Citation Nr: 21073923 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 10-10 313 DATE: December 13, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to an initial rating in excess of 10 percent for status post left foot fracture with arthritis, left heal contusion (left foot disability), prior to November 23, 2009, is remanded. Entitlement to an initial rating in excess of 10 percent for status post right foot fracture with arthritis, right heal contusion (right foot disability), prior to November 23, 2009, is remanded. Entitlement to an initial rating in excess of 30 percent for status post left foot fracture with arthritis and heel contusion, to include plantar fasciitis, hammer toe, claw foot, from November 23, 2009, is remanded. Entitlement to an initial rating in excess of 30 percent for status post right foot fracture with arthritis and heel contusion, to include plantar fasciitis, hammer toe, claw foot, from November 23, 2009, is remanded. Entitlement to an initial rating in excess of 10 percent for left foot hallux valgus is remanded. Entitlement to an initial compensable rating for right foot hallux valgus is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to May 1967, with subsequent service in the U.S. Marine Corps Reserves. In April 2014, this appeal was remanded. In November 2017, the Veteran's claim for service connection for a cervical spine disability was denied. The Veteran's claims for initial ratings in excess of 10 percent for bilateral foot disabilities were remanded. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). As a result, the Court issued a Memorandum Decision, in which the Court vacated the Board's denial of entitlement to service connection and remanded this issue for further proceedings consistent with the Memorandum Decision. Specifically, the Court noted that the Board failed to discuss potentially favorable evidence in support of the Veteran's claim. See June 2019 Memorandum Decision. The Court noted that in the Board's September 2019 denial of the above claim, the Board did not discuss the August 2013 private medical opinion by Dr. B., which stated that the Veteran has "significant left leg pain and weakness that is related to long standing lumbar spinal stenosis and cervical spinal stenosis" and that "we cannot directly relate any orthopedic restrictions to his military trauma but must assume that this was the origin of his current problems." The Court noted that this opinion outlines a potential nexus between the Veteran's cervical spine disability and his service. Given such, the Board should have considered it. The Court directed the Board on remand to explain the probative value of this evidence and account for its weight in adjudicating the Veteran's claim. In a June 2020 rating decision, the RO assigned 30 percent rating for status post bilateral foot fracture with arthritis and heel contusion to include plantar fasciitis, hammertoe, claw foot, and left foot hallux rigidus effective November 23, 2009. The RO assigned this rating to replace the Veteran's previous foot disabilities rating under 5010-5285. In other words, the Veteran's 10 percent ratings for status post right foot fracture with arthritis, heel contusion and foot stress fracture of the right and left feet under DC 5010-5284 was effective May 11, 2007 through November 23, 2009. The RO also assigned a separate rating for left foot hallux valgus at 10 percent, effective May 11, 2007 under DC 5280 and right foot hallux valgus at a noncompensable rating effective November 23, 2009 under DC 5280. Given that all these ratings arise out of the Veteran's appeal for his left and right foot disabilities, the Board has included each rating as part of the Veteran's appeal, as reflected on the title page. In February 2020 and October 2020, this appeal was remanded for further development. The Board notes the Veteran has been awarded a total disability rating for individual unemployability due to service-connected disabilities (TDIU) effective June 25, 2012. In a December 2020 Higher Level Review Informal Conference Worksheet, the Veteran opted for review under the Veterans Appeals Improvement Modernization Act of 2017 (AMA) review system requesting a higher-level review. The Board notes that the claims on appeal currently before the Board are being reviewed under the legacy appeals system. Pursuant to the Veteran's request for review under the AMA review system, the Regional Office (RO) issued a rating decision in December 2020 denying the Veteran's claim for an earlier effective date for TDIU prior to June 25, 2012. The Board notes that because the Veteran opted for review under the AMA system, the Board does not have jurisdiction to review the Veteran's claim for an earlier effective date for a TDIU prior to June 25, 2012. As such, the Board will not address that claim in this decision. The Board recognized that these claims have been previously remanded. Unfortunately, for the reasons discussed below, the Board finds that another remand is necessary. Cervical Spine Disability Here, the Veteran contends that his current neck disability is related to his service, to include a February 1968 in-service accident where the Veteran fell off a truck. The Veteran's service treatment records note that in February 1968, a "male twisted left ankle when he jumped off a Marine 6x6 while in drill status last PM." Alternatively, the Veteran contends that his neck disability is secondary to his service-connected disabilities. The Veteran has a current diagnosis of cervical spine