Citation Nr: 21062527 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 13-29 167 DATE: October 7, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to May 29, 2018 for pes planus is denied. Entitlement to an initial rating in excess of 50 percent from May 29, 2018 forward for pes planus is denied. REMANDED Entitlement to an increased rating in excess of 10 percent prior to October 12, 2011 and in excess of 20 percent thereafter for residuals of a recurrent ankle sprain with chronic swelling (hereinafter "right ankle disability") is remanded. Entitlement to an increased rating in excess of 10 percent prior to August 26, 2013 and in excess of 20 percent thereafter for a low back strain is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for asthma is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 29, 2018, the Veteran's pes planus was manifested by pain on use, fatigue, weakness, stiffness, some tenderness, and limitations with prolonged walking and standing. 2. From May 29, 2018 forward, the Veteran's pes planus was manifested by pain, weakness, swelling, limitation of use, accentuated pain on use, and the use of orthopedic shoes or appliances that do not relieve symptoms. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent prior to May 29, 2018 for pes planus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. 2. The criteria for an increased rating in excess of 50 percent from May 29, 2018 forward for pes planus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to September 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2009, June 2011, and November 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal for additional development in November 2017. The requested examinations and opinions were obtained in June 2018 and updated VA treatment records have been associated with the file. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also dismissed the issue of service connection for residuals of a traumatic brain injury, which was not appealed. Therefore, that issue is no longer on appeal. 38 C.F.R. § 20.1100. The Board also remanded the issues of entitlement to service connection for a psychiatric disability, a left knee disability, and a left ankle disability. While on remand, service connection for those three disabilities was granted in a rating decision issued in July 2020. As this constitutes a full grant of the benefits sought, those issues are no longer before the Board. Ab v. Brown, 6 Vet. App. 35 (1993). In July 2020 the RO also granted an increased rating of 50 percent for the Veteran's pes planus, effective May 29, 2018. As this does not constitute a full grant of the benefits sought, that issue remains on appeal. Id. The issue has been recharacterized to reflect the award of the staged increased rating. 1. Entitlement to an increased rating for pes planus Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The Veteran's pes planus is rated under Diagnostic Code 5276. As an initial matter, effective February 7, 2021, VA amended the regulations governing the rating of musculoskeletal disabilities. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). However, the diagnostic criteria contained in Diagnostic Code 5276 were not altered. As such, the Board will not discuss the amendment further. Diagnostic Code 5276 provides different ratings for unilateral and bilateral pes planus. As the Veteran's pes planus has been noted to be bilateral, the Board will only consider the ratings available for bilateral pes planus. Under Diagnostic Code 5276, a 10 percent rating is warranted for bilateral moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, Diagnostic Code 5276. A 30 percent rating is warranted for severe bilateral flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Id. Finally, a 50 percent rating is warranted for pronounced bilateral flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and not improved by orthopedic shoes or appliances. Id. During the period on appeal, the Veteran has generally reported constant bilateral foot pain that is severe in nature. The Veteran has also reported limitations on prolonged walking and standing. The Veteran is competent to report such symptoms, and there is no evidence that his statements are not credible. As such, these statements are entitled to probative weight as to the severity of the disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran was provided with VA examinations in October 2011 and May 2018. During the October 2011 examination, the Veteran reported that he experienced constant pain in both of his feet, with additional symptoms of weakness, stiffness, and fatigue. The Veteran stated that the foot disability limited his ability to engage in prolonged walking or standing. On examination, the examiner noted pain on motion and tenderness bilaterally, but no evidence of edema, weakness, atrophy, heat, redness or instability. There was slight tenderness on palpation of the plantar surface of the foot bilaterally. Alignment of the Achilles tendon was normal bilaterally with both weightbearing and non-weightbearing. There was no evidence of any deformity or malalignment of either foot, and the examiner stated that the Veteran did not require orthopedic shoes, corrective shoes, arch supports, foot supports, inserts or build-up of his shoes. There was no evidence of loss of use of the feet. At the May 2018 examination the Veteran reported flare-ups with pain, weakness, swelling and limitation of use, specifically with respect to prolonged walking or standing. The examiner stated that the Veteran had bilateral pain on use, but that there was no evidence of pain on manipulation of the feet, swelling on use, or characteristic calluses. The examiner stated that the Veteran used arch supports and built-up shoes bilaterally, but that these did not relieve symptoms in either foot. There was no evidence of extreme tenderness of the plantar surfaces, but the examiner noted that the Veteran had marked pronation of both feet and that the weight-bearing line fell over or medial to the great toe bilaterally. There was no evidence of impairment of the Achilles