Citation Nr: 21004232 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-18 428 DATE: January 26, 2021 ORDER A 40 percent rating, but no higher, for degenerative disc disease of the lumbar spine (low back disability) is granted. Service connection for right foot pes planus is granted. Service connection for left foot pes planus is granted. REMANDED The issue of service connection for a right foot disability, other than pes planus, is remanded. The issue of service connection for a left foot disability, other than pes planus, is remanded. FINDINGS OF FACT 1. The Veteran’s low back disability more nearly approximated forward flexion to 30 degrees or less; there was no ankylosis or incapacitating episodes of the thoracolumbar spine. 2. The evidence is at least evenly balanced as to whether the Veteran’s bilateral pes planus had its onset in service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for a 40 percent rating, but no higher, for the low back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003-5242. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right foot pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left foot pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to May 1984 and March 1986 to May 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO continued the 20 percent rating for the low back disability and denied service connection for right foot and left foot disabilities. In September 2019, the Veteran presented testimony before the Board. In January 2020, the Board remanded the appeal for additional development. Specifically, in January 2020, the appeal was remanded to obtain a VA examination to assess the severity of the Veteran’s low back disability. In February 2020, the Veteran was afforded a VA examination that evaluated the current severity of his low back disability. The February 2020 VA back examination provided sufficient details to adequately decide the appeal. For the reasons stated above, the agency of original jurisdiction (AOJ) complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 1. A rating in excess of 20 percent for a low back disability. The Veteran’s low back disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, DCs 5003-5242. Under the applicable criteria, disabilities rated under DCs 5235 to 5243, unless 5243 is evaluated for Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5235, 5237. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees or for muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, DCs 5235, 5237. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id. Note (1) instructs to evaluate any associated objective neurologic abnormalities under an appropriate diagnostic code. Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. Alternatively, degenerative disc disease may be rating under the Formula for Rating IVDS Based on Incapacitating Episodes. This formula provides for ratings based upon the frequency and duration of incapacitating episodes during a 12-month period. An “incapacitating episode” is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. 38 C.F.R. § 4.71a, Note (1). Under this formula, ratings are assignable based on the frequency and duration of incapacitating episodes in a 12 month period, a 10 percent rating for a total duration of at least one week but less than 2 weeks; a 20 percent rating a total duration of at least 2 weeks but less than 4 weeks; a 40 percent rating a total duration of at least 4 weeks but less than 6 weeks; and a 60 percent for a total duration of at least 6 weeks. Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. Further, in claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complaints of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require “objective” evidence but can be satisfied with lay and other nonmedical evidence. Id. at 429. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Moreover, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). In May 2013 and February 2020, the Veteran was afforded VA back examinations. During the VA examinations, VA treatment visits, and the September 2019 Board hearing, the Veteran reported low back pain, difficulty walking more than one mile due to back pain, inability to get out of bed during periods of back pain, limited range of motion, difficulty bending, and increased stiffness and soreness in cold weather and in the mornings. See, e.g., VA treatment record (August 2015). Although the Veteran denied flare ups of low back symptoms at the VA examinations, he reported that he had daily low back pain and that he had increased pain after prolonged standing. The Veteran indicated that in 2013, he underwent a lumbar discectomy. See VA examination report (February 2020). Upon physical examination at the May 2013 VA examination, the ranges of motion of the thoracolumbar spine were recorded as being flexion to 60 degrees with pain and extension to 15 degrees, with pain. Upon physical examination at the February 2020 VA examination, the ranges of motion of the thoracolumbar spine were recorded as being flexion to 50 degrees with pain and extension to 10 degrees. The February 2020 examiner stated that he was unable to “offer additional losses of function or motion when it comes to repetitive use or during a flare-up.” The examiner indicated that passive range of motion testing could not be completed, as there was no contralateral joint. The February 2020 VA examiner found that the Veteran’s low back disability impacted his ability to work, as he had increased back pain upon prolonged standing. During the May 2013 and February 2020 VA examinations, the examiners indicated that the Veteran was able to perform repetitive-use testing without additional limitation in range of motion. There was functional loss and functional impairment, in terms of less movement than normal and pain on movement. See VA examination report (February 2020). Muscle strength, deep tendon reflexes, and sensation to light to touch testing was normal. See VA examination reports (May 2013; February 2020). There was no muscle atrophy, ankylosis, or IVDS of the thoracolumbar spine. For the following reasons, the