Citation Nr: 21003656 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-30 222 DATE: January 22, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a back disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for bilateral knee disabilities is reopened. Service connection for back disability is granted. Service connection for a right knee disability is granted. Service connection for a left knee disability is granted. Entitlement to a rating higher than 30 percent for bilateral pes planus is denied. Entitlement to a rating higher than 10 percent for right hallux valgus, status post resection and fusion of first metatarsal head with arthritis, is denied. REMANDED The claim for entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a final October 1988 rating decision, the RO denied the Veteran’s claims for service connection for bilateral knee disorders and a back disability. 2. The evidence received since the October 1988 rating decision is not cumulative or redundant of evidence previously of record and relates to unestablished facts necessary to substantiate the claims for service connection for a back disability and bilateral knee disorders. 3. The Veteran’s back and bilateral knee disorders, to include degenerative joint disease, are as likely as not caused by his service-connected bilateral foot disabilities. 4. The Veteran’s bilateral pes planus was not productive of pronounced bilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. 5. The Veteran has been in receipt of the maximum schedular rating available for right hallux valgus, status post resection and fusion of first metatarsal head with arthritis, throughout the appeal period. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim for service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received, and the claim for service connection for bilateral knee disabilities is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for a rating higher than 30 percent rating for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276. 7. The criteria for a rating higher than 10 percent for right hallux valgus, status post resection and fusion of first metatarsal head with arthritis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty June 1978 to February 1984. In a rating decision in May 2016, the RO increased the Veteran’s bilateral pes planus rating to 30 percent disabling, effective August 23, 2012, the date the claim was received. Because the increased rating does not represent a grant of the maximum benefits allowable, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2020. New and Material Evidence Claims 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back disability 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral knee disorders Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “Material” evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In unappealed August 1984 and January 1986 rating decisions, the RO denied service connection for a back disability because there was no evidence of a diagnosed disorder. In a rating decision in October 1988, the RO reopened and the claim for service connection for a back disability secondary to bilateral foot disorders and denied it on the merits. The RO also denied claims of service connection for bilateral knee disorders as secondary to the bilateral foot disorders. The RO determined that back and knee disorders were not shown. The Veteran was notified of the rating decision, but did not appeal it. As such, the October 1988 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the prior decision, the record included the service records that documented complaints of right knee pain associated with overuse; a March 1984 VA examination report which did not reflect a diagnosis or treatment for a back disability; VA treatment records that documented complaints of back and knee within a year of service discharge; an October 1988 VA examination report which did not reflect diagnoses or treatment for right or left knee disorders or a back disability, and; statements from the Veteran asserting that he developed back pain in service, and back and right and left knee disorders as a result of his service connected bilateral foot problems. The evidence received since the January 1986 decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. The medical evidence reflects diagnoses and treatment for back and bilateral knee disabilities. Additionally, in a September 2017 medical statement, a private clinician opined that the Veteran’s back disability was secondary to bilateral pes planus and similarly associated the knee disorders to the bilateral foot disorders. In November 2020, the Veteran provided testimony regarding the in-service onset of his claimed back disability. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus, 3 Vet. App. at 513. Accordingly, the claims are reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be “shown in service,” the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for a back disability 4. Entitlement to service connection for a right knee disability 5. Entitlement to service connection for a left knee disability The Veteran seeks service connection for bilateral disorders and a back disability. He contends that he developed chronic back pain service. The Veteran also claims service connection for back and bilateral knee disorders as secondary to his bilateral foot problems. He specifically asserts that as a result of the service-connected bilateral foot disorders he developed an altered gait which caused him to develop bilateral knee and back disabilities. The service treatment records show complaints of right knee pain in April 1983 associated with marching and overuse with no history of trauma. A medical evaluation report in January 1984 noted that examination of the spine and lower extremities was normal. Following service, treatment records in 1984 reflect complaints of chronic low back pain that had onset in service. He also reported pain in his feet that traveled up to his knees and lower back. April 1984 x-rays of the lumbar spine showed straightening of the usual lumbar lordotic curve usually associated with muscle spasm, with no other anatomic defects identified. Bilateral knee x-rays in March 1985 revealed no abnormalities. A clinician in October 1987 noted that the Veteran’s pes planus was causing knee and back problems. Imagining studies