Veteran’s rating for allergic rhinitis, the RO set forth no comparison of the Veteran’s disability at the time of the reduction and when the disability rating was first assigned. While the December 2014 and November 2015 examinations indicated a lack of nasal polyps, there was no discussion from the RO of the October 2002 examination findings. While it could reasonably be inferred that the existence of nasal polyps in 2002 and lack of nasal polyps in 2014 and 2015 is sufficient, the RO also did not make any determination that the December 2014 or November 2015 examinations were adequate or based on thorough examination. See Brown. The RO also made no finding that the December 2014 and November 2015 VA examinations relied on in reducing the rating were as full and complete as the October 2002 VA examination. Notably, the Veteran indicated in his June 2016 notice of disagreement that the VA examiner did not physically examine him but only asked questions. Nor was there any finding by the RO that it was reasonably certain that the material improvement found would be maintained under the ordinary conditions of life. Brown. Thus, the Board finds that the RO did not follow the provisions of 38 C.F.R. § 3.344 in the rating decisions relating to the reduction. Moreover, the Board finds that the examinations relied on in reducing the rating indicate that any improvement was not sustained. The December 2014 examination indicated that there was not 50 percent obstruction of nasal passages on both sides. Whereas the November 2015 examination, conducted a year later, indicated that there was. These findings suggest that the condition fluctuates over time, which negates that the material improvement would be sustained. The provisions of 38 C.F.R. § 3.344 were also not considered in the July 2017 statement of the case. While the provisions of 38 C.F.R. § 3.344 were set forth in the portion of the statement of the case for pertinent laws and regulations, the RO did not discuss the provisions in stating its reasons and bases regarding the Veteran’s allergic rhinitis. CONTINUED ON NEXT PAGE As the RO did not demonstrate specific consideration of the provisions of 38 C.F.R. § 3.344, the reduction of the disability rating for the Veteran’s service-connected allergic rhinitis from 30 percent to 10 percent is void ab initio. See 38 C.F.R. § 3.344; see also Greyzck at 292; see also Brown. Therefore, the 30 percent evaluation for allergic rhinitis is restored effective June 1, 2016, as though the reduction had not occurred. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel