Citation Nr: 21073132 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-36 029A DATE: December 7, 2021 ORDER Entitlement to an increased rating in excess of 10 percent prior to May 13, 2021 and in excess of 50 percent thereafter for pes planus is denied. Entitlement to the maximum rating of 30 percent for shrapnel wound of the leg for the entire period on appeal (from August 27, 1997) is granted. REMANDED Entitlement to service connection for irritable bowel syndrome is remanded. Entitlement to service connection for rash, to include as secondary to herbicide agent exposure is remanded. Entitlement to service connection for peripheral neuropathy, to include as secondary to herbicide agent exposure is remanded. FINDINGS OF FACT 1. Prior to May 13, 2021, the Veteran's pes planus was manifested by accentuated pain on use. 2. From May 13, 2021, the Veteran's pes planus was manifested by accentuated pain on use and manipulation, and severe tenderness not improved by use of orthopedic device. 3. The Veteran's shrapnel wound residuals are manifest by severe injury of the XI muscle group. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to May 13, 2021 or in excess of 50 percent thereafter for pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 2. The criteria for a maximum rating of 30 percent for shrapnel wound injury to the muscle group XI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.56, 4.73 Diagnostic Code 5311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to April 1970. He was awarded, among other things, a Purple Heart for injuries sustained during service. The Board of Veterans' Appeals (Board) previously remanded these issues in December 2018. In addition, the Board also remanded the issues of service connection for hypertension, erectile dysfunction, and rectal fissures. VA granted service connection for these additional disabilities and they are no longer on appeal. Increased Rating Disability ratings are based on VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found are warranted, a practice of assigning ratings referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present. 38 C.F.R. § 4.2. 1. Entitlement to an increased rating in excess of 10 percent prior to May 13, 2021 and in excess of 50 percent thereafter for pes planus The Veteran's rating of 50 percent from May 13, 2021 represents the highest schedular rating available for pes planus. A higher rating is not available for this period. The Veteran's pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired 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. A maximum 50 percent rating is warranted for bilateral acquired 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. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). VA examined the Veteran in May 2013. The examiner found that the Veteran had accentuated pain on use of the feet, but not on manipulation. The Veteran did not have swelling on use or characteristic callouses. The Veteran's symptoms at the time were said to be relieved by arch supports, although the Veteran later denied this. He did not have extreme tenderness of the plantar surface. He did have decreased longitudinal arch height on weight bearing but did not have objective evidence of marked deformity (pronation, abduction etc.). The Veteran did not have marked pronation of the foot and the weight-bearing line did not fall over or medial to the great toe. The Veteran did not have inward bowing of the Achilles tendon and did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation. This examination weighs against an increased rating. The Veteran's primary complaint was accentuated pain on use, but the higher rating required pain on use and manipulation. The Veteran's examination was negative for pain on manipulation. Moreover, the higher ratings include a number of other symptoms to consider, such as swelling, characteristic callouses, and marked deformity. The Veteran's examination was negative for these symptoms. The Veteran was also negative for some of the symptoms at 10 percent, such as the medial line on or inward of the great toe, inward bowing of the Achilles tendon, and pain on manipulation. The Board finds that the rating criteria generally requires symptoms beyond those suffered by the Veteran in this report. The Veteran's medical records included a podiatry consult from September 2011. This consult noted no callouses, and flexible pes planus with arches when off loaded. The consult also noted that the Veteran's feet flattened when loaded with internal leg rotation causing medial muscle strain with associated pain. The Veteran was prescribed insoles. This note does not support a higher rating. The Veteran lacked characteristics of a higher rating such as callouses and although the Veteran was prescribed inserts, these are different from the higher rating's "orthopedic shoes or appliances" and are more akin to the noncompensable rating's use of the phrase "built up shoe or arch support." Leg rotation is not explicitly mentioned in the rating criteria but is similar to the weight bearing line shift contemplated by the Veteran's existing 10 percent rating. VA examined the Veteran again in May 2021. The Veteran had accentuated pain on use and manipulation. There was an indication of swelling on use, but not characteristic callouses. There was tenderness of the plantar surfaces of the feet, which was not improved by orthopedic shoes or appliances. The Veteran had decreased longitudinal arch height on weight bearing but there was no objective evidence of marked deformity of the feet. There was no marked pronation of the feet and the weight bearing line was not over or medial to the great toe. The Veteran did not have inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon. The Veteran had tried arch supports, but not built-up shoes. The arch supports were not effective. The May 2021 examination includes some elements of the 50 percent rating, and the Veteran is rated at 50 percent following this period. As mentioned above, this is the maximum rating provided by the diagnostic code. The question remains, however, as to whether the Veteran's higher rating should apply to an earlier time. The Board holds that it does not. The effective date of an increase is generally when it is ascertainable that an increase occurred. Here the May 2021 examination is the earliest date that the nature of the extent of disability is ascertainable. VA didn't obtain an examination between the 2013 and 2021 examinations, but medical records are available. These medical records, however, only mention pes planus with pain. For example, a February 2019 entry indicated only that the Veteran should wear his insert and use over the counter pain relief. This cannot be said to evidence the extreme tenderness and non-relief or other factors that the Veteran later experienced and that are required by the higher ratings. Accordingly, an earlier application of the 50 percent rating is not warranted. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran's disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. Additionally, the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for pes planus prior to May 13, 2021. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased rating in excess of 10 percent prior to May 13, 2021 and in excess of 30 percent thereafter for shrapnel wound of the leg The Veteran is currently rated as 30 percent disabled for an injury of muscle group XI. This is the maximum rating for this muscle group and a higher rating is not warranted. The Board, however, grants and extends this higher rate for the entire period on appeal. The 30 percent rating is warranted for severe disability of muscle group XI, where severe is defined by 38 C.F.R. § 4.56. As confirmed in the May 2021 examination, the Veteran matched the objective findings of ragged, depressed and adherent scars that, with palpitation, showed loss of deep fascia or muscle substance and soft flabby muscles in the wound area. He also had muscles that swelled and hardened abnormally in contraction. These symptoms support his 30 percent rating. Unlike for pes planus, the Veteran did not have an earlier VA examination for muscle injuries. Moreover, the type of injury described by the 2021 examiner is mostly static, making it at least as likely as not that the Veteran had the same extent of muscle injury at the beginning of his claim period as at the end. Finally, the rating criteria for muscle injuries partially focuses on past events when rating the injury. The Veteran suffered multiple low velocity missile impacts and resulted in a multi-week hospital stay. These are not factors that have changed over time. Taken together the Board finds that, resolving doubt in the Veteran's favor, the higher rating should be applied to the entire period on appeal. The period on appeal is found here to begin on August 27, 1997. Although the Veteran did not file his formal claim for increase until much later, as his representative points out, he submitted a Statement in Support of the Claim on this date that clearly seeks a reevaluation for his shrapnel wound. As the law in 1997 did not require the Veteran to file on any particular form, this statement constituted a valid claim. The next rating decision that addressed the issue following this claim was in August 2013, and the Veteran continuously pursued his appeal since then. Accordingly, a 30 percent rating will be granted back to August 27, 1997. REASONS FOR REMAND 1. Entitlement to service connection for irritable bowel syndrome is remanded. The Board previously remanded for an additional medical opinion. VA obtained an opinion, but the opinion is inadequate. The examiner opined that a diagnosis of irritable bowel syndrome from the service records was not possible because a diagnosis required three months of symptoms and the service treatment record did not cover symptoms for an entire period. The question for the examiner was not whether a definitive diagnosis of IBS was possible from the service records, however, but whether the incidents in the service records was at least as likely as not the beginning of what went on to become the Veteran's IBS. Remand is required for an addendum opinion. 2. Entitlement to service connection for rash, to include as secondary to herbicide agent exposure is remanded. The Board previously remanded for an additional medical opinion regarding the Veteran's rash. VA obtained an opinion, but that opinion is inadequate because it failed to take into account the Veteran's documented in-service rash. The examiner stated that the service records did not contain documentation of a rash while on active duty, but a note dated July 18, 1969 describes a rash under the right arm for two days. Remand is required for an additional opinion. 3. Entitlement to service connection for peripheral neuropathy, to include as secondary to herbicide agent exposure is remanded. The Board remanded for an additional opinion on peripheral neuropathy. An opinion was obtained but is inadequate. The examiner opined against service connection because the Veteran did not experience symptoms within one year of service. Medical records from February 16, 1970 indicated that the Veteran was experiencing lower extremity paresthesias, however. As this can be a symptom of neuropathy an addendum is necessary to address this symptom. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's irritable bowel syndrome was at least as likely as not incurred in service. The examiner is asked to opine on whether it is at least as likely as not that the diarrhea episodes noted in service could have been the start of what went on to become the Veterans irritable bowel syndrome even if it cannot be said with certainty that the Veteran had irritable bowel syndrome in service. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's rash is at least as likely as not incurred in service. The examiner is asked to opine on whether the Veteran's current condition is related to the document rash in the service treatment records from July 18, 1969. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's peripheral neuropathy is at least as likely as not caused by service. The examiner is asked to opine on whether the documented February 16, 1970 complaint of paresthesias demonstrated an onset of neuropathy during service. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Saindon, 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.