Citation Nr: 21008650 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-60 697 DATE: February 17, 2021 ORDER Service connection for a right gluteal strain is denied. An initial disability rating of 10 percent, but no higher, for bilateral plantar fasciitis is granted. An initial disability rating of 10 percent, but no higher, for a right ankle strain is granted. An initial disability rating of 10 percent, but no higher, for a right hip strain with femoral head stress changes is granted. FINDINGS OF FACT 1. The Veteran's right gluteal strain is not attributable to service. 2. The Veteran’s bilateral plantar fasciitis is manifested by pain on use, approximating a moderate disability. 3. The Veteran’s right ankle strain is manifested by pain on use, approximating a moderate limitation of motion. 4. The Veteran’s right hip strain with femoral head stress changes is manifested by pain on use, approximating limited rotation with an inability to toe-out more than 15 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for a right gluteal strain have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for an initial 10 percent rating, but no higher, for bilateral plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276. 3. The criteria for an initial 10 percent rating, but no higher, for a right ankle strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5271. 4. The criteria for an initial 10 percent rating, but no higher, for a right hip strain with femoral head stress changes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2015 to January 2016 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. In January 2020, the Board remanded the above claims for further development. Service Connection Claim 1. Service connection for a right gluteal strain is denied. VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). At the September 2019 hearing, the Veteran testified that she has ongoing, sharp gluteal pain on the right side that limits daily activities, including her ability to sit. While the medical record does not contain a right gluteal diagnosis, the Board, resolving any doubt in her favor, accepts the presence of a current disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), (holding that pain alone, when causing functional impairment, may constitute a “disability” for VA compensation purposes, even if the pain is not accompanied by a medical diagnosis); see also Wait v. Wilkie, No. 18-4349 (Vet. App. Aug. 26, 2020). The Veteran testified that her right gluteal strain arose during service due to prolonged standing and sitting on concrete, sleeping on the ground in tents, digging fox holes, and moving heavy crates of ammunition. On her service entrance examination, no abnormalities of the lower extremities or gluteal areas were noted and the Veteran raised no pertinent complaints. In December 2015, she sought treatment for pelvic pain. A magnetic resonance imaging (MRI) study showed intramuscular edema along the right gluteus minimus and her diagnoses included a right gluteal strain. The remainder of the service treatment records (STRs) are silent for complaints, diagnoses, or treatment pertaining to a right gluteal disability. Rather, STRs show she experienced ongoing problems relating to the hips and pubic bone (separately service-connected disabilities), and discharge was recommended after three months of service. Her service separation document, DD 214, lists her separation code as "JFV" (physical condition, not a disability, interfering with performance of duty), and identifies the narrative reason for separation as “condition, not a disability." Treatment records generated following service, dated from early 2016 onward, do not document complaints or treatment pertaining to a right gluteal disability. On VA examination in September 2016 for the hips, the examiner noted that the “right gluteal strain identified on MRI resolved.” Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current right gluteal disability is related to active military service. While the Veteran reported an isolated instance of right gluteal pain in 2015, the remaining service treatment records are silent for pertinent documentation. The Board infers from this that the in-service report represents an acute and transitory condition. Indeed, the September 2016 VA examiner determined that the in-service gluteal strain has resolved. The fact that she sought treatment for other conditions after service, but not a right gluteal disability weighs against the credibility of any statements that her disability persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The claims file contains treatment records dated from shortly after discharge in early 2016, documenting a variety of complaints, without mention of a right gluteal condition. Because she described other complaints of musculoskeletal pain and provided overall assessments of her health and functioning to general practitioners, but made no mention of a right gluteal disability, it is reasonable to conclude that none was present. Id.; See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent that a VA medical opinion has not been obtained addressing the etiology of this disability, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Board finds that there is no indication, other than the Veteran's report, of any association between her current right gluteal disability and service. Moreover, treatment records indicate that since discharge she has participated in various physical activities, including a regular exercise routine and a dance class. She does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a complex disability. Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Her statements alone are thus insufficient to warrant a medical examination as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. See, e.g., Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, VA is under no duty to obtain a medical opinion. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Claims for Higher Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Board's analysis will focus specifically on what evidence is needed to substantiate the claims, and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The probative evidence here consists of the VA examination reports discussed below. The Veteran’s treatment records were considered, but generally do not contain the specific information sufficient for rating the disabilities under the applicable rating criteria. The regulations pertaining to rating musculoskeletal disabilities were recently revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The only diagnostic code pertinent to this appeal that has changed is DC 5271, discussed below. 1. An initial disability rating of 10 percent, but no higher, for bilateral plantar fasciitis is granted. In the October 2016 rating decision on appeal, the Veteran was awarded service connection for bilateral plantar fasciitis and assigned a noncompensable rating under DC 5276, effective January 28, 2016. Under DC 5276, a 10 percent rating is assigned for moderate flatfoot; 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. Ratings of 20 percent (unilateral) and 30 percent (bilateral) are assigned for severe flatfoot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Maximum ratings of 30 percent (unilateral) and 50 percent (bilateral) are assigned for pronounced 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. On VA examination in September 2016, the Veteran reported pain after standing or walking for a few hours. She denied experiencing flare-ups. The examiner found no functional loss attributable to the disability. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability during flare-ups or on repetitive use. On examination, she had pain on manipulation of the feet. The pain was not accentuated on manipulation. There was no swelling on use and no characteristic callouses. She used arch supports, which provided relief bilaterally. She did not have extreme tenderness of the plantar surfaces of the feet, and there was no objective evidence of marked deformity or marked pronation. The weight-bearing line did not fall over or medial to the great toe. She did not have inward bowing of the achilles tendon, marked inward displacement, or severe spasm of the achilles tendon on manipulation. The examiner noted that while the right arch was slightly lower than the left, neither was flat and pes planus was not present. Her symptoms and the minimal findings on examination were expected to improve and resolve. No other disability of either foot was diagnosed. At the September 2019 hearing, the Veteran testified that she has constant foot pain throughout the day with little relief from inserts, Epsom salt, Icy hot, Ibuprofen, or physical therapy. She reported that as a student, she required extra time to get to class because of foot pain. She also reported that she could not stay on her feet for prolonged periods of time. On VA examination in March 2020, the Veteran reported that she used over-the-counter arch supports. She was a student and regularly walked between different buildings and climbed stairs. She was able to participate in a dance class at school. She denied experiencing flare-ups. She did not have functional loss or functional impairment of the feet. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability during flare-ups or on repetitive use. On examination, there was no pain on manipulation of the feet. There was no swelling on use and no characteristic callouses. She used arch supports, which provided relief bilaterally. She did not have extreme tenderness of the plantar surfaces of the feet, and there was no objective evidence of marked deformity or marked pronation. The weight-bearing line did not fall over or medial to the great toe. She did not have inward bowing of the achilles tendon, marked inward displacement, or severe spasm of the achilles tendon on manipulation. The examiner noted that an arch was present in both feet, and was maintained in weightbearing and non-weightbearing. Her gait was normal. There was no pain in either weightbearing or non-weight bearing status or in passive motion. The examiner found the plantar fasciitis was resolved without residuals given the physical examination and x-ray results. No other disability of either foot was diagnosed. Considering the pertinent evidence in light of the governing legal authority, and resolving any doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted for bilateral plantar fasciitis given the September 2016 VA examiner’s finding of pain on manipulation, and the hearing testimony regarding constant pain in the feet. 