Citation Nr: 19136830 Decision Date: 05/14/19 Archive Date: 05/13/19 DOCKET NO. 17-56 080A DATE: May 14, 2019 ORDER Entitlement to service connection for lumbosacral strain (claimed as low back condition) is denied. Entitlement to an initial rating of 10 percent, but no greater, for bilateral flat feet, claimed as bilateral foot condition is granted. FINDINGS OF FACT 1. The preponderance of the evidence fails to establish an etiological relationship between the Veteran’s lumbosacral strain and active duty service. 2. The Veteran has moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo Achilles, pain on manipulation and use of the feet; however, even in consideration of his complaints of pain, pain on motion, and functional loss, he does not exhibit severe objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities, unilateral or bilaterally. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbosacral strain (claimed as low back condition) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for an initial rating of 10 percent, but no greater, for bilateral flat feet have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army April 1999 through August 2001. He was honorably discharged. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for lumbosacral strain, claimed as low back condition Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran was diagnosed with a lumbosacral strain in 2017. The Veteran’s service treatment records (STRs) reveal he was treated for intermittent low back pain during active duty service. Shedden elements (1) and (2) have been met. Turning to Shedden element (3), a nexus or relationship, the Veteran underwent a VA examination in March 2017. The examiner reviewed the Veteran’s file and conducted an in-person examination. She opined that the Veteran’s condition was less likely than not related to his military service. She stated that the Veteran’s STRs revealed possible beginnings of ankylosing spondylitis. However, x-rays taken at the time of the examination were essentially normal. There was no arthritis, spondylosis, or spondylolisthesis. Additionally, she stated that since leaving service the Veteran increased his muscle strength and he did not complain of pain during exercises. She indicated that this was evidence that the Veteran’s inservice low back complaints/pain had resolved. The Board affords the examiner’s opinion great weight, as it was based on medical principles and adequate rationale, and the examiner considered the Veteran’s lay statements and history of symptom manifestation. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). There is no competent opinion to the contrary. Consideration has been given to the Veteran’s personal belief that his current low back strain is related to his active service. He is competent report experiencing low back pain. However, he lacks the competence to provide an opinion on his currently diagnosed lumbosacral strain. His opinion is also outweighed by the opinion of the VA examiner. Moreover, his reported history of experiencing low back pain continuously through service and beyond is undermined by the in-service reports showing that his complaints of low back pain ceased after he participated in strength training. In conclusion, the Board finds that service connection for lumbosacral strain is not warranted. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. 2. Entitlement to an initial compensable rating for bilateral flat feet Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, without objective functional loss, does not require that a higher rating be assigned. The assignment of highest rating for pain without other objective findings would lead to potentially ‘absurd results’. Id. at 43. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran’s bilateral flat feet disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276. Diagnostic Code 5276 provides ratings for acquired flatfoot. Mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as non-compensable. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo Achilles, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, 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 disability, and is rated 30 percent disabling for bilateral disability. 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, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. VA Medical Center records indicate the Veteran experienced mild discomfort along medial plantar fascial bands in May 2010 and he was prescribed custom orthotics in December 2010. The Veteran reported that the orthotics worked well. In May 2016 the Veteran complained about foot pain and was provided with new inserts. The Veteran underwent a VA examination in March 2017. He reported pain, flare-ups, and functional loss of the foot. He described foot pain as a burning, aching, and stabbing sensation with flare-ups that caused tingling and burning. He said he was unable to walk or stand for long periods of time. The examiner noted bilateral foot pain upon use and manipulation of the feet. The examiner did not observe swelling, characteristic calluses, marked deformity, or marked pronation. The Veteran had extreme tenderness of plantar surfaces and decreased longitudinal arch of height of both feet. He reported, however, that orthotics relieved his feet pain. The weight-bearing line did fall over or medial to the great toe. The examiner did not observe any lower extremity deformity other than pes planus, causing alteration of the weight bearing line. The Veteran did not have marked inward displacement, severe spasm, or “inward” bowing of the Achilles Tendon. The examiner noted that the Veteran did not have foot surgery. Upon physical examination, there was objective evidence of bilateral foot pain which contributed to functional loss. Pain on weight-bearing, burning, and tingling contributed to functional loss. There was no evidence of pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the feet were used repeatedly over a period of time. In Southall-Norman v. McDonald, 28 Vet. App. 346 (2016), the Court held that 38 C.F.R. § 4.59 applies specifically to Diagnostic Code 5276 and pes planus, and that “painful motion” and “actually painful joints” are synonymous. Id. at 354. Here, as discussed, the Veteran did not meet the criteria for a compensable rating under Diagnostic Code 5276. He did not have pain on manipulation and that the weight-bearing line did not fall over or medial to the great toe for both feet. He also does not have an inward bowing of the Achilles tendon or a marked inward displacement with severe spasm of the Achilles tendon on manipulation. However, in light of the Veteran’s credible complaints of pain in the feet with prolonged standing and walking, the Board finds that by resolving all reasonable doubt in the Veteran’s favor, his pes planus has resulted in moderate impairment, which is the minimum compensable rating under DC 5276. The Veteran’s bilateral pes planus supports the assignment of an initial 10 percent rating, with the application of the provisions of 38 C.F.R. § 4.59, consistent with the holding in Southall-Norman. To get a higher rating, there would need to be evidence of severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, unilaterally or bilaterally. Such was simply not shown at either examination or in the treatment records. Indeed, even in considering his complaints of pain, pain on motion, and functional loss, the limitation of function experienced by the Veteran, there is simply no evidence of severe flatfoot or evidence of marked deformity, indication of swelling on use, characteristic callosities, unilaterally or bilaterally. In Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015), the Court of Appeals for Veterans Claims (Court) made clear that “when a condition is specifically listed in the Schedule, it may not be rated by analogy.” The Court interpreted the regulations governing conditions of the feet and found that the eight foot conditions specifically listed under 38 C.F.R. § 4.71a could not be rated under Diagnostic Code 5284, because “to hold that DC 5284 applies to the other eight listed foot conditions would essentially render those (other) DCs redundant.” Id. at 337-38. In other words, the only diagnostic code under which the Veteran’s pes planus may permissibly be evaluated is 5276. Accordingly, the Board finds that the claim of entitlement to an initial disability rating of 10 percent, but no greater, for bilateral flat foot is granted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assigning a higher rating, that doctrine is not applicable. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mahmoudi, Associate Counsel