Citation Nr: 21072110 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 09-39 336 DATE: December 2, 2021 ORDER The appeal of the October 2017 rating decision that combined the service-connected bilateral pes planus (BFF) and bilateral plantar fasciitis (BPF) and degenerative joint disease (DJD) of the feet associated with BPP and BPF on the basis of clear and unmistakable error (CUE) in the October 2009 rating decision is denied. REMANDED The issue of entitlement to a rating in excess of 20 percent for lumbosacral strain prior to March 9, 2012 and in excess of 40 percent thereafter, to include compensation of separate ratings for neurologic abnormalities (such as radiculopathy, neuropathy, erectile dysfunction) is remanded. The issue of entitlement to special monthly compensation (SMC) for loss of use of a creative organ is remanded. FINDING OF FACT 1. The October 20, 2009 rating decision granted an increased evaluation for service-connected BPP/BPF from 30 to 50 percent under the criteria of Diagnostic Code 5276, effective August 14, 2008. 2. The October 2009 rating decision granted separate service connection for DJD as secondary to service-connected BPP/BPF and assigned a separate 10 percent rating under the criteria of Diagnostic Code 5003, effective June 3, 2009. 3. The October 2017 rating decision combined the service-connected disabilities and recharacterized it as BPP/BPF with DJD over the feet with an evaluation of 50 percent disabling under the criteria of Diagnostic Code 5276, effective October 20, 2017. 4. The Department of Veterans Affairs (VA) Regional Office (RO) did not appropriately apply the regulations to prevent pyramiding for the grant of separate service connection for DJD; therefore, it was proper that the RO incorporate degenerative joint disease into the 50 percent disability rating for BPP/BPF on the basis of CUE. CONCLUSION OF LAW The criteria for CUE in the October 2009 rating decision that granted separate ratings for BPP/BPF and DJD of the feet associated with BPP/BPF, have been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1983 to March 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from the October 2017 rating decision combining the Veteran's service-connected BPP/BPF and DJD of the feet associated with BPP/BPF on the basis of CUE in the October 2009 rating decision. The appeal was denied in an August 2020 Board decision. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC) and in August 2021 the decision was vacated pursuant to a Joint Motion for Remand wherein the parties agreed the Board did not adequately address arguments made by the Veteran. The matter has been remanded back to the Board. The Board notes that the Veteran's representative has asserted that his claims file is incomplete, noting that a rating decision code sheet from March 2003 is in his file, but there are no files prior to that date. The file before the Board contains evidence starting with a claim for service connection for BPP and BPF dated by the Veteran in April 2002 prior to discharge from active duty and decisional documents, including a rating decision in May 2003 with associated evidence. A February 20, 2018 letter indicates that the Veteran was provided with the entire claims file pursuant to request. The Board finds there are no missing documents as cited by the Veteran in the February 16, 2018 substantive appeal. 1. CUE in the October 2009 rating decision The Veteran contends there was no CUE in the October 2009 rating decision awarding a separate rating for DJD of the feet based on painful or limited motion of a major joint or group of minor joints because it is impossible to determine whether the 10 percent rating was based on painful motion, limitation of motion, or arthritis of a group of minor joints (even in the absence of limitation of motion). Additionally, the Veteran contended in the substantive appeal that "limitation of motion is not a part of the rating criteria for 38 C.F.R. § 4.73, diagnostic codes 5276 for pes planus and 5284, for foot injuries, other, under which plantar fasciitis is rated. A separate 10 percent rating for degenerative arthritis, based on limitation of motion symptoms would, therefore, not constitute pyramiding." CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). A CUE analysis is based on the record before the RO and the law as it was at the time of the decision being challenged. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). In cases where the RO finds CUE in its own decision, the focus is on the evidence of record at the time of the original decision and whether the rating originally assigned was clearly and unmistakably erroneous. From June 2009 to October 2017, the Veteran had a 10 percent rating for DJD as secondary to the service-connected disability of BPP/BPF (under Diagnostic Code 5003) apart from a 50 percent rating for his BPP/BPF (under Diagnostic Code 5276). The October 2009 rating decision stated that a 10 percent evaluation was assigned for painful or limited motion of a major joint or group of minor joints and may also be applied once to multiple joints if there is no limited or painful motion. Additionally, an increase to 50 percent for BPP/BPF was granted based on the Veteran's report of pain, fatigability, and weakness with walking, standing and performing daily activities, and objective findings of tenderness at the plantar aspect of the foot, weakness at medial arc, and inward bowing correctable with painful manipulation. The RO found that the statutory provisions in existence at the time of the October 2009 rating