of the lumbar spine in 1985 reported findings consistent with lumbar sprain, and in 1988 mild degenerative changes were noted. A VA examiner in October 1988, following an examination of the Veteran, including imaging studies, found no abnormalities of the spine or knees, although an assessment of mild degenerative arthritis of the lumbosacral spine was noted. A VA examiner in April 2013 diagnosed as degenerative disc disease of the lumbar spine, degenerative joint disease of the left knee and right knee strain, and opined that the conditions were less likely than not proximately due to or the result of the Veteran’s service connected bilateral pes planus because the conditions were not shown in service and there was no objective evidence that pes planus caused degenerative changes in the spine or knee. Thereafter, a VA examiner in May 2016, opined that pes planus were not medically known to result in or cause degenerative disc disease of the lumbosacral spine or to cause a knee condition or to aggravate either type of condition. Furthermore, if pain from flat feet reduced his activity, there would be less stress, not more stress, placed on the low back and on both knees. The examiner further opined that the right knee disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness, because the service treatment recorded only minimal documentation of right knee pain in March 1984, with no subsequent diagnosis or treatment. The April 2013 and May 2016 VA examiners did not address the impact of altered gait on the Veteran’s back and knee disabilities, which is particularly relevant given that starting in 1984, within a year from service discharge, the Veteran consistently described pain that traveled from his feet to his knees and back due to his altered gait. Rather, the examiners stated without explanation in the rationale that there was no evidence that his back or knee disabilities developed or were aggravated secondary to his service-connected bilateral pes planus disability. Additionally, neither examiner address service connection for a back disability on a direct basis. A private clinician in September 2017 opined that the Veteran’s back and knee disabilities were more likely than not a result of his service connected pes planus. The clinician explained that while pes planus was technically a foot condition and not a knee or back condition, the anatomical structure of the foot was the foundation on which the entire skeletal frame was built. Therefore, an altered gait, regardless of the anatomical origin, would place uneven biomechanical stress on the superior joints of ambulation, which could, over time, lead to degenerative changes of the spine. The clinician further noted that radiology reports in the claims file supported a finding that degenerative knee changes were the result of prolonged alteration of gait due to pes planus. The Board notes that VA treatment records throughout the appeal include notations of both a normal gait and an altered gait. A VA clinician in October 2017, noted right knee pain likely due to his back disability and right knee osteoarthritis. Following a review of the evidence, including the September 2017 private medical opinion report, it appears reasonable to conclude that at least some portion of a current back and bilateral knee disorders could be “biomechanically” related to service connected bilateral foot disorders. The Board has the responsibility to determine the weight to be given to the evidence of record, and may favor one medical opinion over another. Cathell v. Brown, 8 Vet. App. 539, 543 (1996). The probative value of an opinion depends upon whether it is based on an acute history; is definitive and is supported by an adequate rationale. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Here the private clinician’s opinion reflects consideration of the Veteran’s pertinent clinical history and his assessment of the Veteran’s back and knee history is consistent with the evidence of record. Based on the clinician’s review of the pertinent medical history and the rationales to support his opinions, the favorable opinion is of greater probative value than the unfavorable opinions. As such, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for back and bilateral knee disorders as secondary to service connected bilateral foot disorders is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; Gilbert, supra. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 (2009). The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. 6. Entitlement to a rating higher than 30 percent for bilateral pes planus 7. Entitlement to a rating higher than 10 percent for right hallux valgus The Veteran contends that his pes planus and right hallux valgus disability warrant higher ratings than those currently assigned. The Veteran’s pes planus is currently rated at 30 percent under Diagnostic Code 5276 from August 23, 2012. Diagnostic Code 5276 provides for a 10 percent rating for moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating is afforded for severe bilateral acquired flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated an indication of swelling on use, and characteristic callosities. A 50 percent evaluation is assigned for pronounced bilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. Diagnostic Code 5280 provides that unilateral hallux valgus that is severe, if equivalent to amputation of great toe is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. 