stenosis. See October 2012 VA examination report. The Veteran contends that he has continued neck pain since his 1960s injury. See July 2010 VA examination report. Here, as discussed above, in an August 2013 addendum opinion, Dr. B. opined that the Veteran's cervical spinal stenosis began while he was in service after he fell off the truck and landed on his back. However, Dr. B. noted that "at this point, we cannot directly relate any orthopedic restrictions to his military trauma, but we must assume that this was the origin of his current problems and limitations." Dr. B. submitted an April 2014 private medical opinion, in which he opines that the Veteran's neck problems began after the Veteran's in-service fall off the truck. Unfortunately, as Dr. B. pointed out that he cannot directly relate any orthopedic restrictions to the Veteran's military trauma, the Board cannot find that his opinion is adequate. Furthermore, Dr. B. noted that he must "assume" the origin of the Veteran's current problems is his military trauma but does not explain the basis of his assumption. Consequently, the Board finds that his opinions are not supported by sufficient rationales and are therefore, inadequate. In the June 2020 VA medical opinion, the examiner opined that the Veteran's cervical spine disability is less likely than not related to his service. The rationale was that there was no continuity of care from the time in service until the present. However, the June 2020 VA examiner did not discuss the Veteran's statements and/or the Veteran's spouse's buddy statements about ongoing neck pain since the Veteran's separation from service. The June 2020 VA examiner opined that the Veteran's cervical spine disability is not caused by or aggravated by his service-connected bilateral left and right foot disabilities. However, the June 2020 VA examiner did not discuss whether the Veteran's cervical spine disability is secondary to his service-connected back disability. In a May 2021 VA medical opinion, the VA examiner opined that it is less likely than not that the Veteran's cervical spine disability is related to service. Again, the examiner's rationale was there was no continuity of care since separation from service. The VA examiner also did not discuss the Veteran's statements and/or the Veteran's spouse's buddy statements about ongoing neck pain since the Veteran's separation from service. Thus, the Board finds that the June 2020 and May 2021 VA examination reports of record are inadequate as they do not discuss the Veteran's lay statements about ongoing pain. Particularly in this case, Dr. B. noted he has been treating the Veteran for neck and back problems and noted that the Veteran reported back and neck pain since his service. In Miller, the Court held that the duty to assist requires an examiner to "address the veteran's lay statements to provide the Board with an adequate opinion," in part because "medical opinions can inform credibility findings. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Applying Miller, the Court explained in Smith, that because "medical opinions can inform credibility findings, the duty to assist may require the Board to obtain a medical examination before assessing the credibility of lay evidence." See Smith v. Wilkie, 32 Vet. App. 332 (2020). Given such, applying the Court's rulings in Miller and Smith, the Board finds that without consideration of the Veteran's lay statements, these VA medical opinions of record, are inadequate. Moreover, in the Board's February 2020 remand, the Board requests a medical opinion addressing whether the Veteran's cervical spine disability is secondary to his service-connected disabilities; however, the June 2020 VA examiner addressed only the Veteran's service-connected left and right foot disabilities. In this case, the Veteran is also service connected for nerve radiculopathy and thoracolumbar stenosis. Given such, a new VA medical opinion is warranted. Left and Right Foot Disabilities Regrettably, the Board finds, for the reasons discussed below, that a remand is warranted. As a way of background, in a November 2008 rating decision, service connection for status post right foot fracture with arthritis, heel contusion and foot stress fracture of the right and left feet were granted with a 10 percent rating for each foot under DC 5010-5284 effective May 11, 2007. The Veteran timely filed a Notice of Disagreement contesting the initial ratings and has continued pursuing the initial ratings since the initial grant of service connection. Since the initial grant of service connection for left and right foot disabilities, characterized as post right foot fracture with arthritis, heel contusion and foot stress fracture of the right and left feet, the Veteran has developed various other foot disabilities. Specifically, most recently, in the August 2021 VA examination report, the VA examiner delineated the Veteran's foot disabilities as plantar fasciitis of both feet, hammer toes of both feet, hallux valgus of both feet, hallux rigidus of both feet, acquired per cavus (claw foot) of the left foot, and other foot injuries (to include the Veteran's original heel contusion, arthritis, and stress fracture of both feet). Also, as discussed above, the RO has awarded some separate ratings for these foot disabilities. However, the Board finds that in order to accurately assess whether the Veteran is entitled to higher initial ratings or separate ratings for his foot disabilities, a new VA examination is required. Here, while the August 