Citation Nr: 21077090 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-67 380 DATE: December 28, 2021 ORDER An increased rating of 50 percent for bilateral pes planus is granted. Service connection for bilateral hallux valgus is granted. REMANDED Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity femoral nerve is remanded. Entitlement to a separate compensable rating for radiculopathy of the right lower extremity is remanded. FINDINGS OF FACT 1. The Veteran's bilateral pes planus is manifested by symptoms that equate to pronounced flatfeet with marked pronation, extreme tenderness of the plantar surfaces and arch of the feet that result in significant limitations in walking and standing, and his overall symptoms are not improved by orthotic shoes or appliances. 2. The Veteran's bilateral hallux valgus was caused, or permanently aggravated, by his service-connected bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for an increased 50 percent rating for bilateral pes planus are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.20, 4.71a, Diagnostic Code 5276. 2. The criteria for entitlement to secondary service connection for bilateral hallux valgus are met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to December 1978. These matters come before the Board of Veteran's Appeal (Board) on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2021, the Board remanded the issues for further evidentiary development. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. If 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. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran is currently in receipt of a 30 percent rating from December 15, 2010, under 38 C.F.R. § 4.71a, Diagnostic Code 5276, throughout the claim period. Under Diagnostic Code 5276, and as relevant here, a rating of 30 percent is assigned for bilateral pes planus that is severe. "Severe" is defined as: objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A rating of 50 percent is assigned for bilateral pes planus that is pronounced. "Pronounced" is defined as: 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. At the September 2020 Board hearing, the Veteran rated his pain from this disability as 9 out of 10. The Veteran also reported that the orthopedic inserts provided by the VA do not particularly help with his foot pain. The Veteran reported that he had to soak his feet regularly to remove the callouses on his feet. The Veteran's wife reported that while the Veteran was walking, the Veteran shifted his weight between his feet based on which foot was not hurting at the time. She also reported that she had to stand near him because he has fallen several times due to his bilateral pes planus disability. The Veteran was first afforded a VA foot examination in January 2017. He reported that he always had pain on the bottom of his feet and on the lateral side at the fifth toe junction with persistent calluses. He also endorsed pain in both big toes. The Veteran stated that he took over the counter painkillers that resulted in only a temporary decrease in pain. The VA examiner noted that the Veteran had flare-ups that result from wearing dress shoes. The Veteran described his functional impairment as limited to standing only 10 to 15 minutes at a time and walking no more than one block. The VA examiner noted that the Veteran had pain accentuation with use and manipulation of the feet and characteristic calluses of both feet. The VA examiner also noted that the Veteran had decreased longitudinal arch height on both feet with weight-bearing. The VA examiner determined that the Veteran's contributing factors of disability include bilateral pain on weight-bearing and interference with standing. He also noted that increased weight-bearing also resulted in increased pain when the feet are used repeatedly over a period of time and during flare ups. However, at the September 2020 Board hearing, the Veteran alleged worsening and flare ups of his bilateral pes planus condition. Specifically, the Veteran stated that he experienced tenderness to touch on his feet. The Veteran's wife testified that she has watched him fall on several occasions and the Veteran had an abnormal gait where he puts more pressure on whichever foot hurts the least. The Veteran also stated that with showering and using the restroom, he had to take his time due to his bilateral pes planus. The Veteran also testified that he experienced flare ups when he walks a little further than he normally does. In its March 2021 remand, the Board determined that the VA examination was inadequate for rating purposes. Specifically, the VA examiner did not address flare ups from walking longer distances or whether the Veteran's abnormal gait was due to his bilateral pes planus. Pursuant to the March 2021 remand, the Veteran was afforded another VA foot examination in April 2021. The Veteran reported that he continued to have pain in both feet, mild at rest but that it hurt to stand. He stated that he needs to sit after five to ten minutes due to foot pain. He indicated that stops to rest after walking one block due to bilateral foot pain, both in the medial arches and at the front of the feet, pointing at his metatarsophalangeal (MTP) joint bunions. The Veteran also reported that he experiences flare ups for one to two hours once a week and that he requires Epsom salt soaks for a couple of hours until his symptoms return to baseline. The VA examiner determined that the Veteran had pain accentuation with use and manipulation of the feet and characteristic calluses of both feet. The VA examiner also determined that the Veteran used arch supports and built-up shoes for both feet with no relief. The VA examiner also indicated that the Veteran had decreased longitudinal arch height on both feet with weight-bearing. The VA examiner stated that the Veteran had moderate tenderness over both MTP joints at lateral and plantar surfaces but no tenderness of the arches or either heel when pressure applied with toes passively dorsiflexed. The VA examiner also opined that the Veteran's gait was symmetric but that he walked with a slightly reduced gait speed due to his pes planus, which produced symmetrical discomfort at the MTP joints bilaterally with standing and walking. The VA examiner determined that the Veteran's contributing factors of disability include pain, and interference with standing, disturbance of locomotion, and lack of endurance with both feet. The VA examiner also noted that there is functional loss due to pain, fatigability, weakness, lack of endurance, or incoordination during flare-ups and after repeated use over time. He explained that the Veteran needed to stay home and use Epsom salts during flare ups and had limitations with standing and walking for more than 10 to 15 minutes before needing to sit and rest. The Veteran also had pain with passive and active motion and weight-bearing. The VA examiner also determined that pes planus produces mechanical abnormalities in the feet that are likely the cause of the Veteran's bilateral hallux valgus. Based on the evidence of record, the most pertinent of which was discussed above, the Board finds that the Veteran's bilateral pes planus more closely approximates pronounced flat foot with marked pronation and extreme tenderness of plantar surfaces of the feet, and that his overall symptoms are not improved by orthopedic shoes or appliances. In this regard, the VA medical examination reports show that the Veteran has difficulty ambulating, despite orthotics, due to pain, tenderness, and calluses of the bilateral feet. The Veteran has also consistently reported pain and difficulty walking throughout the appellate period and that he continued to have pain in both feet even with the use of orthotics. The Board also finds it significant that the VA examinations reveal that the Veteran's bilateral pes planus significantly impact his ability to stand and walk. As such, any doubt in this regard is resolved in the Veteran's favor. Accordingly, the evidence of record shows that the Veteran's symptoms of bilateral pes planus more closely approximate a 50 percent disability rating and that his disability picture has been consistent over the entire appellate period. A 50 percent rating is the maximum disability rating assignable for pes planus and includes consideration of pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, Diagnostic Code 5276. No higher rating is provided by the rating schedule. Thus, the Veteran is in receipt of the maximum rating assignable for his bilateral pes planus, and higher ratings may not be assigned by analogy pursuant to other diagnostic criteria. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) citing Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating... may be assigned only where the service-connected condition is 'unlisted.'"). To assign a separate rating for symptoms of pain due to plantar fasciitis or metatarsalgia would amount to prohibited pyramiding. 38 C.F.R. § 4.14. As such, a rating in excess of 50 percent is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Hallux Valgus VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of an increased rating claim. Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008) ("The Board commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record."), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009. Service connection may be granted on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). Here, the January 2017 and April 2021 VA examiners determined that the Veteran had bilateral hallux valgus with mild or moderate symptoms. The April 2021 VA examiner also determined that, in consultation with the VA Chief of Podiatry, pes planus produces mechanical abnormalities in the feet that are likely the cause of the Veteran's bilateral hallux valgus. The Board finds the April 2021 VA examiner's opinion probative. The Veteran has a diagnosis of hallux valgus and it is due to his service-connected pes planus. Accordingly, the Board finds that entitlement to service connection for bilateral hallux valgus is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity femoral nerve is remanded. 2. Entitlement to a separate compensable rating for radiculopathy of the right lower extremity is remanded. Pursuant to the March 2021 remand, the Veteran was afforded a VA thoracolumbar spine examination for radiculopathy of his bilateral lower extremities in April 2021. The Board finds that this VA examination was inadequate for rating purposes. The VA examiner determined the Veteran did not have any radiculopathy symptoms in either leg despite his documentation of numbness with dysesthesia of the Veteran's left thigh and diagnosing him with meralgia paresthetica, which is service connected as left leg radiculopathy of the femoral nerve. The VA examiner then determined that the severity of the Veteran's radiculopathy is "zero because the diagnosis of left lower extremity radiculopathy is incorrect." The VA examiner did not address the Veteran's complaints of muscle spasms and numbness of his left leg. In rendering a negative nexus opinion for radiculopathy of the right leg, the VA examiner relied on absence of symptoms on the date of examination and disregarded the Veteran's hearing testimony. Based on the foregoing deficiencies, the Board finds that another VA examination is necessary prior to adjudication of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The matters are REMANDED for the following action: 1. Schedule the Veteran for a peripheral nerves examination with a neurologist, or similarly qualified clinician other than the April 2021 VA examiner, to determine the nature and severity of the Veteran's radiculopathy of the left lower extremity femoral nerve and radiculopathy of the right lower extremity. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated clinician. The clinician should opine on the following: (a.) If any neurological deficits are found in the right lower extremity, please provide an opinion regarding the likely date of onset, and whether such deficits may be attributed to the Veteran's lumbar spine disability. The examiner is asked to specifically discuss the Veteran's report of increased signs/symptoms in his right lower extremity as reported at the September 2020 Board hearing. Please explain the reasons behind any opinions expressed and conclusions reached. (b.) Provide an opinion regarding the severity of the Veteran's radiculopathy of the left lower extremity. The examiner is asked to specifically address the Veteran's reports of muscle spasms and the numbness in left lower extremity. Please review the September 2020 Board hearing transcript for the Veteran's descriptions of his radiculopathy symptoms. See September 2020 Board hearing trans. pp. 13-15. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, ora lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the Agency of Original Jurisdiction (AOJ) should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.