Citation Nr: 21069134 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 21-00 328 DATE: November 17, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for left foot metatarsalgia is denied. Entitlement to an initial 10 percent rating for right foot hallux valgus/rigidus, right great toe, is granted. Entitlement to an effective date prior to August 31, 2017, for the grant of service connection of left metatarsalgia is denied. Entitlement to an effective date prior to August 31, 2017, for the grant of service connection of right foot plantar fasciitis with metatarsalgia is denied. New and material evidence has been submitted to reopen a claim of service connection of chronic left foot pain; to this limited extent that appeal is granted. Entitlement to service connection of left lower extremity neuropathy is granted. Entitlement to service connection of degenerative spine disease of the low back is denied. Entitlement to service connection of left foot hallux rigidus is granted. Entitlement to service connection of left hammertoe is granted. REMANDED Entitlement to an initial compensable rating for bilateral pes planus is remanded. Entitlement to an effective date prior to August 31, 2017, for the grant of service connection of bilateral pes planus is remanded. Entitlement to an effective date prior to August 31, 2017, for the grant of service connection of right foot hallux valgus/rigidus arthritis, right great toe, is remanded. Entitlement to an initial rating in excess of 10 percent for right foot plantar fasciitis with metatarsalgia is remanded. Entitlement to service connection of degenerative spine disease of the neck is remanded. Entitlement to service connection of left hip osteoarthritis is remanded. Entitlement to service connection of right hip osteoarthritis is remanded. Entitlement to service connection of a left foot disability, claimed a chronic foot pain, and diagnosed as left hallux valgus, is remanded. FINDINGS OF FACT 1. The Veteran has left foot metatarsalgia which is compensated at the maximum allowable schedular rating for that disability; he has not expressed any symptoms which may take his condition beyond the purview of the rating criteria. 2. The Veteran's right foot hallux valgus/rigidus is status-post resection of the metatarsal head (bunionectomy), a surgery which occurred during active service; prior to the bunionectomy there is no evidence of severe symptoms such that it would be equivalent to amputation of the big toe. 3. The Veteran filed a VA Form 21-0966 (Intent to File) on August 31, 2017, with a subsequent December 2017 fully developed claim which included the claimed left metatarsalgia; all prior claims addressing a left foot disability were denied and final without appeal. 4. The Veteran filed a VA Form 21-0966 (Intent to File) on August 31, 2017, with a subsequent December 2017 fully developed claim which included the claimed right metatarsalgia; all prior claims addressing a right foot disability were denied and final without appeal. 5. New and material evidence has been associated with the claims file sufficient to reopen the previously denied and final claim of service connection of chronic left foot pain. 6. Affording the Veteran the benefit of the doubt, his left lower extremity neuropathy had onset during active service with continuity to the present. 7. The Veteran does not have a presently diagnosed low back disability; pain has not been shown to cause functional loss; his low back symptoms are wholly attributable to his service-connected Amyotrophic Lateral Sclerosis. 8. Affording the Veteran the benefit of the doubt, his left hallux rigidus is at least as likely as not caused or aggravated by his service-connected metatarsalgia and in-service bunionectomy. 9. Affording the Veteran the benefit of the doubt, his left foot hammertoe is at least as likely as not caused or aggravated by his service-connected metatarsalgia and in-service bunionectomy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left metatarsalgia have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (DC) 5279. 2. The criteria for a rating of 10 percent for right foot hallux valgus/rigidus have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DCs 5280, 5281. 3. The criteria for an effective date prior to August 31, 2017, for the grant of service connection of left foot metatarsalgia, have not been met. 38 C.F.R. § 4.27. 4. The criteria for an effective date prior to August 31, 2017, for the grant of service connection of right foot plantar fasciitis with metatarsalgia, have not been met. 38 C.F.R. § 4.27. 5. New and material evidence has been received to reopen the previously denied and final claim of service connection for chronic left foot pain. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. 6. The criteria for entitlement to service connection for left lower extremity neuropathy are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for entitlement to service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for service connection for left foot hallux rigidus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 9. The criteria for service connection for left foot hammertoe are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). It is noted that in the notice of disagreement, filed in July 2019, the Veteran also appealed the issues of service connection for right hammer toe and right lower extremity neuropathy. Those claims were subsequently granted and are no longer part of this appeal. Also appealed at that time were claims of service connection of diabetes mellitus, obesity, kidney disease and erectile dysfunction. In March 2020, the Veteran's attorney submitted a written statement withdrawing those appeals and they are no longer before the Board. