Citation Nr: 19129083 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 17-06 393 DATE: April 16, 2019 ORDER Entitlement to an initial rating in excess of 30 percent for flat feet with plantar fasciitis is denied. REMANDED Issue of entitlement to service connection for asthma is remanded. Issue of entitlement to service connection for headaches is remanded. Issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD and depression is remanded. Issue of entitlement to an initial compensable rating for a neck strain is remanded. Issue of entitlement to an initial compensable rating for left ankle achilles tendonitis with strain is remanded. Issue of entitlement for a compensable rating for right ankle achilles tendonitis with strain is remanded. FINDING OF FACT The Veteran’s flatfeet with plantar fasciitis are manifested by symptoms consistent with pain on manipulation and use accentuated, and indication of swelling on use of the feet, which are productive of no more than severe impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for flat feet with plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5276 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1993 to January 2013. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2014 rating decision by ae Department of Veterans Affairs (VA) Regional Office (RO). A Notice of Disagreement was received July 2014. In January 2016, a Statement of the Case was issued, and, in January 2017, the Veteran filed his substantive appeal (via a VA Form 9). 1. Entitlement to an initial rating in excess of 30 percent for flat feet with plantar fasciitis. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2018). Otherwise, the lower rating will be assigned. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2018). As noted, the Veteran is in receipt of a 30 percent rating for his service-connected flat feet with plantar fasciitis under 38 C.F.R. § 4.124a, DC 5276, which pertains to an acquired flatfoot. Under DC 5276, a 30 percent rating is warranted for severe bilateral acquired flatfoot manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral flatfoot manifested by extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. The record reflects the Veteran complaints of abnormal pronation, swelling upon standing and walking, and his noted use of orthotics. See July 2014 NOD. When the Veteran was examined by VA in April 2014, the Veteran presented with a diagnosis of bilateral pes planus (flatfoot) with plantar fasciitis. The Veteran related complaints of morning pain when first putting his feet on the floor, with the pain returning with his first steps after prolonged sitting. The Veteran recounted that after a couple minutes of walking it (i.e., the pain) improves. Upon physical examination, the Veteran’s bilateral foot disability was manifested by pain on use, bilateral swelling, and a decreased longitudinal arch height. The examiner observed no pain on manipulation, no extreme tenderness of the plantar surfaces, no objective deformity, no marked pronation, no weight bearing line falling over the great toe, and no inward bowing or marked inward displacement of achilles tendon. The examiner noted mild severity bilaterally with no functional loss reported. The examiner noted that flare ups result in pain only. The examiner commented that the Veteran’s reports were not consistent with the clinical findings found on examination. Here, the objective evidence shows that the Veteran suffers from pain and swelling on use of his feet, for which he wears orthotics. These symptoms are reflected in the Veteran’s July 2014 statement and documented in the April 2014 VA examination, which also objectively demonstrates that the Veteran suffers from bilateral pes planus with plantar fasciitis with a decreased longitudinal arch height. However, as aptly noted by the record, there is no evidence of marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, or evidence of severe spasm of the tendo achilles on manipulation, including after flare-ups or on repeated use. See 38 C.F.R. §4.71a, DC 5276; see also 38 C.F.R. §§ 4.40, 4.45, DeLuca, 8 Vet. App. at 206-07. Therefore, given these findings and the Veteran’s complaints of bilateral foot pain and his use of orthotics, the Board finds it reasonable to conclude that the Veteran’s flatfeet with plantar fasciitis are productive of no more than severe functional impairment under Diagnostic Code 5276, which directs the assignment of a 30 percent rating. Accordingly, an increased initial rating is not warranted. Furthermore, there is no evidence in either VA treatment records or examination reports suggesting that the Veteran has weak foot, claw foot (pes cavus), metartsalgia (Morton’s disease), hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones at any point during the pendency of this claim. Thus, Diagnostic Codes 5277, 5278, 5279, 5281, and 5283, which pertain to these conditions, respectively, do not apply. See 38 C.F.R. § 4.71a. The Board also notes that there is no evidence in either VA treatment records or examination reports that the Veteran has hammer toes, or more specifically that he has hammer toe of all toes on either foot. Accordingly, there is no basis for assignment of a separate, compensable rating for