Citation Nr: 21066914 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-32 742 DATE: November 2, 2021 ORDER A rating of 30 percent, but no higher, for bilateral pes planus with plantar fasciitis for the period prior to May 20, 2021, is granted. A rating in excess of 50 percent for bilateral pes planus with plantar fasciitis from May 20, 2021, is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected type 2 diabetes mellitus and peripheral neuropathy is remanded. Entitlement to service connection for nonmelanoma skin cancer, to include as due to exposure to herbicide agents is remanded. FINDINGS OF FACT 1. Prior to May 20, 2021, the Veteran's bilateral pes planus with plantar fasciitis more nearly approximated severe symptoms of disability analogous to objective evidence of marked deformity, pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. 2. Since May 20, 2021, the Veteran's bilateral pes planus with plantar fasciitis has been assigned the maximum schedular rating allowed for disabilities of the feet. CONCLUSIONS OF LAW 1. Prior to May 20, 2021, the criteria for entitlement to a rating of 30 percent, but no higher have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2020). 2. Since May 20, 2021, the Veteran's bilateral pes planus with plantar fasciitis has been assigned the maximum schedular rating allowed for disabilities of the feet. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1966 to November 1969, including service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (the Board) on appeal from November 2011, November 2013, and July 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified before a Veterans Law Judge (VLJ) at a video conference hearing. However, due to technical difficulties, the hearing did not record properly, and a written transcript of the proceeding could not be made. Consequently, the Veteran opted to have a second hearing via video conference. In August 2018, the Veteran testified before the undersigned VLJ at a videoconference hearing. A transcript of the hearing is of record. The Board remanded these matters in September 2020 and most recently in April 2021, for additional development. While in remand status, the RO issued a June 2021 rating decision granting a higher rating of 50 percent for bilateral pes planus with bilateral plantar fasciitis, effective from May 20, 2021. As the Veteran continues to appeal for a higher rating, the issue has been recharacterized accordingly to reflect the staged ratings. AB v. Brown, 6 Vet. App. 35 (1993) (a claimant is presumed to be seeking the maximum rating allowed by law). These matters are back before the Board for appellate consideration. Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38C.F.R. §3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 1. Entitlement to a rating in excess of 10 percent prior to May 20, 2021 and in excess of 50 percent thereafter for bilateral pes planus with plantar fasciitis The Veteran seeks an increased rating for his service-connected bilateral pes planus and plantar fasciitis which he contends is worse than contemplated by his currently-assigned disability ratings. The Veteran additionally argues that he should be awarded separate ratings for pes planus and plantar fasciitis as they are wholly distinct disabilities with different symptomatology. Prior to May 20, 2021, the Veteran's feet were rated at 10 percent disabling under Diagnostic Code 5276. From May 20, 2021, the Veteran's feet are rated as 50 percent disabling for bilateral pes planus and bilateral plantar fasciitis, which is the maximum rating under DC 5276. 38 C.F.R. § 4.71a. The Veteran contends that his symptoms throughout the period on appeal are severe in nature; consistent with a 30 percent rating. The Veteran also believes that separate ratings for his bilateral pes planus and bilateral plantar fasciitis are warranted. See August 2021 Informal Hearing Presentation. Prior to May 20, 2021 The Veteran underwent a VA examination in November 2013. The Veteran reported increased pain in his feet to bilateral arches and heels with prolonged walking. The Veteran described the pain as sharp, intermittent pain. Pain in the heels was new, while arch pain is chronic. He was fitted for custom orthotics which have somewhat improved pain. He also reported wearing braces for plantar fasciitis but noted them as bulky and as such that he only wears them at night. Feet pain was worse in the morning upon walking but then starts to improve with movement. Average pain was rated as 3-4/10, and 8/10 during flareups. Flares occur approximately 3-4 times per month causing more pain and aggravation. The Veteran did not take medication or seek medical care during flares. On examination, the examiner noted objective evidence of bilateral marked pronation. There was no pain on manipulation, no indication of swelling on use, and no characteristic calluses. In January 2014, the Veteran submitted a private opinion from his treating provider, Dr. J.B., a VA podiatrist. Dr. J.B. noted that it is a well-documented fact that plantar fasciitis is commonly caused by pes planus and discussed general symptoms among patients with pes planus, noting that pes planus is the prime contributor to symptomatic plantar fasciitis. Therefore, Dr. J.B. opined that in his opinion the Veteran's pes planus most likely and directly contributed to the development of his chronic plantar fasciitis and should therefore be service-connected due to the "clear nexus [he] provided." A November 2015 VA treatment note reflects the Veteran's reports of bilateral foot pain and lower extremity swelling and cramping. The Veteran admitted to experiencing cramping in arches and legs at night with extended periods of activity. The Veteran reported pain in both heels and arches. His provider noted no pain on compression to medial and lateral calcaneus. See November 2015 VA Podiatry Consult. A December 2016 VA treatment note reflects the Veteran's reports of right heel pain, with the Veteran reporting pain had been present for several months pointing to the arch and plantar heel. The Veteran's provider noted objective evidence of pain to palpation of plantar medial calcaneal tubercle & medial band of plantar fascia, right. No pain on palpation to Achilles tendon, watershed, or insertion. See December 2016 VA Podiatry Outpatient Note. A February 2017 VA treatment note