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's bilateral metatarsalgia and right foot hallux valgus/rigidus, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here 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. 1. Entitlement to an initial rating in excess of 10 percent for left foot metatarsalgia The Veteran has been granted initial ratings of 10 percent each for right and left foot metatarsalgia, He seeks higher ratings. The Board finds that the claims must be denied. The Veteran's left foot metatarsalgia is rated as 10 percent disabling pursuant to Diagnostic Code (DC) 5279, which explicitly rates for metatarsalgia. Under DC 5279, the maximum available rating for metatarsalgia is 10 percent, whether the disability be bilateral or unilateral in nature. 38 C.F.R. § 4.71a, DC 5279. In this matter, the Veteran has been afforded the maximum schedular rating for all periods on appeal, and therefore, there is no basis upon which to assign a higher schedular rating. Therefore, an increased schedular rating beyond 10 percent for metatarsalgia of the left foot is denied. To accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. 38 C.F.R. § 3.321 (b)(1). Such a rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service (Director). See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The United States Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. All three criteria must be met for referral for an extraschedular rating. Id. If the Board finds that the Veteran has not met the criteria set forth in Thun, then it is not required to remand for initial extraschedular consideration, and the increased rating claim is denied. In this case, the Board does not find referral is warranted. Left foot metatarsalgia is generally rated based upon the characteristic left foot pain associated with that disability. The record includes multiple foot examinations, however, none of those examinations provide evidence of any symptoms outside the purview of the symptoms anticipated by the rating criteria for that disability. Neither has the Veteran asserted any symptoms or complications specific to his left foot metatarsalgia which might take that disability outside the schedular criteria. The Veteran has been granted service connection of neuropathy of the left lower extremity, which is related to that condition, but is, in fact, separate and distinct from the overlying metatarsalgia, and provides for a separate rating. The criteria for metatarsalgia rates based upon existence of the disability itself, and there is no evidence to suggest that the symptoms of metatarsalgia are not anticipated by the rating criteria. The Veteran's symptoms are exactly the type anticipated by the schedular criteria therefore, referral for extraschedular consideration is not warranted. 2. Entitlement to an initial compensable rating for right foot hallux valgus/rigidus The Veteran is service connection for right foot hallux valgus/rigidus, with a noncompensable rating. He seeks a higher rating. The Board finds that a 10 percent rating should be granted. The Veteran's hallux valgus/rigidus is rated under Diagnostic Code 5280, which compensates for hallux valgus, unilateral. Under the applicable rating criteria, a 10 percent rating is assigned for either severe hallux rigidus, described as "if equivalent to amputation of the great toe," or if the condition has been operated with resection of the metatarsal head. 38 C.F.R. § 4.71a, DC 5280. Also potentially applicable is DC 5281, which compensates for hallux rigidus, severe, and instructs that the condition be rated as severe hallux valgus. 38 C.F.R. § 4.71a, DC 5281. The evidence of record indicates that the Veteran underwent a resection of the right metatarsal head when he underwent a bunionectomy during active service, which qualifies for a 10 percent disability rating. To date, the RO has denied an initial 10 percent rating, arguing that the Veteran's condition pre-existed service, and that it did not undergo any significant worsening in service. The Board finds this flawed for two reasons. First, the Veteran's entrance examination does not specifically list right foot hallux valgus/rigidus upon entry. Further, to the extent that the condition may have pre-existed service, he did not undergo the bunionectomy/resection until after he had entered active duty service, and there is no indication that prior to the bunionectomy he had experienced symptoms so "severe" as to be equivalent to amputation of the great toe. As such, the Board must conclude that the condition was worsened by service, and the present status is of a hallux valgus/rigidus, status-post resection of the metatarsal head, and a 10 percent rating should be assigned. This is the maximum schedular rating allowed for the Veteran's condition. To this extent, the claim is granted. Effective Date Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date which the entitlement arose, whichever is later. See 38 U.S.C. § 5110 (West 2002 & Supp. 2014); 38 C.F.R. § 3.400 (2014). The effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). 