Veteran’s low back disability more nearly approximated the criteria for a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. The evidence shows that the Veteran’s low back disability was limited, at worst, to forward flexion of 50 degrees with pain. To this extent, although the Veteran’s low back disability was not limited to 30 degrees or less, he reported daily low back pain, difficulty walking more than one-mile, limited range of motion, and difficulty bending over. Although the Veteran denied flare ups of low back symptoms at the VA examinations, his reports of increased pain after prolonged standing and his unable to get out of bed during periods of back pain suggest that he did, in fact, have flare up symptoms of his low back. There has been no VA examiner or treatment provider that has provided additional loss of motion during periods of flare ups of low back symptoms. In this case, the Veteran’s statements suggest that his range of motion would be significantly limited due to pain during flare ups. In light of the above and considering the frequency and severity of the Veteran’s low back pain, flare ups, and the inability for an examiner to estimate the range of motion of the back during a flare up, the evidence is at least evenly balanced as to whether the symptoms of the low back disability more nearly approximate forward flexion less than 30 degrees. As 40 percent is the highest schedular rating for limitation of motion (absent ankylosis), the Board does not have to consider whether the Veteran is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In Johnston, the Court indicated that where the veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). For the same reasons, as the Veteran is now in receipt of the highest schedular rating for limitation of motion (absent ankylosis), the Court’s holding in Correia, 28 Vet. App. at 158 is not applicable here. See also Sharp, 29 Vet. App. 26 at 33 (finding orthopedic examination inadequate with regard to flare-ups where the examination was the basis for a denial of a higher disability rating and the Veteran was not receiving the maximum schedular rating based on limitation of motion). There is no other basis for a rating higher than 40 percent for the Veteran’s low back disability. Neither the VA examination reports nor the Veteran’s statements indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Similarly, there was no evidence showing that a physician required bed rest for a duration of six weeks during the past 12 months, as required under the Formula for Rating IVDS. For the foregoing reasons, the preponderance of the evidence reflects that a 40 percent, but no higher, is warranted for the Veteran’s low back disability. The benefit-of-the-doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). The Veteran claims that his bilateral foot disability is related to his military service and that he has had bilateral foot pain and problems with his feet in and since service. See Veteran’s statement (August 2012); Board hearing transcript (September 2019). Specifically, the Veteran asserts that during service, heavy machinery fell on his feet, he was on limited duty due to foot pain, and that he was treated with orthopedics. See VA examination report (January 2005); (Board hearing transcript (September 2019). For the following reasons, service connection for bilateral pes planus is warranted. The medical evidence shows a current diagnosis of bilateral pes planus. See, e.g., VA examination (February 2020). As to the in-service disease or injury element, some of the Veteran’s service treatment records (STRs) have been unavailable. See, e.g., VA memorandum, formal finding of unavailability of service medical records (September 2004). The STRs that are available include the Veteran’s May 1980 enlistment and December 2002 separation examination reports, which reflect that he denied foot trouble and that his lower extremities were found normal upon clinical evaluation. Also, STRs include an August 2002 medical record consultation sheet that shows that the Veteran was referred to a podiatrist for painful corn/callous in the right toe, as he was unresponsive to therapy. Although the Veteran’s available STRs do not show pes planus or complaints of foot pain, he reports that he had foot pain in service, was on limited duty due to foot pain, and that he was treated with orthopedics in service. See VA examination report (January 2005): Board hearing transcript (September 2019). Furthermore, in September 2012 statements, a retired colonel and retired master sergeant reported that they witnessed the Veteran’s pain and problems with increased standing “throughout the years” and that he was treated by a podiatrist. The statements from the retired colonel and the retired master sergeant are unclear as to whether they served with the Veteran and when they first witnessed the Veteran’s pain. Regardless, a veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board finds that the Veteran’s statements regarding in service feet pain and treatment thereof are competent and credible, as his statements have been consistent throughout the appeal and the August 2002 STR shows that he was referred to a podiatrist during service. Therefore, the in-service disease or injury element has been met. The case turns on the remaining element of service connection, which is whether the Veteran’s bilateral pes planus had its onset during his military service or is related to his military service. There are three medical opinions, in this case, that provide either the onset of the Veteran’s pes planus or the etiology thereof. First, in a January 2005 VA general examination report, a VA examiner reviewed the Veteran’s claims file, interviewed him, and diagnosed pes planus. The January 2005 VA examiner indicated that the Veteran wore orthotics since service and that his “pain started in service and the first set of orthotics were given to him while in service.” The January 2005 VA examination report is highly probative as to the onset of the Veteran’s pes planus. To this extent, the January 2005 examiner documented the Veteran’s reported foot history, which was given less than two years following the Veteran’s separation from service. Furthermore, at the time of the January 2005 VA examination, the Veteran had not submitted a claim of service connection for a foot disability. Thus, the Veteran’s reported foot history was unbiased and given to the VA examiner for medical history purposes rather than for compensation purposes. Second, in an August 2019 statement, a private physician found that the Veteran’s bilateral pes planus was the result of increased standing and non-supportive shoes. The physician explained that the Veteran’s flat foot deformity was the combination of increased standing and walking for years. The August 2019 statement is afforded limited probative value, as the physician did not indicate when the onset of the Veteran’s pes planus began or whether it was due to his military service. Third, in a February 2020 opinion, a VA examiner opined that the Veteran’s bilateral pes panus was less likely than not due to his military service. The VA examiner reasoned that the Veteran had no in-service complaints of pes planus and that his pes planus was “more than likely congenital”, because there were no complaints of pes planus during service. The February 2020 VA opinion is flawed, as it was speculative and not supported with a clear rationale, and thus afforded limited probative value. To this extent, the February 2020 examiner found that the Veteran’s pes planus was “more than likely congenital”. In this case, the probative evidence does not support that the Veteran’s pes planus was congenital, as his enlistment examination report shows normal clinical evaluation of the lower extremities. Additionally, the February 2020 opinion contained speculative language, such as “more than likely”. See Polovick v. Shinseki, 23 Vet. App. 48 (2009) (a medical opinion is speculative when it uses equivocal language such as “may well be,” “could,” or “might”). For the reasons above, the Board finds that the January 2005 VA examination report is the most probative evidence as to the onset of the Veteran’s pes planus. In sum, although the some of the Veteran’s STRs have been found unavailable, an August 2002 STR shows that the Veteran was referred to a podiatrist; he reports that he was treated with orthopedics during service and that his foot pain began in service. The Veteran’s statements are collaborated by the January 2005 VA examination, which reflects that less than two years following the Veteran’s separation from service, a VA examiner diagnosed pes planus and indicated that the Veteran had foot pain that began in service. Therefore, resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s pes planus had its onset in service. Accordingly, service connection for right foot and left foot pes planus is warranted. REASONS FOR REMAND 1. The issue of service connection for a right foot disability, other than pes planus, is remanded. 2. The issue of service connection for a left foot disability, other than pes planus, is remanded. The Veteran claims that his bilateral foot disability is related to his military service and that he has had bilateral foot pain and problems with his feet in and since service. See Veteran’s statement (August 2012); Board hearing transcript (September 2019). Alternatively, he asserts that his bilateral foot disability is secondary to his service-connected low back disability. See appellant’s brief (August 2020). As indicated above, some of the Veteran’s STRs have been found unavailable. See, e.g., VA memorandum, formal finding of unavailability of service medical records (September 2004). The STRs that are available include an August 2002 medical record consultation sheet that shows that the Veteran was referred to a podiatrist for painful corn/callous in the 5th right toe and that he was unresponsive to therapy. A February 2020 VA examination report shows that a VA examiner diagnosed bilateral plantar fasciitis and hammertoes on the right fourth and fifth toes. The examiner opined that the Veteran’s bilateral foot disabilities were less likely than not due to his military service. The VA examiner reasoned that the Veteran’s separation report did not note foot problems. With respect to the plantar fasciitis, the examiner indicated that plantar fasciitis’s etiology was “poorly understood” and that possible risk factors included flat feet. As to the hammer toes, the examiner indicated that the Veteran’s 2012 podiatry examination did not show hammertoes. The February 2020 opinion is flawed, as it did not consider the Veteran’s reports of foot pain in and since service or address service connection on a secondary basis. Furthermore, the examiner did not address whether the Veteran’s in-service painful corn/ callous in the 5th right toe are related to his current hammertoes on the right fourth and fifth toes. In light of the deficiencies of the February 2020 opinion, a remand is necessary to obtain a VA opinion regarding the Veteran’s claims of service connection for right foot and left foot disabilities, other than pes planus. The matters are REMANDED for the following action: 1. Refer the claims file to a VA examiner for an opinion as to the etiology of the Veteran’s right and left foot disabilities, other than pes planus. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral plantar fasciitis and hammertoes on the right fourth and fifth toes, had their onset in service or are otherwise related to service. The examiner should address an in service August 2002 medical record consultation sheet that shows that the Veteran was referred to a podiatrist for painful corn/ callous in the 5th right toe and that he was unresponsive to therapy. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the service-connected pes planus and low back disability caused or aggravated his bilateral plantar fasciitis and hammertoes on the right fourth and fifth toes. The examiner should address the February 2020 examiner’s statement that flat feet are a possible risk factor plantar fasciitis. The examiner must provide a rationale for each opinion. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.