Citation Nr: 20020587 Decision Date: 03/20/20 Archive Date: 03/20/20 DOCKET NO. 14-22 003 DATE: March 20, 2020 ORDER Entitlement to service connection for headaches, dizziness, and blurred vision, as secondary to a service-connected disability, is denied. Entitlement to an increased rating higher than 30 percent for bilateral plantar fasciitis with pes planus and plantar keratosis is denied. FINDINGS OF FACT 1. Headaches, dizziness, and blurred vision are not etiologically related to service and are not secondary to a service-connected disability. 2. Bilateral plantar fasciitis with pes planus and plantar keratosis has not been manifested by pronounced symptoms such as marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement and severe spasm of the Achilles tendon. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches, dizziness, and blurred vision, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to a rating higher than 30 percent for bilateral plantar fasciitis with pes planus and plantar keratosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1974 to July 1978. In a statement in February 2020, the Veteran questioned the adequacy of a November 2019 opinion, stating that Dr. J.T. just rubber stamped the initial VA opinions in the file without examining him or providing a sufficient rationale for the conclusion whether Etodolac, prescribed for the Veteran’s feet, caused his headaches, dizziness, and blurred vision. The Veteran noted that a different examiner in August 2018 concluded that an opinion could not be provided because the Veteran needed to see an ophthalmology specialist. Notably, the Board in the December 2017 remand instructed that in light of additional records being associated with the file, an addendum opinion be obtained from the examiners who conducted the March 2012 VA examinations to determine whether any changes were warranted to the March 2012 opinions As for the August 2018 VA examiner, this examiner noted that the Veteran was unavailable to be examined and after reviewing the file declined to provide an addendum opinion due to the lack of expertise in the field of ophthalmology, noting that the examiner who provided the initial opinion was no longer employed by the medical center. The August 2018 VA examiner did not address whether the additional records indicated any change in the Veteran’s claimed disability to require that new opinions be obtained. However, as discussed above, the Board’s remand directives did not request that the Veteran be examined and instead requested opinions whether newly added evidence was inconsistent with the initial March 2012 opinions, which included a March 2012 opinion from an ophthalmologist. In November 2019 Dr. J.T. noted that it was not required for the Veteran to be examined and after reviewing the claims file opined that no change was necessary to the initial opinions rendered in March 2012. In December 2019 Dr. J.T. confirmed that the additionally received evidence did not substantially change the rationales provided by the initial examiners in March 2012 and the initial opinions remained unchanged. Thus, the Board finds that there has been substantial compliance with the Board’s remand directives in March 2017 and a remand for an additional opinion would serve no useful purpose. As for the Veteran’s claim of entitlement to an increased rating higher than 30 percent for bilateral plantar fasciitis with pes planus and plantar keratosis, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346 (2016), found that the plain language of 38 C.F.R. § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements. The Veteran was afforded VA examinations in January 2014, August 2018, and in October 2019. The Board finds that the examinations provided evidence adequate to rate the Veteran’s disability considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. See Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Issue 1: Entitlement to service connection for headaches, dizziness, and blurred vision, as secondary to a service-connected disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The service treatment records do not show nor does the Veteran contend that he has headaches, dizziness, and blurred vision directly related to service. Instead the Veteran contends that he has headaches, blurred vision, dizziness and sleep impairment secondary to pain medication for his service-connected feet. See, e.g., June 2014 Form 9 Appeal. He is service connected for plantar fascitis with bilateral pes planus and bilateral keratosis, hallux valgus of the left foot, right inguinal hernia repair with nerve involvement, tinnitus, and bilateral hearing loss. In his March 2011 claim, he stated that side effects from prescription pain blockers caused his dizziness, headache, blurred vision, and sleep disturbance. In a statement 2020 the Veteran stated that he was prescribed Etodolac for his service-connected feet, which caused headaches, dizziness, and blurred vision. He noted he went to the Emergency Room after taking Etodolac due to side effects and continues to suffer from chronic headaches. In August 2017 the Veteran testified that that his medications for his service-connected feet aggravated his headaches, dizziness, and blurred vision. He noted that he has not been diagnosed with sleep apnea but the pain medication aggravated his service-connected tinnitus that lead to the other problems. The evidence shows that in December 2008 the Veteran went to the Emergency Room due to hives after his medication was changed to Etodolac from Naproxen. It was noted that he had an allergic reaction to non-steroidal-anti-inflammatory drugs (NSAIDs), including Naproxen. Prescription records show that he was taking Naproxen in April 2008 and Diclofenac in August 2009. Treatment records in January 2009 show that the Veteran reported taking Naproxen for shoulder pain. In February 2019, the treatment records show that it was reexplained to the Veteran that his headaches were related to his temporomandibular joint disorder. In September 2009 the records show an assessment of retinal drusen and presbyopia in both eyes. Treatment records in November 2016 show that the Veteran was prescribed Ibuprofen