Citation Nr: 21002952 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-18 047 DATE: January 19, 2021 ORDER Entitlement to service connection for right Achilles tendonitis, to include as secondary to service-connected plantar fasciitis, is denied. Entitlement to a rating in excess of 30 percent for bilateral plantar fasciitis is denied. REMANDED Entitlement to service connection status post right knee arthroscopic surgery with partial meniscectomy (right knee disability), to include as secondary to service-connected bilateral plantar fasciitis is remanded. Entitlement to service connection for basal cell carcinoma is remanded. Entitlement to a rating in excess of 10 percent, prior to December 20, 2019, for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the cervical spine is remanded. Entitlement to a rating in excess of 20 percent, December 20, 2019 and thereafter, for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the cervical spine cervical is remanded. Entitlement to a temporary total disability rating for convalescence under 38 C.F.R. § 4.30 is remanded. Entitlement to a compensable rating for residual scar, squamous cell carcinoma of the nose is remanded. FINDINGS OF FACT 1. The Veteran’s right Achilles tendonitis is not secondary to service-connected bilateral plantar fasciitis and is not otherwise related to an in-service injury or disease. 2. The Veteran’s bilateral plantar fasciitis is manifested by pain on manipulation and use accentuated and indication of swelling on use. CONCLUSIONS OF LAW 1. The criteria for service connection for right Achilles tendonitis due to service or service-connected plantar fasciitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a rating in excess of 30 percent for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2013, March 2015, and March 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the RO denied service connection for blocked left airway secondary to service-connected residual scarring, squamous cell carcinoma of the nose. The Veteran appeared for a hearing in November 2018; a transcript of the proceeding is of record. At that hearing, the Veteran clarified that the issue was service connection for basal cell carcinoma and actinic keratoses. An April 2019 Board decision granted service connection for actinic keratosis and remanded the claims for entitlement to service connection for a right knee disability and right achilles tendonitis, and an increased rating for bilateral plantar fasciitis, residual scar squamous cell carcinoma of the nose, and cervical spine degenerative disc disease (DDD) for additional development, to include obtaining VA examinations. This decision also denied service connection for basal cell carcinoma, to include on the left nostril. A July 2020 rating decision increased the Veteran’s rating for cervical spine DDD to 20 percent effective December 20, 2019 and granted service connection for right upper extremity radiculopathy related to cervical spine DDD, with an evaluation of 30 percent effective February 12, 2020. The RO also found clear and unmistakable error (CUE) in the rating for bilateral plantar fasciitis and increased his rating to 30 percent effective October 17, 2012. The Veteran’s rating for residual scar squamous cell carcinoma of the nose was continued, as well as the denial of service connection for right achilles tendonitis and a right knee condition. The Veteran appealed the denial of service connection for basal cell carcinoma to the United States Court of Appeals for Veterans Claims (Court). In February 2020, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board’s denial and remanded the matter to the Board to address whether the Veteran’s basal cell carcinoma was caused by in-service excessive sun exposure. Accordingly, in August 2020, the Board remanded this claim to obtain a VA examination to determine the nature and etiology of the Veteran’s basal cell carcinoma. The Board finds substantial compliance with the remand directives regarding the claims of service connection for right Achilles tendonitis and entitlement to a rating in excess of 30 percent for bilateral plantar fasciitis; therefore, another remand is not necessary as to those claims. Stegall v. West, 11 Vet. App. 268 (1998). However, as to the remaining claims, the Board finds there has not been substantial compliance with the previous remand directives. Another remand is required. Id. at 271. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for right Achilles tendonitis, to include as secondary to service-connected plantar fasciitis The Veteran contends that his right Achilles tendonitis is due to his service-connected bilateral plantar fasciitis. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by, service-connected bilateral fasciitis. The Board finds the Veteran has a current disability of right Achilles tendonitis. Though the February 2020 VA examination report indicated the exam did not support a current chronic condition of Achilles tendonitis, April 2016 private treatment records diagnose the Veteran with the condition. As the evidence is in equipoise regarding whether the Veteran has a current disability of right Achilles tendonitis, resolving reasonable doubt in the Veteran’s favor, the Board finds that he has a current disability of right Achilles tendonitis. However, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s condition is proximately due to or the result of, or aggravated beyond its natural progression by, service-connected bilateral plantar fasciitis. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The February 2020 VA examiner opined that the Veteran’s right Achilles tendonitis is less likely than not caused by plantar fasciitis because there is no direct anatomical connection between the two. Specifically, Achilles tendinitis refers to inflammation of the tendon connecting the calcaneus bone to the gastrocnemius muscle, facilitating plantar flexion of the foot, and plantar fasciitis refers to an inflammatory process in the soft tissue of the plantar aspect of the foot. Additionally, right Achilles tendonitis was not aggravated beyond its natural progression by plantar fasciitis because the medical evidence shows no aggravation which exceeds the natural course of Achilles tendonitis as known to the medical community. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Here, the February 2020 VA examination opinion was provided by a medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s right Achille’s tendonitis is not proximately due to or the result of, or aggravated beyond its natural progression by, his service-connected plantar fasciitis. Furthermore, there is no competing medical opinion of record. The Board thus finds that the February 2020 opinion is dispositive of the issue at hand. The Veteran believes his condition is proximately due to or the result of, or aggravated beyond its natural progression by, a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the February 2020 VA examination. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 2. Entitlement to a rating in excess of 30 percent for bilateral plantar fasciitis The Veteran contends that he is entitled to a higher rating for bilateral plantar fasciitis due to pain on manipulation and use accentuated and swelling of feet after use. The Veteran’s bilateral plantar fasciitis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under Diagnostic Code 5276, a 30 percent rating is warranted for severe bilateral involvement; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral involvement; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral involvement; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for bilateral plantar fasciitis. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain on manipulation and use accentuated and swelling of feet after use. However, even considering the Veteran’s lay reports, the degree of additional limitation reflected by his statements would not result in symptoms more nearly approximating pronounced bilateral involvement. The December 2019 and February 2020 VA examinations noted the following symptoms: bilateral pain on use of feet and manipulation of feet and no relief of symptoms with arch supports. However, the examinations did not find marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation. The Veteran has not asserted any additional symptoms that were not found on examination. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran’s disability is unlisted and rated by analogy. In this regard, Diagnostic Codes 5277, 5278, 5279, 5280, 5281, 5282, and 5283 are not applicable. The only symptoms noted are those indicated above. There is no atrophy, contraction, or evidence of metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of tarsal or metatarsal bones. Additionally, the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code. In conclusion, the Board finds that the preponderance of the evidence is a rating in excess of 30 percent for bilateral plantar fasciitis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection status post right knee arthroscopic surgery with partial meniscectomy (right knee disability), to include as secondary to service-connected bilateral plantar fasciitis is remanded. The Veteran was afforded a VA examination in February 2020, with addendum opinions provided in July and August 2020. The examiner opined against secondary service connection to service-connected bilateral plantar fasciitis, and against direct service connection. However, in opining against direct service connection, the examiner provided an inadequate rationale. The examiner opined that his right knee condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness because there was no evidence of right knee arthroscopy in service. This opinion misconstrues the Veteran’s contention and fails to provide an adequate opinion regarding whether his current knee condition is caused by his documented in-service knee strain. 2. Entitlement to service connection for basal cell carcinoma is remanded. The August 2020 Board remand directed further development, to include obtaining a VA examination to determine the etiology of the Veteran’s basal cell carcinoma. No VA examination was provided to the Veteran. Accordingly, the case is remanded. Stegall, supra. 3. Entitlement to a rating in excess of 10 percent, prior to December 20, 2019, for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the cervical spine is remanded. 4. Entitlement to a rating in excess of 20 percent, December 20, 2019 and thereafter, for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the cervical spine cervical is remanded. 5. Entitlement to a temporary total disability rating for convalescence under 38 C.F.R. § 4.30 is remanded. In March 2020 the Veteran submitted a fully developed claim for entitlement to a temporary total disability rating due to convalescence for surgery on his cervical spine. Though the Veteran submitted documentation that the surgery was completed in February 2020, the Board cannot make a determination on this matter without an updated VA examination to determine the length of the Veteran’s convalescence, and the current severity of his cervical spine condition. Because evidence obtained at this examination on remand could significantly impact a decision on the appropriate rating for the Veteran’s cervical spine condition for the entire appellate period, the issues are inextricably intertwined. A remand of all claims regarding the Veteran’s cervical spine condition is required. 6. Entitlement to a compensable rating for residual scar, squamous cell carcinoma of the nose is remanded. The August 2020 Board remand directed the Veteran be afforded a VA examination regarding the current severity of the scar on the bridge of his nose due to squamous cell carcinoma. Though he was provided with scar VA examinations in December 2019 and February 2020, the examinations did not address the scar on the bridge of his nose. Accordingly, another remand is required to afford the Veteran the appropriate VA examination. Stegall, supra. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and outstanding private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and any representative. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right knee condition is at least as likely as not (a 50/50 probability) related to the documented in-service knee strain in 1982. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? The examiner’s attention is drawn to the Veteran’s competent statement that his right knee has bothered him for over 30 years. See 2014 Letter to Senator Cornyn. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner is specifically asked to address the current functioning of the Veteran status post anterior cervical diskectomy, C5-C6 and C6-C7, to include the anticipated length of any period of convalescence required due to the surgery. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s basal cell carcinoma. The examiner must opine whether it is at least as likely as not (a 50/50 probability) related to an in-service injury, event, or disease, including conceded excessive in-service sun exposure. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected scar, squamous cell carcinoma, on the bridge of his nose. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.   The examiner must provide a complete explanation for all opinions. If the examiner is unable to render the requested opinions without resorting to speculation, the examiner must state whether there is inadequate factual information, whether the question falls beyond the knowledge of the examiner, whether the question falls beyond the scope of the medical community, or another reason. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, Associate 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.