38 C.F.R. § 4.71a. On VA examination in April 2013, the Veteran reported painful toes associated with poor propulsion. He wore orthotics inserts without significant improvement. X-rays revealed bilateral pes planus and early degenerative changes of the left metatarsophalangeal joint. The Veteran reported that he could walk approximately 1/4 mile. There was pain on use and with manipulation of both feet, but no pain accentuated on use. There was no swelling or characteristic calluses. His symptoms were relieved by arch support. There was no extreme tenderness of plantar surface of one or both feet. He did not have decreased longitudinal arch height on weight bearing. There was no evidence of deformity, marked pronation and the weight-bearing line did not fall over or medial to the great toe. There was no inward bowing of the Achilles’ tendon. He used a cane and brace for ambulation. On VA examination in May 2016, the Veteran reported that he was given bilateral shoe inserts, but did not use them because they worsened his symptoms. He preferred to wear sneakers. Veteran stated that he had pain in the area of the right first metatarsal phalangeal joint dorsally and medially, as well milder pain in the left first metatarsal phalangeal joint medially and dorsally. The Veteran stated that the soles of both feet cramped occasionally, mainly at night. He related increased pain in the right first metatarsal phalangeal joint when it rained. The Veteran was unable to run or jump due his feet. He was unable to walk for long distances or stand for prolonged periods. The examiner noted pain on use and of both feet, with pain accentuated on use. There was no pain on manipulation, swelling or characteristic calluses. His symptoms were relieved by arch support. There was no extreme tenderness of plantar surface of one or both feet. He exhibited decreased longitudinal arch height on weight bearing with both feet. There was no evidence of deformity or marked pronation. The examiner noted that the condition chronically compromised weight-bearing. The examiner indicated that arch supports, custom orthotic inserts or shoe modifications were not required. There was no tenderness in the soles of either foot. His condition was characterized as mild. There was no inward bowing of the Achilles' tendon. He used a cane and brace for ambulation. On VA examination in July 2017, the examiner noted diagnoses of bilateral pes planus and arthritis of the right MTP joint. The examiner noted a history of bilateral hallux valgus with bunions for which he had surgical correction and bunionectomies. After service, he had a second surgical procedure to the right great toe with a fusion. The Veteran was given bilateral shoe inserts, but did not use them because reportedly they worsened his pain. He preferred to wear sneakers. The Veteran endorsed painful feet with cramping, usually at night. He described pain throughout the soles of the feet and the MTP joints with prolonged walking and prolonged standing. The Veteran endorsed flareups that were activity related. He reported being unable to run or participate in many sports, and he tried to avoid prolonged walking and prolonged standing. Examination revealed pain in his feet on accentuated use. There was no pain on manipulation, marked pronation of one or both feet, marked deformity, swelling or characteristic calluses. There was no tenderness of plantar surfaces of the feet. The Veteran used orthotics. He did not have extreme tenderness of plantar surfaces on one or both feet or decreased longitudinal arch height of one or both feet on weight-bearing. The Veteran did not have inward bowing of the Achilles tendon of one or both feet or marked inward displacement and severe spasm of the Achilles tendon on manipulation of one or both feet. The Veteran’s right hallux valgus was described as moderate. It chronically compromised weight bearing. The foot condition did not require arch supports, custom orthotic inserts or shoe modifications. The Veteran’s pain was mainly in the area of the first metatarsal phalangeal joints, more pronounced on the right than on the left. The painful areas corresponded to where he had the surgical procedures. Concerning the Veteran’s bilateral pes planus, the Board finds the condition more nearly approximates a 30 percent rating. Relevant factors include weakness, fatigability, restricted or excess movement of the joint, or pain on movement. See 38 C.F.R. § 4.45. Indeed, the medical record shows that the Veteran has bilateral foot pain, with occasional pain on with manipulation of both feet and pain accentuated on use. He exhibited decreased longitudinal arch height on weight bearing. Moreover, he has difficulty with prolonged walking, standing and playing sports. However, a rating in excess of 30 percent is not warranted since there is no evidence in record of pronounced bilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. Therefore, a higher rating is not warranted for bilateral pes planus. 38 C.F.R. § 4.71a, Diagnostic Code 5276. In this case, the Veteran has been in receipt of the maximum schedular rating for his hallux valgus of the right foot throughout the pendency of this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5280. Therefore, a rating in excess of 10 percent is not warranted for this service-connected disability. Further, the Board does not find that the Veteran’s right great toe/hallux valgus and/or bilateral pes planus would be more appropriately rated under a different Diagnostic Code as the currently applied Codes directly contemplate the Veteran’s disabilities. Finally, it is noted that the Veteran’s right hallux valgus disability involves surgical scarring and he has been assigned a separate noncompensable disability rating for his scar. Therefore, the Board has considered whether the Veteran is entitled to a compensable rating for the scarring. VA examination reports throughout the appeal, noted that while there was surgical scarring, it was not painful or unstable, nor covering a total area greater than 39 square cm. Accordingly, a separate compensable rating is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805. Given the foregoing, the Board finds the preponderance of the evidence is against the claims for a rating higher than 30 percent for the Veteran’s bilateral pes planus or a rating higher than 10 percent for right hallux valgus, and therefore the claims must be denied. See 38 U.S.C. §§ 5107 (b); Gilbert, supra. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. Although the Veteran does not presently meet the schedular criteria for TDIU, the RO has yet to assign ratings for the disabilities granted service connection herein, as discussed above. Accordingly, the Board cannot determine whether the Veteran meets the schedular criteria for TDIU. As such, this claim must be remanded pending the assignment of ratings. The matters are REMANDED for the following action: Following the assignment of a disability ratings for the back and bilateral knee disorders, and any additional development deemed necessary to address the TDIU issue, adjudicate the issue of entitlement to TDIU. Should the benefit remain denied, issue a supplemental statement of the case prior to returning the appeal to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.