3. Entitlement to an effective date prior to August 31, 2017, for the grant of service connection of left metatarsalgia 4. Entitlement to an effective date prior to August 31, 2017, for the grant of service connection of right metatarsalgia The Veteran has appealed the effective dates assigned for his left and right foot metatarsalgia disabilities. He seeks earlier effective dates. The Board finds that the claims should be denied. The Veteran filed a VA Form 21-0966 (Intent to File) on August 31, 2017. His fully developed claim which included the two granted foot disabilities was received on December 29, 2017. Prior to August 31, 2017, no other written claim or intent to file was received. Indeed, the only other correspondence from the Veteran between a November 2013 unappealed rating decision, and the August 2017 Intent to File was a May 2017 VA Form 21-22, appointing power of attorney. To the extent that the November 2013 rating decision denied claims of service connection for left foot pain and right foot hallux abducto/arthritis, he did not appeal that decision and it subsequently became final. As such, the most recent effective date available for the granted claims is August 31, 2017, and the earlier effective date claims are denied. New and Material Evidence If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (West 2014); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); 38 C.F.R. § 3.156. Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7104(b). The Board is under the statutory obligation to conduct a de novo review of the new and material evidence issue. Butler v. Brown, 4 Vet. App. 167, 171 (1996). Under 38 C.F.R. § 3.104 (a), a decision of the rating agency shall be final and binding as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104. An unappealed decision by the RO is final one year from the date notification of the determination is mailed to the claimant. 38 C.F.R. §§ 20.302, 20.1103 (2016). In general terms, "new" evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. "Material" evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that evidence may be considered new and material if it contributes, "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 115 F. 3d. 1356, 1363 (Fed. Cir. 1998). 5. Whether new and material evidence has been submitted to reopen a claim of service connection of chronic left foot pain The Veteran's claim of service connection for chronic left foot pain was initially denied in a 1980 decision. He did not appeal that decision and it became final. It was again denied in 2009 and 2012 rating decisions which were also unappealed and final. The Board recognizes that the RO has essentially found new and material evidence to support the claim, and reopened it, going so far as to grant service connection of left metatarsalgia (and for a period of time bilateral pes planus), as well as adjudicate the issues of service connection of left hallux rigidus and hammer toe. However, the question of new and material evidence is a jurisdictional prerequisite, and the Board must address it before addressing any of the left foot service connection claims. Additionally, the Board notes that, in addition to the left foot hallux rigidus and hammer toe claims, the Veteran has appealed service connection of generalized left foot pain. During the pendency of this appeal, the Veteran has been afforded multiple VA examinations which assess the present condition of his feet, and provide diagnoses for his reported symptoms. This evidence is new in that it was not of record at the time of the prior decisions. It is material in that it addresses a previously deficient criteria of service connection, namely a diagnosis. As such, new and material evidence has been submitted to reopen the previously denied foot claim. To this very limited extent, the appeal is granted. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including neuropathy and arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Regardless of whether a condition is listed as "chronic" for presumptive purposes, a continuity of symptoms from the time of service is a factor to consider in assessing any claim. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 6. Entitlement to service connection of left lower extremity neuropathy The Veteran seeks service connection of left lower extremity neuropathy. The Board finds that the claim should be denied. Initially, the Board recognizes a present diagnosis of left lower extremity neuropathy, as confirmed by medical treatment records and examination reports. A review of the Veteran's service treatment records reveals bilateral foot pain, treated with a bilateral bunionectomy. Scars on both feet were identified in his separation examination, with generally good results in the left foot and continued pain in the right (it is noted that the Veteran has already been granted service connection of right lower extremity neuropathy, as directly related to this foot pain, and this appeal deals exclusively with the left foot). The Veteran was afforded a diabetic peripheral neuropathy examination in June 2018. At that time, the examiner noted numbness from the time of this left bunionectomy in 1979, which was present, although not as significant as the right side. After he was diagnosed with diabetes mellitus in 1998, he began to have increased tingling, although his tingling in the toes pre-existed his diabetes diagnosis, and existed from the time of service. The examiner then opined that the initial peripheral neuropathy was secondary to the