hammer toes, because, under DC 5282, the hammer toe deformity must affect all toes to warrant a compensable evaluation. See 38 C.F.R. § 4.71a, DC 5282. In sum, the record evidence reflects that the Veteran’s flatfeet with plantar fasciitis most closely approximate the criteria for the assigned 30 percent evaluation, which contemplates severe functional impairment characterized by objective evidence of accentuated pain on manipulation and indication of swelling on use. Hence, an increased initial rating is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Issue of entitlement to service connection for asthma is remanded. The Veteran’s compensation and pension examination report indicated no asthma diagnosis, but stated that the Veteran had shortness of breath, which may be aggravated by a psychiatric disorder. See April 2014 Compensation and Pension Examination. Service connection is not in effect for a psychiatric disorder. A review of the record shows, however, that the Veteran was diagnosed with asthma in a March 2014 addendum to a Pulmonary Function Test, which reflects that the findings from the pulmonary function test were consistent with asthma. A primary care note was added to the addendum, explaining that “[c]ombining this report with your history and symptoms, it tends to confirm the asthma diagnosis.” See March 2014 addendum report with attached primary care note. Accordingly, resolving all reasonable doubt in the Veteran favor, the Board determines that a diagnosis of asthma is demonstrated by the evidence of record. 38 C.F.R. §§ 3.102. The service treatment records (STRs) indicate that the Veteran may have sustained a possible asthma attack at age 10. See STRs, p. 19. Because the record evidence reflects differing theories regarding the etiology of the Veteran’s asthma, an addendum opinion is required to determine whether the Veteran’s asthma is of service origin, or whether the Veteran’s asthma preexisted service and was aggravated thereby. 2. Issue of entitlement to service connection for headaches is remanded. The Veteran contends that his headaches are related to his active service. The Veteran was diagnosed with headaches during his April 2014 Compensation and Pension examination, but no etiology opinion was provided. The Veteran reported that his headaches began while stationed in Japan 2010-2013, and he has had persistent headaches since that time. An addendum opinion is necessary determine whether the Veteran’s headaches are related to his active service. 3. Issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD and depression is remanded. The Veteran asserts that he has a psychiatric disorder, include PTSD, which can be attributed to his active service. In an August 2013 statement, the Veteran relates that he assisted the Japanese government during the Fukushima disaster and that he worked a security detail on Veques Island during a protest. The Veteran maintains that he was stationed aboard the USS Winston Churchill and launched tomahawk missiles during operation Desert Shield. The Veteran also reports that he recovered corpses out of water following a tsunami in Japan. See April 2014 VA examination report. Upon VA examination in April 2014, the Veteran was diagnosed with a depressive disorder. However, no opinion was provided that addressed whether the Veteran’s depressive disorder is related to service, to include the stressful events he alleges to have experienced during service. In view of the foregoing, a remand is required to undertake attempts to verify the stressful events the Veteran purports to have experienced during service, and to obtain a medical opinion to determine the whether the Veteran has acquired psychiatric disorder, to include a depressive disorder, that is related to his active service. 4. Issue of entitlement to an initial compensable rating for a neck strain is remanded. 5. Issue of entitlement to an initial compensable rating for left ankle achilles tendonitis with strain is remanded. 6. Issue of entitlement for a compensable rating for right ankle achilles tendonitis with strain is remanded. With respect to assessing the overall impairment of the neck and bilateral ankle disabilities, the Veteran was last provided VA examinations in April 2014. After such examinations were conducted, the Court, in Correia v. Mc Donald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain in both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that are to be met prior to finding a VA examination adequate. After reviewing the VA neck and ankle examinations of record, the Board finds that further medical guidance is required given the holding in Correia. As such, the previous VA neck and ankle examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59 (which contemplate criteria for a compensable rating). Here, the Board observes that the April 2014 examination report concerning the neck refers by history to the Veteran’s complaints of not being able to move his head upon awakening and of significant painful motion of the neck as well as an inability to look around or over things while operating a fork lift. This history of complaints further suggests the potential importance of obtaining the complete array of range of motion assessments to fully account