Citation Nr: 21063267 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-47 278 DATE: October 13, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. Entitlement a rating in excess of 10 percent for service-connected right ankle disability is denied. REMANDED Entitlement to a compensable rating for service-connected right little finger DIP joint dislocation with deformity is remanded. FINDINGS OF FACT 1. The Veteran's preexisting bilateral pes planus was not aggravated during active service. 2. The Veteran's right ankle disability manifested with moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.304, 3.306 (2019). 2. The criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Marine Corps from July 1996 to July 2000. This case comes before the Board on appeal of rating decisions from January 2015 and July 2015. This case was previously before the Board in March 2020. The Board denied a compensable rating for the Veteran's right little finger disability and remanded all other claims. However, the Veteran appealed the Board's decision to the Court of Veterans Claims (CAVC). In March 2021, the CAVC granted a joint motion for partial remand (JMPR), which vacated and remanded the right little finger claim back to the Board consistent with the JMPR. The Board notes that the Veteran's service connection claims for a right knee strain and lumbar spine disability were granted in an August 2020 and September 2020 rating decision. Therefore, as the service connection claims have been granted, they are resolved and no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Service Connection A veteran is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). If a preexisting disability is noted upon entry into service, service connection may still be granted based on in-service aggravation of that disability. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Of note, absent any evidence showing that the preservice disability underwent at least some increase in its severity during service, an inquiry will stop, and service connection based on aggravation will be denied. See 38 C.F.R. § 3.306 (b). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). 1. Entitlement to service connection for bilateral pes planus Here, the Veteran contends that his bilateral pes planus was aggravated during active service. Based on a preponderance of evidence, the Board disagrees. At the outset, the Veteran's bilateral pes planus was noted on entry into service. Specifically, in the April 1996 entrance examination, the treating physician indicated that the Veteran had moderate but asymptomatic pes planus. However, the Veteran contends that he did not have flat feet prior to entering service, but that the long marches and training in boots caused his flat feet. See Hearing testimony. Although the Board acknowledges the Veteran's testimony, he underwent a clinical evaluation on entrance to service which showed he had moderate asymptomatic pes planus. Because this condition was noted during the Veteran's military enlistment examination, he cannot bring a claim for service connection for this condition on the premise it was directly or even presumptively incurred during his service; instead, only a claim predicated on the alternative notion that his service aggravated this condition, meaning worsened it beyond its natural progression. In this circumstance 38 U.S.C. § 1153 applies and the burden falls on the Veteran, not VA, to establish aggravation of this pre-existing disability by his service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010), citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994)). In that regard, the Veteran testified that he endured bilateral foot pain during service after long marches and training. He testified that he reported to sick call for concerns about his feet and he was informed that he had flat feet. The Veteran added that during his visit to sick call, he informed the examiner that he had pain in the arch area of his feet. See Hearing testimony. However, the Veteran's service treatment records (STRs) are silent for any complaints or treatment of bilateral pes planus or even foot pain. During service, the Veteran presented with and was treated for various conditions including an upper respiratory infection, stomach cramps, a right ankle injury, and a ring finger injury among other issues. Yet, there was no indication of bilateral foot pain at any point during active service. Moreover, the Veteran marked "no" to foot trouble on his report of medical history and his feet were indicated to be "normal" on the separation examination. In fact, the Veteran did not report any foot condition on his report of medical assessment in May 2000. Additionally, the Veteran indicated that there was no illness or injury he suffered during service in which he did not seek medical care. See STRs. Thus, if he had bilateral foot pain during service, there would be record of his complaint(s) and/or treatment in his STRs. Importantly, a visit to sick call for bilateral foot pain, treatment, as well as a diagnosis or finding of symptomatic bilateral pes planus by a medical professional, are the kind of events that ordinarily would have been recorded in the Veteran's STRs. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). However, the STRs are silent regarding complaints or treatment of any foot condition. In regard to symptoms of his bilateral pes planus, in the July 2015 VA examination the Veteran reported ongoing problems with flat feet since being in service. It was noted that there was no treatment in service and about five months prior to the examination he required inserts for his shoes due to pain. At the time of the examination, the Veteran reported pain in the middle of the foot (arch) and on the bottom which radiated to his heel area. The Veteran reported that the pain in his foot comes and goes, but his right foot flares up if his right ankle disability flares up. Then, in the July 2020 VA examination, the Veteran stated he was noted to have flat feet during his enlistment examination. He stated that it was congenital but aggravated by all the activities while he was in the military including wearing boots and marching. During the examination, he reported bilateral foot swelling, including the top side of the foot and back side of the heel. Intermittent, sharp, and throbbing pain rated at a 5 out of 10 at its best, and 8 out of 10 at its worst, depending on activity. X-ray results from October 2016 showed small right retrocalcaneal enthesophyte and status post ORIF of the medial malleolus on the left. Likewise, the physician diagnosed the Veteran with right foot plantar fasciitis. The Veteran reported flare-ups were caused by walking and prolonged standing. The physician of the July 2020 VA examination opined that the Veteran's bilateral pes planus which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury or event. The physician reasoned that the medical examination of April 1996 (entrance exam) revealed moderate but asymptomatic pes planus. Then, in the July 2015 VA examination, the Veteran complained of pain in the middle (arch) and in the bottom of his foot. The Veteran required shoe inserts five months prior to that July 2015 visit. The physician explained that there were no records to support the aggravation of the bilateral pes planus during service. The physician also opined that the Veteran's right calcaneal spur and plantar fasciitis were less likely than not incurred in or caused by active service. The physician explained that the medical examination from April 1996 revealed moderate and asymptomatic pes planus. The report of medical examination dated May 2000 revealed a normal finding in both feet. Then, a right foot x-ray from December 2016 revealed small right retrocalcaneal enthesophyte. The physician explained that his evaluation from July 2020 revealed bilateral decreased longitudinal arch and tenderness in the plantar area of the right foot. He explained that there were no records to support right calcaneal spur and plantar fasciitis from July 1996 to July 2000. The physician noted that the bilateral foot conditions were noted outside of the Veteran's service period dates, thus the Veteran's right calcaneal spur, right plantar fasciitis, and bilateral pes planus are less likely than not incurred during service. The Board finds this opinion to be competent, credible, and highly probative. The physician reviewed the pertinent evidence including the Veteran's STRs, accounted for his lay statements, examined the Veteran, then provided an opinion based on the evidence. Additionally, as discussed above, the Veteran's assertions that he went to sick call for foot problems are not supported by the contemporaneous STRs, which weighs against his lay evidence and lessens its probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, while the Veteran believes that his pes planus was aggravated by service, this a complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. As a lay person, the Veteran has not established the competence needed to rebut the expert medical opinion of record. As such, the Veteran's opinion is not adequate to rebut the physician's opinion as to the nature and etiology of the claimed condition. The evidence shows that the bilateral pes planus pre-existed service and that it did not increase in severity during service; thus, it was not aggravated. Accordingly, the preponderance of the evidence shows that the Veteran's preexisting pes planus was not aggravated during service and that he does not have a right or left foot disorder that had its onset during active service or within one year of discharge from service or that is causally or etiologically related to any disease, injury, or incident during service. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for a bilateral foot disorder is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). As in the instant case, separate ratings for distinct periods of time, based on the facts may be for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). 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 an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). As in the instant case, separate ratings for distinct periods of time, based on the facts may be for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2019). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When 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; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement a rating in excess of 10 percent for service-connected right ankle disability Here, the Veteran contends that his right ankle disability warrants a rating in excess of 10 percent disabling. Based on evidence, the Board disagrees. At the outset, the Veteran is in receipt of a 10 percent rating for a right ankle disability under DC 5271. Prior to February 7, 2021, under DC 5271, a 10 percent rating was warranted for moderate limited motion of use of the ankle and a 20 percent rating was warranted for marked limited motion of use. Prior to February 7, 2021, the words "moderate" and "marked" were not defined in the VA Rating Schedule. Thus, for the period on appeal prior to February 7, 2021, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. However, VA's Adjudication Procedures Manual provides guidance on the matter. Specifically, the manual states that an example of moderate limitation of ankle motion is when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while an example of marked limitation of ankle motion is when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VA Adjudication Procedures Manual, M21-1, III.iv.4.A.6.m (April 13, 2018). Although the Board is not bound by the VA Adjudication Manual, it provides useful guidance. See DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals."). Effective February 7, 2021, under DC 5271, a 10 percent rating is warranted for moderate limitation of motion of the ankle, which is defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A 20 percent rating is warranted for marked limitation of motion of the ankle, which is defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the Board finds that both the old and new criteria under DC 5271 are fundamentally identical, given that the guidance of VA's Adjudication Procedures Manual was adopted as explicit rating criteria in February 2021. In a June 2015 treatment record, the Veteran complained of pain in his right ankle described as a 5 out of 10. The Veteran presented with tenderness to palpation in his medial and lateral gutters, mid-longitudinal arch, and achilles insertion. The radiograph of his ankle was unremarkable. On examination, the Veteran's right ankle range of motion (ROM) was limited by 75 percent in all planes due to pain. There was pain in all ankle movement. Valgus and varus tests bilaterally were negative. The Veteran's gait was within normal limits. In the July 2015 VA examination, the Veteran reported the ankle had been giving out on him, felt weaker. He soaked his ankle daily and took pain medication when his ankle flared up. He also reported swelling that comes and goes depending on activity. During a flare-up, the Veteran had pain which caused him to limp. On examination, the Veteran's right ankle manifested with dorsiflexion to 10 degrees and plantar flexion to 10 degrees. The examiner felt that the Veteran gave suboptimal effort on ROM testing. The examiner indicated that there was objective evidence of pain that caused functional loss. Likewise, there was medial ankle tenderness. There was evidence of pain with weight bearing but no objective evidence of crepitus. The Veteran was able to perform repetitive use testing. ROM after three repetitions was dorsiflexion to 5 degrees and plantar flexion to 5 degrees. The examiner did not provide an estimation of ROM during flare-ups. There was no evidence of ankylosis. Ankle instability or dislocation was not suspected. The Veteran reported the regular use a cane for pain in his ankle, knee, and back. There were no diagnostic tests taken to confirm arthritis. Prior to the July 2020, treatment records showed that the Veteran complained about right ankle pain. In the July 2020 VA examination, the Veteran reported bilateral ankle swelling, including the top side of the foot and the back side of the heel. Intermittent ankle pain rated at 5 out of 10 as its best and 8 out of 10 at its worst depending on activity. He reported sharp and throbbing pain, right worse than left. The Veteran reported flare-ups of his ankle that was triggered when walking and standing for long periods. Likewise, the Veteran stated that he had difficulty with walking, standing for long periods of time. On examination, the Veteran's right ankle manifested with dorsiflexion to 10 degrees and plantar flexion to 23 degrees. There was pain noted on examination but did not result in or cause functional loss. He exhibited pain in both ROMs. There was evidence of objective evidence of localized tenderness or pain on palpation of the joint. There was evidence of pain with weight bearing but no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing without loss of ROM. There was no evidence of reduction in muscle strength in plantar flexion or dorsiflexion. There was no evidence of muscle atrophy. Likewise, there was no evidence of ankylosis. Moreover, there was no ankle instability or dislocation suspected. The Veteran used a regular brace for locomotion. There were no diagnostic tests to confirm arthritis. There was objective evidence of pain in non-weight bearing, the passive ROM was the same as active ROM. The physician provided an addendum to his examination report. The physician reported that on flare-up the Veteran had dorsiflexion to 10 degrees and plantar flexion to 23 degrees. Based on the foregoing, the Veteran's right ankle disability most closely approximated moderate limitation of motion. The Veteran routinely had dorsiflexion that was l5 degrees or less but no less than 5 degrees and plantar flexion less than 30 degrees but not less than 10 degrees. The Board notes that repetitive-use testing from July 2015, resulted in plantar flexion to 5 degrees, but a month prior to the examination the Veteran had plantar flexion to 11 degrees. Likewise, there was no other evidence that showed plantar flexion less than 10 degrees after the July 2015 VA examination. In fact, the most recent examination from July 2020 revealed that the Veteran's right ankle had plantar flexion to 23 degrees. Therefore, a higher evaluation of 20 percent disabling for marked limitation of motion is not warranted. 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). Entitlement to a compensable rating for service-connected right little finger DIP joint dislocation with deformity is remanded. Here, the Veteran was last afforded a VA examination in October 2018. Generally, a stale examination is not enough to require a remand for a new examination; however, the Veteran reported pain and a tingling sensation traveling from his right hand down to his forearm and inner wrist. See November 2019 Hearing testimony. Importantly, these symptoms were not noted in the October 2018 VA examination. VA's duty to assist includes providing a new medical examination when a veteran assert's or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, a more contemporaneous VA examination is required to provide a current picture of the Veteran's right little finger disability at issue on appeal. 38 C.F.R §§ 3.326, 3.327 (2019). Lastly, the Veteran asserts that he received treatment for his finger disability during November 2018. However, VA treatments records jump from October 2018 to December 2018. On remand, all treatments records from November 2018 should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records specifically records from November 2018. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to determine the current severity of his right finger disability. The VA examiner must review the complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. 3. Thereafter, readjudicate the claim on appeal. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umo, 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.