surgery for the hallux valgus of the first toe of each foot (bunionectomy), however, any additional neuropathy was related to his non-service-connected diabetes mellitus, with aggravation cumulating in 2015. An April 2020 VA peripheral nerve examination also documented a date of onset of the Veteran's left lower extremity peripheral neuropathy in 1977, starting with heavy boot wear and coupled with running, and treated with a bunionectomy in service. An opinion given with that examination noted that he entered military service with pes planus and hallux valgus, and surgery for that hallux valgus resulted in additional neurological complications. However, the Veteran also had a history of uncontrolled diabetes to which neuropathic pain is strongly related. No significant neurological disease was recorded in the years immediately after his bunionectomy surgery. Therefore, the current neuropathy was less likely related to the in-service bunionectomy and symptoms, and more likely due to his diabetes. Based on this evidence, and affording the Veteran the benefit of the doubt, the Board will grant service connection of left lower extremity neuropathy. While the Board acknowledges that his non-service-connected diabetes has played a significant role in the advancement of his condition, the Board notes that his diabetes was not diagnosed until 1998, many years after separation from service. Rather, both examiners have concluded that the initial symptoms were experienced during active service, and likely were attributable to his confirmed bunionectomy. While his symptom in his right foot were clearly more pronounced, they did exist in the left foot, and the Veteran has testified to ongoing symptoms from the time of active service, particularly numbness in his great toes. As this logic has been used to assign service connection of the right lower extremity neuropathy, and the symptoms and medical history are essentially the same in the left lower extremity, the Board will afford the benefit of the doubt and find that the left lower extremity neuropathy also had onset during active service with continuity to the present, and the claim should be granted. 7. Entitlement to service connection of degenerative spine disease of the low back The Veteran seeks service connection of a low back and neck disability. The Board finds that the claims should be denied. As an initial matter, the Board finds that the Veteran does not have a presently diagnosed low back disability. The Veteran was afforded a VA examination in June 2018. At that time, the examination revealed a normal low back without any diagnosed pathology to account for the Veteran's low back pain. Although the Veteran reported low back pain at that time, and difficulty with heavy lifting, range of motion testing revealed normal ranges of motion on all planes. In October 2020, a new examination was conducted. At that time, the examiner again concluded that no low back disability existed. Specifically, the examiner noted symptoms beginning in 2018, with no injury. Symptoms started with pain in the neck and back, tingling down the arms and muscle weakness. Current symptoms included neck and back pain. Flares could be severe in nature, due to long apartment days, long car rides and lack of sleep, and were alleviated by sleep, rest, pain medication and massage. The Veteran reported being unable to get out of chairs, needing assistance getting into and out of cars, and needing a lift to get into and out of bed. Upon examination no pathology could be identified specific to the spine or low back itself. Further, the examiner noted that range of motion testing could not be completed because the Veteran was 100 percent wheelchair bound dur to his service-connected neurological disabilities, and therefore the examiner could not conclude if pain contributed to functional loss. No pain was noted on examination, and the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare up. After the October 2020 examination, the examiner provided an opinion that the Veteran did not have a present diagnosis of a low back disability. Although some pain was noted in the cervical spine area, where a diagnosed condition existed, there was no specific complaints documented attributable to a low back disability. Further, his service-connected neurological disabilities are the likely contributing cause of any lumbar spine pain or pain related to decrease in muscle strength. Imaging did not support any low back diagnosis. As such, any low back pain, as it exists, is less likely than not related to his in-service foot diagnoses and bunionectomy, or currently service-connected foot conditions. Based on this evidence, the Board concludes that the Veteran does not have a low back disability which is separate and distinct from his already service-connected Amyotrophic Lateral Sclerosis (ALS). In this regard, the Board does recognize that pain itself can constitute a disability when it rises to a level of functional loss. However, the 2018 examination found no such evidence of any functional loss due to back pain, and the 2020 examination could not attribute any specific functional loss to independent back pain because the Veteran did not have mobility in the back due to his ALS. Further, the November 2020 examiner concluded that the symptoms of back pain were a symptom of his ALS, which has already been accommodated with a 100 percent disability rating. Therefore, any subsequent rating for low back pain from the date of service connection of ALS would constitute impermissible pyramiding. To the extent that service connection of ALS does not cover the entire appeal period for this claim, prior to October 2019, there is no evidence of any diagnosis or functional loss due to pain. It is further noted that there is no evidence of any low back injury or symptoms noted in active service, and the Veteran's symptoms did not start until 2018, per his own reports to the various VA examiners. As such, the Board finds that the low back claim must be denied as failing the primary criterion of service connection namely a presently diagnosed low back disability or any pain causing functional loss. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 8. Entitlement to service connection of left foot hallux rigidus 9. Entitlement to service connection of left hammertoe The Veteran seeks service connection of a left foot disability, claimed as chronic foot pain, and also diagnosed as left foot hallux rigidus and hammertoe. The Board finds that the hallux valgus and hammertoe claims should be granted. To the extent that left foot hallux valgus has also been identified as a diagnosis accounting for his left foot pain, that issue is addressed in the below remand. With his initial claim of service connection, the Veteran submitted a private foot examination report, dated in June 2017, which identified the following diagnoses to account for his left foot pain: bilateral flatfoot (pes planus) and bilateral hallux rigidus. Also identified at that time were metatarsalgia, hammertoe, and plantar fasciitis, although those were exclusively attributed to the right foot, and not both feet. Despite reporting worsening pain, the examiner did not opine as to the cause of the left foot pathologies. An April 2018 VA examination only addressed the right foot and not the left. In June 2018, a new examination was conducted which identified bilateral pes planus, bilateral metatarsalgia, bilateral hallux valgus, and right hallux rigidus. No hammertoe or hallux rigidus of the left foot was identified. No other left foot pathology was identified. Here, the Board notes that the identified left foot pathologies through April 2018 have already been granted service connection (or in the case of pes planus, granted, then severed). The Veteran continued to pursue his claims and in October 2020, he was afforded a new VA examination. At that time, the examiner identified the already service-connected pes planus and metatarsalgia. Also identified were bilateral hallux valgus and hallux rigidus, and right foot degenerative arthritis. Although not explicitly listed as a diagnosis in the beginning of the report, the examiner did find evidence of bilateral hammertoe, affecting the great and second toes of each foot. The examiner reported the history of the left foot conditions as starting in 1977, the result of wearing heavy boots and running causing callouses. Bunions were noted to preexist service and his boots aggravated the condition. A bunionectomy was completed on each foot in service, and resulted in further symptoms. The examiner reviewed the Veteran's medical history and concluded that the Veteran's left foot hammertoe was at least as likely as not related to his other service-connected foot conditions, specifically his metatarsalgia. Specifically, the examiner noted a direct correlation between the two conditions. Further, the surgery which the Veteran underwent on his metatarsalgia in service resulted in a curvature of the great and second toes of the left foot. As such, the left foot hammertoe was at least as likely as not proximately due to or the result of the left foot metatarsalgia. The examiner also concluded that the Veteran's left foot hallux rigidus was at least as likely as not related to active service. The stiffening of the left great toe following his in-service bunionectomy surgery is a direct cause of hallux rigidus, as such, the condition is at least as likely as not related to the metatarsalgia and/or resulting hammertoe, or the in-service surgery itself. The Board finds these opinions to be persuasive. They were rendered by a medical specialist in contemplation of the complete medical record. They supported the conclusion with citation to known medical principles and an application of the facts of this matter to those principles. The Board further notes that while the RO did not find these opinions to be particularly persuasive in the first instance, VA has not provided any opinion or evidence to specifically contradict the conclusion of the 2020 examiner. As such, the evidence favors the Veteran's claims, or is at least in equipoise as to whether or not service-connection should be granted for left hallux rigidus and hammertoe. When the evidence is in equipoise, the claimant prevails. As such, the Board will afford the Veteran the benefit of the doubt and grant service connection of both left foot hallux rigidus and hammertoe. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for bilateral pes planus 2. Entitlement to an effective date prior to August 31, 2017, for the grant of service connection of bilateral pes planus 3. Entitlement to an effective date prior to August 31, 2017, for the grant of service connection of right foot hallux valgus/rigidus arthritis, right great toe, is remanded. The Veteran appealed the issues of an increased rating and effective date of the grant of service connection of bilateral pes planus. The Veteran was initially granted service connection of bilateral pes planus in the July 2018 rating decision appealed herein. In November 2020, the RO issue a rating decision proposing to sever service connection of that disability. In January 2021, a rating decision was issued which severed service connection effective May 2021. The February 2021 statement of the case declined to include the rating and effective date claims due to the severance of service connection, however, the severance itself, which did not go into effect until May 2021, did not moot the issues of the initial effective date of the grant, or the rating assigned for that disability during the period where service connection is in effect. As a notice of disagreement has been filed with these issues, a statement of the case must address the claims. See Manlincon v. West, 12 Vet. App. 238 (1999). The issue of the effective date for the grant of service connection of right foot hallux valgus/rigidus was also appealed in the notice of disagreement, but not addressed in either the February 2021 statement of the case or March 2021 supplemental statement of the case. As such, this issue must also be remanded so that a statement of the case may be issued. Id. 4. Entitlement to an initial rating in excess of 10 percent for right foot metatarsalgia with plantar fasciitis The Veteran is seeking a rating in excess of 10 percent for right foot metatarsalgia with plantar fasciitis. The disability on appeal is presently rated pursuant to DC 5279-5276. Hyphenated Diagnostic Codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. In this matter, DC 5279 compensates for metatarsalgia, while DC 5276 compensates for acquired flatfoot (pes planus). It is noted that the Veteran was temporarily rated for flatfoot separately from metatarsalgia for a period of time prior to it being severed, and the issue of the rating for that disability is remanded above under the holding in Manlincon. In this regard, for the majority of the appeal period, there is no specific rating which compensates for plantar fasciitis as its own stand-alone disability, but rather DC 5276 appears to imply the presence of plantar fasciitis resulting in characteristic pain on use of the feet. However, during the course of this appeal, the schedular criteria for evaluating the foot have been amended. Specifically, a rating has been added which specifically compensates for plantar fascitis under 38 C.F.R. § 4.71a, DC 5269, effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 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; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's right foot disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id. The Board finds this problematic for two reasons. First, it is unclear from the available medical evidence precisely what symptoms associated with the plantar fasciitis is related to the Veteran's metatarsalgia, or whether it is related to the pes planus. Particularly, the Board notes that several examination reports fail to even diagnose plantar fasciitis, the diagnosis of which has been inconsistent throughout the appeal period. Additionally, because the rating for pes planus, as addressed in the below ordered statement of the case, is also granted pursuant to DC 5276, any rating the Board issues for plantar fasciitis with metatarsalgia could result in impermissible pyramiding. Further, presuming the Veteran's plantar fasciitis is directly related to his right foot metatarsalgia, the evidence of record is somewhat contradictory and inadequate to review under the new rating criteria which came into effect in February 2021. Particularly, a January 2021 VA foot examination reported contradictory evidence of plantar fasciitis, noting no evidence of tenderness on the plantar surface or evidence of effects on the plantar fascia, and declined to actually list plantar fasciitis as a diagnosis, despite noting it elsewhere throughout the report, including the portion finding it to be one of the attributable disabilities requiring the use of a walker or wheelchair. A private examination report submitted in August 2021 denies that the Veteran's plantar fasciitis has ever required surgical or non-surgical treatment, but implies that he has lost use of his foot beyond 1-2 minutes of standing due to pain in the region of the plantar fascia. However, that same report also notes that the Veteran has lost use of both feet due to ALS, so it is unclear whether the Veteran's plantar fasciitis has actually caused loss of use of the foot, or whether his loss of use is due to a different service-connected disability. In light of this, the Board would request a new VA examination of the Veteran's right foot, which assesses the various disabilities and provides specific findings as to whether or not the Veteran's metatarsalgia has symptoms of plantar fasciitis, or whether that symptoms is attributable to his pes planus, and also discusses the severity of his plantar fasciitis, as variously diagnosed throughout the appeal period. 5. Entitlement to service connection of degenerative spine disease of the neck is remanded. 