for the impairment of the disability. Concerning the right and left ankle disabilities, the Board observes that the April 2014 examination report indicates that the Veteran has diminished range of motion when walking up steps; and as reflected in the NOD, the Veteran related that he experiences pain and swelling of the ankles. In view of the foregoing, a remand is warranted to obtain new VA examinations that comply with the requirements set forth in Correia and 38 C.F.R. § 4.59. The matters are REMANDED for the following action: 1. Offer the Veteran an opportunity to identify and submit any outstanding VA and private treatment records relevant to the disabilities remaining on appeal, and to provide authorizations for VA to obtain records of any such private treatment. Obtain for the record all pertinent treatment records (which are not already of record) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to VA’s request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private records are received. 2. Obtain from the Veteran specific and detailed information regarding his alleged in-service stressors or the events that he attributes to his present psychiatric condition. Ask the Veteran to provide as much details as possible about (1) performing security detail on Veques island during a protest; (2) recovering corpses after a tsunami in Japan.; and (3) being stationed aboard the USS Winston Churchill launching tomahawk missiles during Operation Desert Shield. Such details are to be provided in terms of the date (month and year), location, unit assignment, and duty station of the alleged incidents. Inform the Veteran that he may submit comrade statements regarding the alleged in-service incidents to support his claim. Inform the Veteran that this information is vitally necessary to obtain supportive evidence of the stressful events and he must be as specific as possible, because without such details (date (month and year), location, unit assignment, and duty station, etc.), an adequate search for verifying information cannot be conducted. 3. After instruction (2) is completed, arrange for exhaustive development to independently verify the stressors alleged by the Veteran, as listed above. Development should include contacting the United States Army and Joint Services Records Research Center (JSRRC), or other appropriate agency, using the information provided by the Veteran (to include VA Form 21-4138, Statement in Support of Claim, dated August 8, 2013, signed by the Veteran), as well as the information available in the Veteran’s service personnel records. The agencies contacted should provide any available information that might corroborate the Veteran’s alleged in-service stressors from his active military service. Any additional action necessary for independent verification of the particular alleged stressor, including follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating information leads to negative results, it should be so documented in the claims file, along with a description of the extent of the search conducted and an explanation for the negative results (i.e., record of unavailability). 4. After instruction (3) is completed, arrange for a psychiatric/mental disorder examination of the Veteran to determine the nature and cause of any psychiatric disability that he now has. The claims file is to be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: (a) Does the Veteran meet the Diagnostic and Statistical Manual (DSM) criteria for a diagnosis of PTSD? If so, please identify the likely cause for the PTSD diagnosis. Specifically, is it at least as likely as not (a 50 percent or greater probability) that such disorder began in (or is otherwise related to) the Veteran’s military service? Please explain why that is or is not so. (b) Does the Veteran meet the DSM criteria for a mental disorder other than PTSD, to include a depressive disorder? If so, please identify (by diagnosis) each mental disorder. Please identify the likely cause for each mental disorder diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that any such mental disorder, to include a depressive disorder, began in (or is otherwise related to) the Veteran’s military service? Please explain why that is or is not so. In responding to questions “a” and “b” above, the examiner is asked to comment on the stressful events that the Veteran alleges to have experienced during service, to specifically include (1) performing security detail on Veques island during a protest; (2) recovering corpses after a tsunami in Japan.; and (3) being stationed aboard the USS Winston Churchill launching tomahawk missiles during Operation Desert Shield. 