2021 VA examiner clearly delineates the Veteran's foot disabilities, it is unclear what symptoms are associated with each foot disability. In other words, the VA examiner does not state what the Veteran's symptoms are for each disability. In order to avoid violating the fundamental principle relating to pyramiding as outlined in § 4.14, the evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding), the Board must ascertain what symptoms are associated with which disabilities. Furthermore, the Board notes that as of February 7, 2021, changes to the rating schedule provide a separate rating for plantar fasciitis. As of that date, Diagnostic Code 5269 provides a 30 percent rating for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment; a 20 percent rating for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment; and a 10 percent rating for plantar fasciitis, otherwise, unilateral or bilateral. It is also provided that with actual loss of use of the foot, for it to be rated 40 percent. It is also noted that if a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable. Here, while the August 2021 VA examiner noted a diagnosis of plantar fasciitis of both left and right feet and noted that the Veteran has not undergone non-surgical treatment for this condition, the VA examiner did not answer whether the Veteran was recommended for surgical intervention, but not a candidate. Under the new DC 5269, it is also noted that if a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable. Given such, the answer to this question is relevant in determining how to evaluate the Veteran's plantar fasciitis of both feet. To sum, the Board finds that a new VA examination for foot conditions is warranted, which discusses all the Veteran's foot disabilities, delineating the symptoms and severity of each foot disability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and non-VA medical records relevant to the Veteran's claims on appeal. 2. Upon completion of the above to the extent possible, request an addendum opinion from a qualified medical professional, if possible, an orthopedic specialist, to determine the nature and etiology of the Veteran's current cervical spine condition. After review of the evidence, to include all the service treatment records, as well as medical records, lay statements, and any other relevant evidence, the examiner is asked to provide an opinion to the following: a) Whether the Veteran's cervical spine disability, to include cervical stenosis, is at least as likely as not caused by or related to the Veteran's service, to include the Veteran's in-service February 1968 injury, in which the Veteran fell of a 6x6 truck. The examiner MUST also discuss the Veteran's lay statements, as well as his spouse's buddy statements, regarding the history and chronicity of symptomatology, to include: the Veteran's ongoing reports of a neck problems. Specifically addressing: a. Are the Veteran's assertions consistent with medical knowledge or implausible? b. Are the Veteran's reports about symptoms or an in-service injury align with how the disease or disability is known to develop? S/he should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. b) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's cervical spine disability is (1) proximately caused by or (2) underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected disabilities, to include nerve radiculopathy and thoracolumbar stenosis. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 3. Schedule the Veteran for a VA medical examination to clarify the severity of his left and right foot disabilities. Access to the Veteran's electronic claims file MUST be made available to the examiner for review in connection with the examination. The examiner should specifically have the Veteran provide a full account of his symptoms with respect to his right and left feet. After examining the Veteran and conducting any studies and/or tests deemed necessary, the examiner should fully describe all symptomatology and functional deficits associated with these conditions. All medical findings are to be expressed in terms conforming to the schedular criteria of under Diagnostic Code 5276-5284, and also the new Diagnostic Code for plantar fasciitis under DC 5269. THE EXAMINER MUST DELINEATE EACH FOOT DISABILITY AND DISCUSS ALL THE SYMPTOMS ASSOCIATED WITH EACH DISABILITY. Here, the record reflects the Veteran has the following foot disabilities: hammer toes (on his right foot) hallux valgus of the right and left feet left and right ankle strain and plantar fasciitis status post foot stress fracture with moderate osteoarthritis of the right and left feet left and right heel contusion with calcaneal spurs. hallux rigidus and claw foot of the left and right feet. Plantar fasciitis of both left and right feet (please indicate if the Veteran has not undergone surgical treatment, whether surgical treatment recommended) Please discuss symptoms associated with each diagnosis. If symptoms overlap, please indicate such. If the examiner notes that one of the above diagnoses is no longer present, please indicate, as best as practical, when such disability resolved. Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination in relation to the Veteran's back disability. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. As to the Veteran's foot disabilities, the examiner shall inquire as to periods of flare-ups, and note the frequency, severity, and duration of any such flare-ups. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.