indicates that the Veteran continues with pinpoint tenderness to the plantar surface. See February 2017 VA Addendum Note. At his August 2018 Board hearing, the Veteran testified that he experiences fatigue and swelling in both feet. With sustained use or stress by walking a distance, his feet will swell and turn red at night. His feet symptoms have become increasingly worse over the years. The Veteran recalled a period of flare-up of his plantar fasciitis that resulted in him going to physical therapy for a 3-4 month period. Physical therapy helped, but he noted that it subsides and comes back. See August 2018 Board Hearing Transcript. In light of the Veteran's testimony of worsening symptoms, the Board remanded the claim in September 2020. Accordingly, the Veteran underwent a VA foot conditions examination in November 2020. The examiner did not attempt to differentiate which of the Veteran's symptoms are attributed to his pes planus versus his plantar fasciitis, as requested by the Board in the examination directives. The Veteran disputed the accuracy of the November 2020 examination, which he predominately attributed to a significant language barrier between himself and the VA examiner. See January 2021 lay statement. Thereafter in April 2021, the Board remanded the claim to obtain an adequate VA examination to assess the current severity of the Veteran's foot conditions. The Veteran underwent a new VA examination in May 20, 2021 which resulted in a 50 percent rating. Based on the foregoing, the Board finds the evidence shows that prior to May 20, 20, 2021, the Veteran's bilateral pes planus with plantar fasciitis predominantly manifested by symptoms of severe disability, including tenderness of the plantar surfaces, accentuated bilateral foot pain on manipulation and use, and functional impairment including difficulty walking and standing. As such, the Board finds that the Veteran's overall disability picture due to bilateral pes planus with plantar fasciitis more nearly approximated the criteria for a 30 percent rating prior to May 20, 2021. From May 20, 2021 From May 20, 2021, the Veteran is in receipt of a 50 percent rating for his bilateral pes planus with plantar fasciitis under DC 5276, which constitutes the maximum schedular rating under that diagnostic code. A schedular rating in excess of 50 percent is not available under any other DC as that is the highest scheduler rating available for disabilities of the feet. See 38 C.F.R. § 4.71a. As the Veteran is in receipt of the maximum schedular rating, the Board finds that there is no legal basis upon which to award a higher rating for bilateral pes planus with plantar fasciitis from May 20, 2021. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). During the claim periods, the Board observes that the Veteran's bilateral pes planus is rated at 30 percent (with the grant above) and the maximum 50 percent under DC 5276. If the Board were to assign a separate rating under DC 5269 for plantar fasciitis, it would constitute pyramiding. That is, the symptoms of the service-connected pes planus and plantar fasciitis overlap under Diagnostic Codes 5276 and 5269. The manifestations of bilateral pes planus and plantar fasciitis are not shown to be separate and distinct in this case. Evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14 . A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14 . Thus, a separate, additional evaluation for plantar fasciitis is not warranted under DC 5269. Finally, the Board notes that in May 2021 the Veteran submitted correspondence indicating his belief that the most recent April 2021 Board remand was not complied with regarding this claim. Specifically, the Veteran states that the remand directives requested a VA physician of appropriate expertise (i.e. podiatrist) and that a nurse practitioner conducted his examination. Upon review of the May 2021 examination report, the Board finds that the VA examiner conducted a complete examination and provided the relevant and objective evidence necessary to evaluate the Veteran's disability. The Board notes that there is a presumption of regularity that government officials, including VA medical examiners, have properly discharged their official duties. Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009). Clear evidence to the contrary is required to rebut the presumption of regularity. In reviewing the May 2021 examination report, the Board finds no clear evidence that the VA examiner did not conduct the examination in an appropriate manner or that the results are not accurate for rating the Veteran's foot disabilities. Thus, in the absence of clear evidence to the contrary, the Veteran's unsupported contention is insufficient to render the examination inadequate. Accordingly, the Board finds that entitlement to a rating in excess of 50 percent for bilateral pes planus with plantar fasciitis from May 20, 2021 is not warranted. REASONS FOR REMAND Unfortunately, the remaining claims on appeal must be remanded once again as the Board is not satisfied that there was substantial compliance with its most recent remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11V et. App.268, 271 (1998). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected type 2 diabetes mellitus and peripheral neuropathy, is remanded. The Veteran contends that his obstructive sleep apnea was caused or aggravated by his service-connected type 2 diabetes mellitus and associated peripheral neuropathy. More specifically, he asserts that weight gain stemming from the treatment of these service-connected disabilities led to the worsening of his sleep apnea. In the April 2021 remand, the Board directed the RO to obtain a medical opinion from a VA examiner that adequately addresses the nature and etiology of the Veteran's sleep apnea, to include his contention that his sleep apnea may have been caused or aggravated by his service-connected type 2 diabetes mellitus and/or peripheral neuropathy, to include weight gain caused by prescription medication he takes to treat these diseases. The examiner was also instructed to specifically consider and address an April 2011 VA Primary Care Nursing Note, as well as medical literature submitted by the Veteran. Pursuant to these instructions, the RO obtained an addendum opinion in May 2021. While the examiner acknowledged a review of medical literature submitted by the Veteran, he concluded that none of the articles supported causation of sleep apnea. However, the examiner did not discuss whether these articles supported aggravation. Moreover, the examiner did not address the April 2011 VA Primary Care Nursing Note stating that the Veteran has a history of sleep apnea which he states "has come back since he has been diagnosed with [diabetes mellitus]." In light of the above, the Board finds that the record still does not contain a medical opinion that is adequate to allow the Board to fairly adjudicate the Veteran's claim. As such, the claim must be remanded once again because the RO did not comply with the Board's prior remand directives to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, the RO must obtain an addendum medical opinion from a qualified medical professional that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). 