6. Entitlement to service connection of left hip osteoarthritis is remanded 7. Entitlement to service connection of right hip osteoarthritis is remanded The Veteran has a present diagnosis of arthritis of the cervical spine and osteoarthritis of both hip. Although there is no evidence in the record of a neck or hip injury or symptoms in service, he asserts that his cervical spine disability an bilateral hip disabilities have been either caused or aggravated by his service-connected foot disabilities. The Veteran was afforded VA examinations in 2018 and 2020. Both resulted in opinions which did not find that his service-connected foot disabilities caused his cervical arthritis or hip disabilities. However, service connection on a secondary basis may be established by either (a) direct causation by a service-connected disability, or (b) aggravation by a service-connected disability. Although both examiners addressed direct causation, neither have opined as to any aggravation of the presently diagnosed neck or hip arthritis. As such, an addendum opinion should be obtained which assesses that question. 8. Entitlement to service connection of a left foot disability, claimed a chronic foot pain, and diagnosed as left hallux valgus, is remanded In addition to the specific foot diagnoses addressed above, the Veteran has continued to pursue his claim of service connection for a left foot disability, claimed as chronic foot pain. In his October 2020 VA examination, in addition to the various other left foot diagnoses, the Veteran was additionally diagnosed with left foot hallux valgus, which was previously denied service connection as part of the now-reopened left foot pain claim. Despite this diagnosis, the no medical opinion on the etiology of that diagnosed disability has been offered during the pendency of this appeal. Therefore, on remand, an addendum opinion should be obtained which assesses whether the Veteran's left foot hallux valgus (as opposed to his other service-connected and non-service-connected foot disabilities) is related to active service, to include his in-service bunionectomy. The matters are REMANDED for the following action: 1. Schedule the Veteran for a foot examination with a qualified examiner, particularly pertaining to his right foot metatarsalgia, plantar fasciitis, and bilateral pes planus. The complete claims file should be made available for review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Specifically, the examiner should discuss whether or not the Veteran has plantar fasciitis. If such a diagnosis is given, the examiner should state whether that is attributable to his right foot metatarsalgia, or whether it is related to his pes planus. The examiner should then report the symptoms associated with each identified disability. Particularly, with regard to any identified plantar fasciitis, the examiner should discuss the severity of any tenderness to the plantar fascia region of the foot; whether the Veteran has been recommended to undergo surgical intervention for his plantar fasciitis (and if he is a candidate for such intervention); whether the Veteran's plantar fasciitis has responded to either surgical or non-surgical treatment; and whether that plantar fasciitis has resulted in actual loss of the foot, or whether any loss of the foot is related to a different disability. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 2. Obtain an addendum opinion from a qualified examiner regarding the Veteran's cervical spine arthritis. The examiner should review the complete claims file and state whether it is at least as likely as not that the Veteran's cervical spine arthritis has been (a) caused by or (b) aggravated (indicating worsening beyond the natural progression expected of the disability) by his service-connected foot disabilities or any other service connected disabilities. The opinions should address both causation and aggravation. A rationale should accompany any opinion. 3. Obtain an addendum opinion from a qualified examiner regarding the Veteran's right and left hip osteoarthritis. The examiner should review the complete claims file and state whether it is at least as likely as not that the Veteran's cervical hip arthritis has been (a) caused by or (b) aggravated (indicating worsening beyond the natural progression expected of the disability) by his service-connected foot disabilities or any other service connected disabilities. The opinions should address both causation and aggravation. A rationale should accompany any opinion. 4. Obtain an addendum opinion from a qualified examiner regarding the Veteran's left foot hallux valgus. The examiner should review the complete claims file and state whether it is at least as likely as not that the Veteran's left hallux valgus is at least as likely as not related to any incident of active service, to include his in-service left foot bunionectomy. If the examiner finds in the negative, they should also state whether the Veteran's left foot hallux valgus has been (a) caused by or (b) aggravated (indicating worsening beyond the natural progression expected of the disability) by his other service-connected foot disabilities or any other service connected disabilities. The opinions should address both causation and aggravation. A rationale should accompany any opinion 5. Issue a statement of the case which addresses the following issues: (1) entitlement to an initial compensable rating for bilateral pes planus; (2) entitlement to an effective date prior to August 31, 2017, for the grant of service connection of bilateral pes planus; (3) entitlement to an effective date prior to August 31, 2017, for the grant of service connection of right foot hallux abducto valgus/rigidus arthritis. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel