Citation Nr: 21064764 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-48 895 DATE: October 21, 2021 ORDER The appeal for entitlement to service connection for depressive disorder is dismissed. Prior to November 27, 2017, a 30 percent rating, but no higher, is granted for plantar fasciitis with bilateral flat feet. A rating in excess of 30 percent for plantar fasciitis with bilateral flat feet is denied. REMANDED Entitlement to service connection for fibromyalgia, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. A July 2021 rating decision granted service connection for depressive disorder. 2. During the appeal period, plantar fasciitis with bilateral flat feet was manifested by objective evidence of pain on manipulation and use accentuated and indication of swelling on use. He did not have pronounced flatfoot with findings such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. As there remains no case in controversy, the criteria for dismissal of the appeal for entitlement to service connection for depressive disorder are met. 38 U.S.C. § 7105. 2. Prior to November 27, 2017, the criteria for a 30 percent rating, but no higher, for plantar fasciitis with bilateral flat feet, are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (DC's) 5269, 5276. 3. The criteria for a rating higher than 30 percent for plantar fasciitis with bilateral flat feet have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5269, 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1993 to January 1997. This matter comes before the Board of Veterans' Appeals on appeal from October 2014 and January 2016 rating decisions. The Veteran failed to appear for a Board hearing scheduled in October 2019. The Veteran has not requested that the hearing be rescheduled or provided good cause. Therefore, the Board considers the hearing request withdrawn. See 38 C.F.R. § 20.704 (d). 1. Dismissal of appeal for service connection for depression The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A July 2021 rating decision granted service connection for depression. The Board does not have jurisdiction to address a claim of entitlement to service connection for depression, as the claim has been granted in full. Thus, as there remain no allegations of errors of fact or law for appellate consideration, the claim must be dismissed. 38 U.S.C. § 7105. 2. Increased rating for plantar fasciitis with bilateral flat feet Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for the disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2008). In other cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). During the pendency of the appeal, the criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 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 C.F.R. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 C.F.R. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Bilateral plantar fasciitis, postoperative right foot, is currently rated under Diagnostic Code (DC) 5276. DC 5276, pertaining to pes planus, was not revised. DC 5276 provides that a 10 percent rating is warranted for moderate flatfoot; weight-bearing line over or medial to the great toe, inward bowing of the tendon Achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating is warranted for severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, whether unilateral or bilateral. A 50 percent rating is warranted for pronounced flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The rating criteria in effect from February 7, 2021, added DC 5269 for plantar fasciitis. Under those criteria, a 30 percent rating is assignable for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A 20 percent rating is assignable for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Otherwise, a 10 percent rating is assignable for plantar fasciitis, whether bilateral or unilateral. Note (1) following DC 5269 provides that with actual loss of use of the foot, a 40 percent rating is warranted. Note (2) following DC 5269 provides that if a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable. The current claim for an increased rating for pes planus was received in November 2015. A January 2016 rating decision granted a temporary total evaluation for surgical treatment necessitating convalescence from November 13, 2015 to January 1, 2016. A 10 percent rating was continued from January 1, 2016. A March 2015 VA treatment record noted tender plantar fascia, left greater than right. There was no swelling. VA treatment records dated in July 2015 reflect that the Veteran reported right heel pain for several months. He was diagnosed with pes planus and right plantar fasciitis. VA treatment records dated in September 2015 show that the Veteran presented with complaints of right heel pain, which had been present for a while. He reported that he did not have relief with orthotics. He was diagnosed with plantar fasciitis of the right foot. In November 2015, the Veteran underwent plantar fascia release surgery on his right foot. VA treatment records dated in February 2016 noted right foot pain secondary to plantar fascia release. The Veteran had a VA examination in February 2017. The Veteran complained of foot pain and flare-ups. The symptoms included sharp pain when weightbearing and a constant dull ache in both feet. He reported that his surgery two years earlier provided some relief but did not resolve his issue completely. The Veteran reported that he had occasional increases of baseline pain and tried to stay off of his feet. He had limitations with prolonged running, walking, and standing. On physical examination, pain was accentuated on use. The Veteran did not have pain on manipulation of the feet. There was swelling on use of both feet. He had characteristic calluses on his left foot. The examination indicated that the Veteran had tried orthotics for both feet, but he remained symptomatic. He also tried arch supports and built up shoes. The Veteran had extreme tenderness of the right foot. The tenderness was improved by orthopedic shoes or appliances. There was no objective evidence of marked deformity of one or both feet. Marked pronation was not shown. He did not have inward bowing of the Achilles tendon or marked inward displacement of the Achilles tendon (rigid hindfoot) on manipulation of one or both feet. The examination showed that the weight-bearing line fell over or medial to the great toe for both feet. The examination noted that his other foot conditions included plantar fasciitis, bilateral feet, post-operative right foot. The severity was moderate. The examiner noted that the condition chronically compromises weight bearing and requires arch supports or custom orthotic insert modifications. On review, the Board finds that a 30 percent rating is warranted for bilateral pes planus from January 1, 2016. The November 2017 rating decision assigned a 30 percent rating based on evidence showing characteristic callosities, indication of swelling on use, and pain on use of the feet, accentuated. The evidence reflects that the Veteran has had pain on use of the feet, accentuated, throughout the appeal period. He also had swelling of his right foot during the rating period, as the November 2017 examination shows that he had swelling of his right foot in the area of the scar since his surgery. The Board finds that the criteria for a 30 percent rating are met from the date of the claim. The Veteran does not have all of the symptoms listed under the criteria for a 30 percent rating. The Board notes that the conjunctive form is not specifically employed in the enumeration of rating criteria under DC 5276; therefore, it is not required that all the manifestations that are listed be shown. Camacho v. Nicholson, 21. Vet. App. 360, 366 (2007); see also Dyess v. Derwinski, 1 Vet. App. 448 (1991) (holding that 38 C.F.R. § 4.21 specifically applies to Diagnostic Code 5276). However, the Board finds that the criteria for a 50 percent rating have not been met. The evidence does not show pronounced flatfoot with findings such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The evidence shows that the Veteran has tenderness of the feet, which is improved by orthotic appliances. The record shows no findings of marked pronation, marked inward displacement, and severe spasm of the tendo achillis on manipulation. Therefore, the evidence does not approximate the criteria for a 50 percent rating. Additionally, the Board finds that a rating in excess of 30 percent for plantar fasciitis under the revised Schedule for Ratings for the Musculoskeletal System is not warranted. In order to warrant a 40 percent rating, the Veteran's plantar fasciitis would have to be manifested by actual loss of use of the foot. Although the Veteran has limitation with walking and standing, the evidence does not show findings of actual loss of use of either foot. Accordingly, a rating in excess of 30 percent is not warranted for the Veteran's bilateral plantar fasciitis under the 2021 revised Schedule of Ratings for the Musculoskeletal System. REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia is remanded. The Veteran contends that fibromyalgia initially manifested during service. Alternatively, he contends that fibromyalgia is secondary his to obstructive sleep apnea. See November 2013 Statement. In a November 2018 correspondence, he contended that fibromyalgia is related to his service-connected migraine headaches. VA treatment records dated in December 2017 reflect that the Veteran has a current disability of fibromyalgia. A December 2014 VA treatment record shows that a rheumatologist noted a history consistent with fibromyalgia, given multiple tender points but no evidence of joint synovitis or muscle weakness. The record notes that "FM also more associated with depressive disorder." The December 2014 treatment record indicates a positive relationship between depression and fibromyalgia. In a January 2015 opinion, a VA rheumatologist opined that sleep apnea and fibromyalgia "can contribute to fibromyalgia." Therefore, his claim for service connection for fibromyalgia is also intertwined with the claim for service connection for sleep apnea. The Veteran has not been afforded a VA examination for fibromyalgia. Given the evidence of a possible link between service-connected depression and fibromyalgia, a VA medical opinion is necessary. 2. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that obstructive sleep apnea is related to his sinus infections during active service, or to a nose injury in service. In a November 2013 statement, the Veteran noted that he was diagnosed with sleep apnea after he had surgery for a deviated septum. He stated that he was hit with a rifle scope during service. In his September 2017 substantive appeal, the Veteran noted that he had a nasal injury when he was aboard the USS Boston. He indicated that he was hit in the face with a rifle and had constant nose bleeds as a result. While service treatment records do not document complaints of being hit in the face with a rifle, the Veteran is competent to report such an injury, and the Board finds him credible. A March 1996 entry in the service treatment records reflects a diagnosis of an upper respiratory infection with acute bronchitis. In March 1996, the Veteran reported increased frequency of nose bleeds. He was diagnosed with epistaxis, presently controlled. Post service VA treatment records note a history of surgery in 2000 for upper airway obstruction. VA medical records indicate that the Veteran reported that a sleep study in 2001 showed sleep apnea. A July 2013 VA treatment record reflects that a recent sleep study showed sleep apnea. A January 2015 medical opinion from a VA physician noted that sleep apnea and depression "can contribute to fibromyalgia symptoms." In a May 2021 statement, the Veteran asserted that his service-connected foot disabilities caused him severe gain weight during service and afterwards. The Board acknowledges that, while obesity is not a disability that qualifies for service connection and does not qualify as an in-service event to warrant service connection for another disability, it can act as an intermediate step to establish service connection for another disability (such as sleep apnea) as secondary to an already service-connected disability under certain circumstances. The Veteran should be afforded an examination and a medical opinion should be obtained with respect to his sleep apnea claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his fibromyalgia. The examiner must review the claims file and address the following questions: (a) The examiner should provide an opinion as to whether fibromyalgia is at least as likely as not related to service. Provide a rationale for the opinion. (b) The examiner should provide an opinion as to whether fibromyalgia is proximately due to or caused by the service-connected depression. Provide a rationale for the opinion. (c) The examiner should provide an opinion as to whether fibromyalgia is aggravated beyond its natural progression by service-connected depression. Provide a rationale for the opinion. 2. Schedule the Veteran for a VA examination for his obstructive sleep apnea. The examiner must review the claims file. The examiner should address the following questions: (a) The examiner must provide an opinion as to whether obstructive sleep apnea is at least as likely as not related to any event in service, including his diagnoses of bronchitis and epistaxis during service. The examiner must consider the Veteran's statement that he was hit in the face with a rifle in service. For the purposes of the opinion, his report of being hit with a rifle should be considered credible. Provide a rationale for the opinion. (b) The examiner must provide an opinion as to whether sleep apnea is proximately due to or caused by the service-connected depression. Provide a rationale for the opinion. (c) The examiner must provide an opinion as to whether sleep apnea is aggravated beyond its natural progression by service-connected depression. Provide a rationale for the opinion. (d) The examiner should discuss whether the Veteran's obesity is an "intermediate step" between his service-connected foot disabilities and his current sleep apnea. To clarify, obesity would be an intermediate step in establishing secondary service connection for sleep apnea if: 1) the Veteran's service-connected disabilities caused or aggravated his obesity; 2) obesity was a "substantial factor" in the development of sleep apnea; and 3) sleep apnea would not have occurred but for the obesity caused by the service-connected disabilities. The VA examiner should also address these questions. A complete rationale for the examiner's opinions should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.