for knee pain. VA treatment records including in May 2017 and August 2019 show that the Veteran was allergic to Clarithromycin, Naproxen, Etodolac, Ibuprofen, Doxazosin, and Testoderm 4MG. Treatment records in November 2019 show the Veteran had conjunctivitis, presbyopia, suspect glaucoma, and cataracts. VA treatment records in January 2020 show the Veteran was taking Diclofenac for pain and inflammation. On VA ear examination in March 2012, the examiner opined that the Veteran did not have an ear or peripheral vestibular condition. The examiner opined that the Veteran had tinnitus, vertigo, and staggering. The Veteran complained of an onset of dizziness when he was prescribed pain medication. On VA headache examination in March 2012, the examiner opined that the Veteran had a diagnosis of sinus headaches. The Veteran reported that medications taken to treat pain in his foot “kicked them full blown.” He noted that the headaches increased after the medications were stopped. The examiner noted that there is conflicting evidence as to the cause of the headaches and noted that the Veteran reported medications for mental health were the cause while records show that Etodolac, given for the right shoulder, was the cause. The examiner pointed out that the Veteran had no documented drug reaction from treatment for the service-connected feet to include from NSAIDs, which would have caused a similar reaction to Etodolac. The examiner noted that the Veteran was prescribed Diclofenac, which is similar to Etodolac. The examiner found that the current examination did not reveal clinical abnormalities associated with any previous medication reaction. Based on review of the medication involved, discussion with staff pharmacists, and research into the potential permanent disability of dizziness and headache resulting from NSAID use revealed no lasting disease or disabling conditions from this medication once removed from use. The examiner opined that the Veteran’s claimed symptoms of dizziness and headaches are not related to medications used to treat his service-connected bilateral foot disability, noting that the Veteran had no residual permanent or transitory disease or injury that resulted from using Etodolac, which was used to treat a right shoulder disability that is a non-service-connected disability. On VA eye examination in March 2012, the Veteran complained of blurriness with headaches. The diagnosis was refractive error both eyes, which the examiner opined was unlikely related to pain medications but age related and correctable with reading glasses. As discussed above, Dr. J.T. in November 2019 after reviewing the claims file opined that no change was necessary to the initial opinions rendered in March 2012. In December 2019 Dr. J.T. confirmed that the additionally received evidence did not substantially change the rationales provided by the initial examiners in March 2012 and the initial opinions remained unchanged. The Board finds Dr. J.T.’s opinions to be probative as the March 2012 VA opinions are uncontroverted by the treatment records as summarized above that were received both prior and after March 2012. Although it is not completely clear whether Etodolac was only prescribed for shoulder pain, as explained by the March 2012 VA examiner the use of Etodolac would not result in a permanent or transitory disease or injury. While the Veteran has allergies to some medications, the evidence does not show that he has developed allergies to include headaches, dizziness, and blurred vision as a result of the medications prescribed for his service-connected feet. Thus, the above VA opinions in conjunction with the treatment records in the claims file are probative as they were based on medical principles and applied to the facts of the case. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The examiners considered the Veteran’s medical history in proffering the opinions. The opinions are uncontroverted by the other competent evidence of record. As discussed above, the August 2018 opinion was inadequate and therefore need not be further considered. As a lay person, the Veteran is competent to report symptoms pertaining to his claimed headaches, dizziness, and blurred vision. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of the Veteran’s claimed headaches, dizziness, and blurred vision as secondary to the medication taken for his service-connected feet falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). This is not the type of disability readily amenable to mere lay diagnosis or probative comment regarding its etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorder. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent, the matter of whether it is credible is not reached. Accordingly, because the preponderance of the evidence is against the claim of service connection for headaches, dizziness, and blurred vision, as secondary to a service-connected disability, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 Issue 2: Entitlement to an increased rating higher than 30 percent for bilateral plantar fasciitis with pes planus and plantar keratosis. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has held that a higher rating can be based on “greater limitation of motion due to pain on use.” See DeLuca 8 Vet. App. at 206. Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” 38 C.F.R. § 4.40. The Veteran’s service-connected bilateral plantar fasciitis with pes planus and plantar keratosis is rated by analogy under Diagnostic Codes 5299-5276. Plantar fasciitis is an inflammation of plantar fascia, owing to repetitive stretching or tearing of muscle fibers near their attachment to the calcaneal tuberosity. It is one of the most common causes of heel pain. See Dorland’s Illustrated Medical Dictionary 684 (32nd ed. 2012). As plantar fascitis is not specifically listed in the Diagnostic Code, it has been rated under the criteria for pes planus. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Pursuant to Diagnostic Code 5276 a 30 percent rating is assigned for severe bilateral pes planus and requires objective evidence of marked deformity, pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. Id. A 50 percent rating is assigned for pronounced bilateral pes planus, with marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. Id. The Veteran is in receipt of a separate rating for hallux valgus of the left foot under Diagnostic Code 5280, which is not currently in appellate status. Diagnostic Code 5284 provides rating for other foot injuries. When a diagnosis, such as plantar fascitis, is not specifically listed, it may be rated under a closely related disease or injury for which the functions affected, and anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board finds that Diagnostic Code 5276 for pes planus is the most appropriate analogous rating code for the Veteran’s disorder as he is service connected for plantar fasciitis with pes planus and both pes planus and plantar fasciitis affect the plantar aspect of the foot and manifest with similar symptoms of pain and spasm in the bottom of the foot while standing and walking. The totality of the evidence of record does not more nearly approximate the criteria for a rating higher than 30 percent for bilateral plantar fascitis with pes planus and plantar keratosis under Diagnostic Code 5276 as the disability was not manifested by marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement and severe spasm of the Achilles tendon on manipulation, which was not improved by orthopedic shoes or appliances. On VA flatfoot examination in January 2014, the Veteran had pain and manipulation on use of the feet that was accentuated. There was swelling on use and calluses in both feet. The Veteran had tenderness in both feet not improved by shoes or appliances. There was no decreased longitudinal arch height on weight-bearing, no objective evidence of marked deformity of the foot (pronation, abduction etc.), no marked pronation, no inward bowing of the Achilles’ tendon, and no marked inward displacement and severe spasm of the Achilles tendon on manipulation. The examiner commented that there was no supporting radiological evidence for the claimed pes planus. The examiner commented that there was no supporting evidence for pain, weakness, fatigability, flare-ups or incoordination to significantly limit functional ability or when the joint was used repeatedly over a period of time, and additional limitation due to pain, weakness, fatigability or incoordination based upon subjective and objective evidence. In his Form 9 Appeal dated June 2014, the Veteran stated that he has had pain and numbness in his feet and had to have his calluses debrided every three months. On VA Disability Benefits Questionnaire (DBQ) examination of the feet in August 2018, the examiner checked the box indicating that the Veteran had hallux valgus in both feet, however he is only service connected for hallux valgus in his left foot, and this issue is not currently before the Board. The examiner noted that the Veteran has had steroid injections in his feet. He used prosthetics for about 9 years. The Veteran complained pain, numbness, and tingling in his feet. He complained of flare-ups that occur at least a couple times per day. He noted that he was able to stand for 30 minutes at a time. The examination shows the Veteran had pain on use of the feet, the pain was accentuated. He had pain on manipulation of the feet that was accentuated. He had swelling and characteristic calluses. He wore arch supports and orthotics. He did not have extreme tenderness of plantar surfaces in his feet. There was objective evidence of marked deformity in the feet but there was no marked pronation. There was no marked inward displacement and severe spasm of the Achilles’ tendon on manipulation of the feet. The examiner opined that the Veteran had functional loss and limitation of motion due to excess fatigability, incoordination, pain on movement, pain on weight-bearing (but not weight bearing), swelling, deformity, instability, disturbance of locomotion, and interference with standing. The examiner opined that there was weakness, fatigability and loss of range of motion during flare-ups or when each foot was used over a period of time. The Veteran walked with a cane. The examiner commented that the Veteran’s service-connected bilateral plantar fascitis, pes planus, and plantar keratosis was moderate. The examiner noted that the Veteran’s foot disability persisted and did not significantly increase in severity. On VA foot examination in October 2019, the Veteran reported having throbbing pain in his feet. He felt that flare-ups made it harder from him to walk and stand for long periods, causing functional impairment. Physical examination shows that the Veteran had pain on use of the feet that was accentuated. He did not have pain on manipulation of the feet, swelling on use or characteristic callouses. He wore orthotics without relief. He did not have extreme tenderness of plantar surfaces. There was no objective evidence of marked deformity of the feet. There was no marked pronation of the feet. There was no marked inward bowing of the Achilles tendon of the feet nor was there marked inward displacement and severe spasm of the Achilles tendon on manipulation of the feet. The examiner noted that there was no pain during the examination but noted that the Veteran reported pain only when standing. The examiner noted that there was pain on non-weight bearing. The examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when the feet were used repeatedly over a period of time. The above examination findings are not controverted by the other competent evidence of record. The Board also has considered the Veteran’s statements that describe his bilateral plantar fascitis with pes planus and plantar keratosis. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. To the extent that the Veteran may believe that he is entitled to a higher rating or additional rating, the Board finds the objective medical findings by skilled professionals are more persuasive which, as indicated above, do not support a rating higher than 30 percent.   Thus, for the reasons explained above the preponderance of the evidence is against a rating higher than 30 percent for bilateral plantar fasciitis with pes planus and plantar keratosis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.