5. Arrange for a VA examination of the Veteran to determine the nature and cause of his asthma. The claims file is to be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond the following: (a) Did the Veteran’s asthma exist prior to his entry into active military service in January 1993? Please respond either “yes” or “no” and explain why that is so. (b) If the Veteran’s asthma preexisted his entry into active military service, was this condition aggravated during (or due to) his active military service from January 1993 to January 2013? In responding, the examiner is asked to specify whether the Veteran suffered any temporary to intermittent symptoms of asthma during (or due to) such service; or, whether the Veteran’s asthma permanently progressed at an abnormally high rate during (or due to) such service. In so responding, please explain why this is or is not so. (c) If the Veteran’s asthma DID NOT exist prior to his period of military service from January 1993 to January 2013, please identify the likely cause for the Veteran’s asthma. Specifically, is it at least as likely as not (a 50 percent or greater probability) that any such condition began in service (or is otherwise related to) the Veteran’s military service. If the Veteran’s asthma shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so. 6. Arrange for an addendum opinion to the April 2014 VA (headache) examination report, by a medical professional with appropriate expertise. If the medical professional deems that it is necessary, schedule the Veteran for an examination to determine the nature and cause of the Veteran’s headaches. The claims file is to be made available to and reviewed by the medical professional. The medical professional is asked to respond to the following; Please identify the likely cause for the Veteran’s headaches. Specifically, is it at least as likely as not (a 50 percent or greater probability) that any such condition began in (or is otherwise related to) the Veteran’s military service? If the Veteran’s headaches shown is deemed to be unrelated to service, the medical professional should, if possible, identify the cause considered more likely and explain why that is so. 7. Schedule the Veteran for a VA orthopedic examination(s) to determine the level of impairment due his service-connected neck strain and his left and right ankle achilles tendonitis with strain. **The claims file and a copy of this Remand must be made available to and reviewed by the examiners in conjunction with the examination. The examiner(s) should note in the examination report that the claims folder and the Remand have been reviewed. **All studies and tests needed to ascertain the status of the service-connected left and right ankle and neck disabilities, to include all indicated tests and studies to include x-ray examination and diagnostic imaging studies, if deemed necessary, should be performed and written interpretation of such should be associated with the examination report. **Based on the examination of the Veteran, and review of the record, the examiner(s) should fully describe the functional effects of the Veteran’s service-connected left and right ankle achilles tendonitis with strain, and neck strain, on his activities of daily living. **In particular, the examiners should describe what types of activities would be limited because of the service-connected ankle and neck disabilities and what types of activities would not be limited (if any), and whether any limitation on activities is likely to be permanent. **The examiners should record the pertinent medical complaints, symptoms, and clinical findings. **The examiners should describe, in degrees of excursion, active and passive ranges of motion for the right and left ankles and for the neck, as well on weight-bearing and non-weight bearing, as demonstrated on examination. If the examiners are unable to conduct any aspect of the required testing, they should explain why that is so. **With respect to the Veteran’s subjective complaints of pain, the examiners are asked to comment on whether pain is visibly manifested on range of motion testing of the left and right ankles and of the neck (and during any other types of movement/use) and if so, at what point (expressed in degrees of excursion, if possible) such pain is elicited during such testing. **The examiners are asked to comment on whether the Veteran’s subjective complaints regarding any pertinent symptoms are consistent with the clinical data/objective findings. **The examiners are asked to comment on whether pain limits range of motion (in either or both ankles and the neck) during flare-ups and/or when the joint is used repeatedly over a period of time; and this determination, if possible, should be expressed in terms of any additional limitation (in the degrees of excursion) due to pain on use and/or during flare ups. **The examiners are asked to comment on whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups of the either or both ankles, and of the neck). The examiner is asked to assess or estimate the additional functional impairment on repeated use and/or during flare-ups in terms of any additional limitation. **The examiners should identify the presence, or absence of ankylosis. **If the severity of the manifestation cannot be quantified, the examiner should explain why that is so. A detailed explanation (rationale) is requested for all opinions provided, citing supporting clinical data and/or medical literature, as appropriate. 3. After the above development has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and then re-adjudicate the claims. If benefits sought on appeal remain denied, furnish the Veteran and his representative with a supplemental statement of the case and allow an appropriate period for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Hoover, Associate Counsel