decision were incorrectly applied and, in the October 2017 rating decision, combined the two service-connected disabilities into BPP and BPF with DJD over feet with a continued evaluation of 50 percent disabling under Diagnostic Code 5276. Notably, in this instance, the October 2009 rating decision was not reversed or revised and the Veteran's compensation until October 2017 is not being recovered. Moreover, at the time the separate rating for DJD was combined with that for BPP/BPF, the Veteran already had a combined rating of 100 percent. The code sheets reflect that since service connection was established in 2003, the Veteran has been rated for BPP/BPF combined under Diagnostic Code 5276. Even if the Veteran were rated under DC 5284, as will be explained below, the outcome would be the same. Under Diagnostic Code 5276 as it existed in 2009, a 10 percent evaluation for bilateral pes planus is assigned when there are moderate flatfeet with weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent evaluation is assigned for severe bilateral pes planus; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating, the maximum, is assigned when there is evidence of pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of tendo achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. Under Diagnostic Code (DC) 5003 as it existed in 2009, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating is to be assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. A 10 percent rating is to be assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. DC 5003 further provides, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applicable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. The evaluation of the same manifestation under different diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2009). The October 2009 rating decision listed October 2008 and June 2009 VA examinations as evidence considered. In the October 2008 examination, the Veteran complained of pain, muscle cramping, and tenderness upon palpation. He endorsed pain, stiffness, fatigability, and weakness to the plantar area bilaterally. He complained of flare-ups weekly or more often precipitated by prolonged standing or walking that alleviated through rest. He used orthotic inserts and a cane for the BPP/BPF. There was no objective evidence of painful motion, swelling, or instability, but there was tenderness on the plantar aspect and weakness at the medial arc. There was inward bowing and midfoot malalignment correctable with manipulation albeit with pain. There was no pronation and no arch present on weight bearing or non-weight bearing. In the June 2009 examination, the symptoms identified were pain while standing and walking, and fatigability while standing and walking manifested by muscle cramps in the plantar area. He complained of flare-ups weekly or more often precipitated by prolonged standing and alleviated by rest. The examiner indicated objective evidence of painful motion, tenderness, and abnormal weight bearing. There was inward bowing and midfoot malalignment correctable with manipulation albeit with pain. There was mild pronation and an arch was present with non-weight bearing. X-rays showed degenerative changes, and the examiner diagnosed him with DJD over his feet secondary to BPP/BPF. Other evidence of record at the time of the decision reflects similar symptomology. Treatment records reflect painful movements and tenderness on palpation, and the Veteran submitted statements describing the excruciating pain in his feet that were tender to palpation and impacted his ability to stand or walk for more than a few minutes at a time. To address the Veteran's contention that it is unclear (and, thus, not CUE) whether the 10 percent under DC 5003 is based on limitation of motion or x-ray evidence of arthritis, it is true that the RO did not clearly state the basis on which a 10 percent rating under DC 5003 was awarded in the October 2009 rating decision. However, DC 5003 only provides for a 10 percent rating based on x-ray evidence of involvement of 2 or more joints in the absence of limitation of motion. Here, it is clear and unmistakable that the Veteran experienced limitation of motion. While the evidence of record did not explicitly reference such limitation in terms of range of motion, the record was replete with evidence of painful motion. Painful motion is considered limited motion even though a range of motion is possible beyond the point where pain sets in. See 38 C.F.R. § 4.59; Hicks v. Brown, 8 Vet. App. 417, 421 (1993) (overruled in part on other grounds). Therefore, because limitation of motion existed in the form of painful motion, by regulation the 10 percent rating could not have been based merely on x-ray evidence of arthritis. The Board must next consider the second part of the Veteran's contention that DC 5276 does not involve limitation of motion such that a separate rating for arthritis based on a limitation of motion would not constitute pyramiding. VAOPGCPREC 9-98 was issued to provide guidance on unclear CAVC precedent regarding whether certain diagnostic codes are based on limitation of motion and the potential applicability of DC 5003 and 5010, as well as 38 C.F.R. §§ 4.40, 4.45, and 4.59. The memorandum states that the prohibition against pyramiding under 38 C.F.R. § 4.14 requires that a separate rating under another diagnostic code be based on manifestations other than those compensated under DC 5003. While some codes clearly refer to limitation of motion, others require consideration of the nature of the given disability. For