tendon. The examiner stated that the Veteran's bilateral pain interfered with prolonged walking and standing, but that there was no evidence of loss of use of either foot. There is no evidence that the examiners were either not competent or credible. Further, both examiners based their assessments on both the Veteran's own account of his symptoms, as well as their objective findings following an examination of the Veteran's feet. As such, the Board finds that the examination reports are entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In support of his claim, the Veteran submitted a February 2012 private evaluation which noted tenderness over the plantar surfaces of the feet bilaterally, but that there was no evidence of marked deformity or callosities. The examiner further noted that the Veteran subjectively complained of significant pain in both feet and limitations on walking and standing. Treatment records associated with the file reflect consistent reports of bilateral foot pain associated with the Veteran's pes planus. However, the records do not reflect any deformity of the bilateral feet or any issues with the Achilles tendon in either foot. Podiatry records prior to May 2018 reflect that the Veteran was prescribed shoes for his diabetic neuropathy, but not his bilateral pes planus. Based on the foregoing, an increased rating in excess of 10 percent prior to May 29, 2018 and in excess of 50 percent thereafter is not warranted. Beginning with the period prior to May 29, 2018, neither the lay nor medical evidence reflects that the Veteran's pes planus was manifested by any deformity of the foot, such as pronation or abduction, with both the October 2011 VA examiner and the February 2012 private examiner both specifically stating that there was no evidence of deformity or callosities on examination. In addition, none of the evidence indicated that there were any issues with inward bowing or displacement of the Achilles tendon on either side, and neither the October 2011 VA examiner or the February 2012 private examiner noted that the Veteran had pain on manipulation, accentuated pain on manipulation or use, or swelling. Although both the October 2011 VA examiner and the February 2012 private examiner noted some tenderness on the plantar surfaces of the feet, neither indicated that the tenderness was extreme, nor do the treatment records otherwise reflect extreme tenderness. As the Veteran was found to have only "some" tenderness, the Board finds that this does not more nearly approximate the level of severity contemplated by a 50 percent rating for pes planus. Finally, the October 2011 VA examiner noted that the Veteran did not use orthopedic supports of any kind for his pes planus, and the February 2012 private examiner also did not note the use of orthotics to treat the pes planus. Podiatry records reflect that the Veteran has been prescribed special shoes since approximately 2011, but they further specifically note that the shoes were prescribed for the Veteran's diabetes mellitus with neuropathy, not the Veteran's pes planus. The Board notes that the May 2018 examiner noted that the Veteran used orthotics for his pes planus which did not relieve his symptoms. However, prior to the date of that examination there is no evidence that the Veteran used orthopedic shoes or appliances for his pes planus and that the use of these shoes or appliances did not alleviate his symptoms. As such, the Board finds that the preponderance of the evidence is against a finding that an increased rating in excess of 10 percent prior to May 29, 2018, as the Veteran's bilateral pes planus did not more nearly approximate the level of severity contemplated by higher ratings. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5276. From May 29, 2018 forward, the Veteran is already in receipt of the highest possible schedular rating for bilateral pes planus. As an increased rating is not possible from that date forward, entitlement to an increased rating from May 29, 2018 forward for bilateral pes planus is denied. 38 C.F.R. §§ 4.1, 4.3, 4.7, Diagnostic Code 4.71a, Diagnostic Code 5276. The Veteran has only been diagnosed with pes planus, which is specifically covered by Diagnostic Code 5276. As such, it would be inappropriate to rate this disability by analogy to any other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333, 33637 (2015) ("the Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy"). Thus, consideration of any alternative Diagnostic Codes is not warranted in this case. Finally, the Board notes that the February 2012 private medical evaluation stated that the Veteran should be assigned an extraschedular rating based on the severity of his pain. Thun v. Peake, 22 Vet. App. 111, 115116 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). However, the Veteran's pain in his bilateral feet is already fully contemplated by the ratings assigned during the period on appeal, as Diagnostic Code 5276 specifically considers the presence of pain, and indeed further specifically considers different levels or severities of pain. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (noting that the present of pain on manipulation warrants a 10 percent rating while the presence of accentuated pain on manipulation warrants a 30 percent rating). As the Veteran's pain is already contemplated by the assigned Diagnostic Code, and there is no evidence of any other symptoms not contemplated by the rating criteria, referral for extraschedular consideration is not warranted. Long v. Wilkie, 33 Vet. App. 167, 17374 (2020); Chudy v. O'Rourke, 30 Vet. App. 34, 3839 (2018). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an initial rating in excess of 10 percent prior to May 29, 2018 and in excess of 50 percent thereafter for the Veteran's service-connected pes planus. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to increased ratings for a right ankle disability and a low back strain. The Veteran was provided with VA examinations concerning the right ankle and low back disabilities. The Veteran reported experiencing flare-ups of both disabilities, but the examiner stated that an estimate concerning range of motion loss during flare-ups could not be provided because the Veteran's flare-ups varied in severity. First, the Board notes that based on the examination report it does not appear that the Veteran reported significant variances in the severity of his flare-ups. Second, the examiner still should have attempted to provide an estimate concerning the average amount of loss of range of motion during a flare-up, based on the Veteran's accounts of his symptoms. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). As such, a remand for new examinations is necessary. 2. Entitlement to service connection for a neck disability. VA obtained opinions concerning the etiology of the claimed neck disability in June 2018. Concerning direct service connection, the examiner stated that it was less likely than not that the Veteran's neck disability was related to his period of service as there was no evidence of treatment for a neck disability in the service treatment records. However, a medical opinion based solely on the absence of documentation in the record is inadequate. Dalton v. Peake, 21 Vet. App. 23 (2007). Further, an April 2012 private treatment records reflects that the Veteran reported neck and low back pain due to heavy lifting and participating in sports during service. The examiner did not address these possible in-service injuries in the opinion. As such, a remand is warranted for an addendum opinion concerning direct service connection. 3. Entitlement to service connection for a bilateral hip disability. VA obtained an opinion concerning the Veteran's bilateral hip disability in June 2018. The examiner stated that the hip disabilities were less likely than not caused or aggravated by the Veteran's service connected disabilities, and instead were consistent with the natural aging process. However, the examiner failed to address a medical article submitted in March 2017 discussing the effects of an altered gait due to a disability of one lower extremity on the opposite extremity. To this end, the Veteran has consistently stated that his hip disabilities are due to his antalgic gait caused by his right ankle disability. As such, the Board finds that a remand is necessary for an addendum opinion concerning secondary service connection. 4. Entitlement to service connection for asthma. VA obtained an opinion concerning the etiology of the Veteran's asthma in June 2018. However, following the issuance of that opinion, the Veteran was grated service connection for sleep apnea in a rating decision issued in October 2018. Since that date, the Veteran has alternatively asserted that he has a respiratory disability that is caused or aggravated by his sleep apnea. As the June 2018 examiner was unable to consider the now service-connected sleep apnea as part of the opinion, a remand for an addendum opinion concerning secondary service connection is warranted. 5. Entitlement to a TDIU. Concerning entitlement to a TDIU, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning entitlement to a TDIU. As such, it is inextricably intertwined with the claims being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his low back disability. The examiner is asked to provide the following: (a) Test for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (b) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms. Based on this information, the examiner should then provide an estimate concerning the average additional loss of motion during a flare-up. (c) Identify and evaluate the severity of all neurologic abnormalities or bowel or bladder impairments associated with the low back disability. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his right ankle disability. The examiner is asked to provide the following: (a) Test for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (b) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms. Based on this information, the examiner should then provide an estimate concerning the average additional loss of motion during a flare-up. 3. Obtain an addendum opinion concerning the etiology of the claimed neck disability. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the claimed neck disability is causally related to the Veteran's active service, to include heavy lifting or his participation in sports? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Obtain an addendum opinion concerning the etiology of the Veteran's bilateral hip disability. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the left or right hip disability was caused by a service-connected disability? b) If not, is it at least as likely as not (a fifty percent probability or greater) that the left or right hip disability was aggravated (worsened) by a service-connected disability? Attention is invited to the Veteran's arguments that his antalgic gait due to his right ankle disability caused his bilateral hip disabilities, and an article discussing the effects of an altered gait due to disability on the opposite extremity (labelled "Web / HTML Documents" uploaded 3/1/17). c) If not, is it at least as likely as not (a fifty percent probability or greater) that the left or right hip disability is otherwise causally related to the Veteran's active service, to include heavy lifting or participation in sports? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 5. Obtain an addendum opinion concerning the etiology of the claimed asthma. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the left or right hip disability was caused by a service-connected disability? b) If not, is it at least as likely as not (a fifty percent probability or greater) that the left or right hip disability was aggravated (worsened) by a service-connected disability? In answering (a) and (b), attention is invited to the Veteran's assertions that he has a respiratory disability due to his nasal fracture and his sleep apnea. c) If not, is it at least as likely as not (a fifty percent probability or greater) that the asthma is causally related to the Veteran's active service? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.