2. Entitlement to service connection for nonmelanoma skin cancer, to include as due to exposure to herbicide agents is remanded. The Veteran seeks service connection for nonmelanoma skin cancer, which he contends is due to exposure to herbicide agents and/or excessive sun exposure while serving in Vietnam. In the April 2021 remand, the Board directed the RO to obtain a medical opinion from a qualified VA examiner that adequately addresses the Veteran's contentions with regard to his skin cancer. Pursuant to the remand, the RO obtained an addendum opinion in May 2021. After reviewing the Veteran's claims file, the examiner concluded that there is no credible medical evidence to support a causal link between the Veteran's herbicide exposure and basal cell/squamous cell carcinomas. Regarding sun exposure, the examiner stated that there is an increased risk of developing skin cancer due to cumulative sun exposure. However, she opined that many years of sun exposure is the most likely etiology of the Veteran's skin cancer as opposed to his 3 years of in-service exposure. There is no indication that the examiner considered medical literature submitted by the Veteran, nor his lay statements. In light of the above, the Board finds that the record still does not contain a medical opinion that is adequate to allow the Board to fairly adjudicate the Veteran's claim. As such, the claim must be remanded once again because the RO did not comply with the Board's prior remand directives to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, the RO must obtain an addendum medical opinion from a qualified medical professional that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The Board reminds the VA examiner that the nature and etiology of the Veteran's nonmelanoma skin cancer must be thoroughly addressed in the requested opinion even if the condition is not currently present or is deemed resolved. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, the matters are REMANDED for the following actions, keeping in mind that none of the examiner below should have previously provided opinions on this Veteran: 1. Forward the Veteran's claims file to VA physician(s)of appropriate expertise to determine the nature and etiology of his claimed disabilities of sleep apnea and nonmelanoma skin cancer. In-person VA examinations should not be scheduled unless deemed necessary by the examiner(s)or otherwise required by the evidence. The examiner(s)must review the Veteran's entire claims file, to include a copy of this REMAND and the prior remand, and note the review in the examination report. Thereafter, the respective examiner must provide a fully-articulated medical opinion addressing the following: Sleep Apnea (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is caused by his service-connected type 2 diabetes mellitus and/or peripheral neuropathy, to include weight gain caused by the medications he takes to treat these diseases? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is aggravated by (increased in severity beyond its natural progression) his service-connected type 2 diabetes mellitus and/or peripheral neuropathy, to include weight gain caused by the medications he takes to treat these diseases? If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record or the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide separate responses to questions (a) and (b). The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. In providing the requested opinion, the examiner must specifically consider and address the Veteran's relevant lay statements of record and hearing testimony, as well as the following evidence: i. April 6, 2011 VA Primary Care Nursing Note stating that the Veteran has a history of sleep apnea, which he states "has come back since he has been diagnosed with [diabetes mellitus]"; ii. Foster, Gary D., et al., Obstructive Sleep Apnea Among Obese Patients with Type 2 Diabetes, DIABETES CARE, volume 32, number 6 (June 2009); iii. Young, Wise, Ph.D, M.D., Gabapentin: Neuropathic Pain and Body Weight Gain, online article submitted by the Veteran in May 2011; and iv. Sleep Apnea and Diabetes... a Lethal Combination, online article submitted by the Veteran in May 2011. Nonmelanoma Skin Cancer (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's basal cell and squamous cell carcinomas had their onset during active-duty service or are otherwise related to any in-service disease, event, or injury, to include conceded exposure to herbicide agents and/or excessive sun exposure during service in Vietnam? The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. In providing the requested opinion, the examiner must specifically consider and address the Veteran's relevant lay statements of record and hearing testimony, as well as the following evidence: i. Clemons, Mark W., M.D., et al., Association between Agent Orange Exposure and Nonmelanotic Invasive Skin Cancer: A Pilot Study, PLASTIC AND RECONSTRUCTIVE SURGERY, volume 133, issue 2, pages 432-437 (February 2014). ii. The Veteran's statement that in Vietnam the only sun protection he had was from headgear and clothing; sunscreens had not been invented at the time. Due to the heat, sleeves were rolled up to above elbow almost 100% of the time, exposing arms, and his face and neck were exposed as well. His skin cancers and pre-cancers found to date have all been in these locations. See May 2014 Lay Statement. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.