example, in VAOPGCPREC 36-97, following review of standard medical authorities it was concluded that DC 5293 for intervertebral disc syndrome did involve loss of range of motion. VAOPGCPREC 9-98 recommended a similar approach to other diagnostic codes. With respect to DC 5259 for removal of the semilunar cartilage, such removal may involve restriction of movement caused by tears and displacements of the menisci and may result in complications that can produce loss of motion, meaning that limitation of motion is a relevant consideration under DC 5259. Specifically, in reference to foot disabilities, the memorandum considered DC 5284 for foot injuries and found that some injuries may affect range of motion while others may not; thus, the nature of the particular injury determines whether limitation of motion is involved. As stated above, the RO evaluated the Veteran's BPP/BPF under DC 5276. DC 5276 accounts for extreme tenderness of plantar surfaces, severe spasms of the tendo achillis on manipulation, pain on manipulation and use of the feet, and indication of swelling on use (emphasis added). In the instant case, it is undebatable that the provisions of DC 5276 include painful motion, or limitation of motion. While the listed manifestations of extreme tenderness of the plantar surface, severe spasms on manipulation, and swelling on use could reasonably be construed as involving limitation of motion, it is clear and unmistakable that pain on manipulation and use necessarily means painful motion. The Board cannot conceive of an instance where pain "on use" does not also mean a foot in motion. Indeed, 38 C.F.R. § 4.57 states that "[t]he plantar surface is painful and shows demonstrable tenderness, and manipulation of the foot produces spasm of the Achilles tendon, peroneal spasm due to adhesion about the peroneal sheaths, and other evidence of pain and limited motion (emphasis added). Therefore, separate ratings for pain on manipulation and use for BPP/BPF and for painful motion for DJD of the feet associated with BPP/BPF constitutes impermissible pyramiding. Because 38 C.F.R. § 4.14 was not properly applied, it was CUE for the RO to assign separate ratings for painful motion under DC's 5276 and 5003 in the October 2009 rating decision. REASONS FOR REMAND 2. Entitlement to an increased rating for lumbosacral strain The Veteran is seeking an increased rating for his lumbosacral strain, as well as separate ratings for bilateral radiculopathy and neuropathy and service connection for erectile dysfunction secondary to his lumbosacral strain. This increased rating claim has a lengthy procedural history; most recently, it was remanded by the Board in November 2019 for a new examination. The examiner was specifically directed to comment on any neurologic abnormalities present, to include radiculopathy, neuropathy, and erectile dysfunction and offer an opinion as to whether they are related to the Veteran's service-connected low back condition. Examinations for the spine, radiculopathy, peripheral nerves, and erectile dysfunction were conducted in January 2020 by the same examiner. In the spine examination report, the examiner indicated there were no neurologic abnormalities (such as bowel or bladder problems/pathologic reflexes) other than radiculopathy. The examiner completed the medical opinion disability benefits questionnaire for both radiculopathy and erectile dysfunction together. The examiner indicated the claimed condition was less likely than not caused by or incurred in service. He then explains that bilateral radiculopathy was at least as likely as not due to the lumbosacral strain, but the erectile dysfunction was not. He elaborated there was "no indication of bowel or bladder dysfunction and there is no indication that [Veteran's ED] is due to back condition." The examiner noted no significant risk factors for erectile dysfunction other than dyslipidemia. In the erectile dysfunction examination report, the examiner indicated that the Veteran had voiding dysfunction of unknown etiology, noting an abnormal prostate as a possible source. Note (1) of the General Rating Formula for Diseases and Injuries of the Spine under 38 C.F.R. § 4.71a directs for the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. While the Board regrets the additional delay, the discrepancy between the indication of no neurologic abnormalities and the presence of a voiding dysfunction must be reconciled. Moreover, the Board agrees with the Veteran that the examiner provided an inadequate rationale for why the erectile dysfunction was not caused or aggravated by the lumbosacral strain. For these reasons, the claim must be remanded for another examination and opinion. 3. Entitlement to SMC for loss of use of a creative organ SMC for loss of use of a creative organ is inextricably intertwined with his erectile dysfunction claim and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: Schedule an examination to determine the current severity of the Veteran's lumbosacral strain, to include any associated neurologic abnormalities. The examiner must specifically address the presence of any neurologic abnormalities, such as radiculopathy, neuropathy, erectile dysfunction, or voiding dysfunction and offer an opinion as to whether they are at least as likely as not (approximately 50 percent or greater probability) caused OR aggravated by the lumbosacral strain. A detailed rationale must be provided for each opinion rendered. L.M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, Associate 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.