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); Petitti v. McDonald, 27 Vet. App. 415, 424-26 (2015) (“Under § 4.59, the trigger for a minimum disability rating is an ‘actually painful, unstable, or malaligned joint[].’” (quoting 38 C.F.R. § 4.59)). Affording the Veteran the benefit of the doubt, the Board finds that throughout the appeal period, her bilateral plantar fasciitis has more nearly approximated a moderate disability due to pain on use of the feet. However, the preponderance of the evidence is against any higher rating under DC 5276. As there is no probative evidence of marked deformity, pain on manipulation and use accentuated, swelling, characteristic callosities, marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation, a rating in excess of 10 percent is not warranted. The Board has also considered the applicability of other diagnostic codes related to the feet. See 38 C.F.R. § 4.71a, DCs 5276-5284. However, neither VA examiner identified the presence of any other foot disability, such as weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toes, or malunion/nonunion of the tarsal or metatarsal bones. While DC 5284 provides ratings for “other” foot injuries, the United States Court of Appeals for Veterans Claims has held that DC 5284 does not apply to the eight foot conditions specifically listed in § 4.71a, and that rating any of the listed foot conditions under DC 5284 would constitute an impermissible rating by analogy. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). For the foregoing reasons, the Board finds that a 10 percent rating is warranted for the Veteran’s bilateral plantar fasciitis, however, the preponderance of the evidence is against the assignment of any higher rating. In this decision, the Board considered the doctrine of reasonable doubt. 2. An initial disability rating of 10 percent, but no higher, for a right ankle strain is granted. In the October 2016 rating decision on appeal, the Veteran was awarded service connection for a right ankle strain and assigned a noncompensable rating under DC 5271, effective January 28, 2016. Diagnostic Code 5271 pertains to limited motion of the ankle. Prior to February 7, 2021, that code provided a rating of 10 percent for “moderate” limitation of motion, and a maximum rating of 20 percent for “marked” limitation of motion. The words “mild,” “moderate,” and “marked” were not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board was required evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Effective February 7, 2021, DC 5271 continues to provide a rating of 10 percent for “moderate” limitation of motion and 20 percent for “marked” limitation of motion. Moderate is defined as less than 15 degrees of dorsiflexion, or less than 30 degrees of plantar flexion. Marked is defined as less than 5 degrees of dorsiflexion, or less than 10 degrees of plantar flexion. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271). According to the rating schedule, normal dorsiflexion of the ankle is to 20 degrees, and normal plantar flexion of the ankle is to 45 degrees. 38 C.F.R. § 4.71, Plate II. On VA examination in September 2016, the Veteran reported intermittent pain on the medial side of the ankle with occasional swelling. She could stand and walk for several hours. She denied experiencing flare-ups of ankle pain. On examination, dorsiflexion was limited to 15 degrees and plantar flexion was normal. There was no ankylosis. There was no pain in weight bearing. She could perform repetitive use testing with no additional loss of function or range of motion. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability on repetitive use. Muscle strength testing was normal and there was no instability of the ankle. The examiner noted that the disability was expected to resolve. At the September 2019 hearing, the Veteran testified that she has experienced right ankle pain since military service. She reported she could not stand for prolonged periods, and that the right ankle caused her difficulty in her college dance class. On VA examination in March 2020, she reported pain on the bilateral aspects of her ankles. She routinely walked to class and climbed stairs. She denied experiencing flare-ups of ankle pain. On examination, both dorsiflexion and plantar flexion were normal. There was no ankylosis. There was no pain in weight bearing. The Veteran could perform repetitive use testing with no additional loss of function or range of motion. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability on repetitive use. Muscle strength testing was normal and there was no instability of the ankle. There was no pain in either weightbearing or non-weight bearing status. There was no pain on passive motion. The examiner found that the in-service right ankle strain was resolved without residuals. Considering the pertinent evidence in light of the governing legal authority, and resolving any doubt in the Veteran’s favor, the Board finds that a 10 percent rating is warranted for the right ankle strain given the reports of pain on both VA examinations, as well as the hearing testimony in this regard. 38 C.F.R. § 4.59; see also Burton, 25 Vet. App. at 5; Petitti, 27 Vet. App. at 424-26. Affording the Veteran the benefit of the doubt, the Board finds that throughout the appeal period, her right ankle strain has more nearly approximated a moderate disability under the former version of the regulation due to pain on use of the right ankle. However, the preponderance of the evidence is against any higher or separate rating under the diagnostic codes pertaining to the ankle. As a “marked” ankle disability has not been shown, a higher rating under DC 5271 is not warranted under either version of that diagnostic code. Indeed, both VA examiners found that the right ankle is essentially asymptomatic and neither documented less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. The March 2020 VA examiner specifically found there was no limitation in motion and described the disability as “resolved.” The Board also considered all other diagnostic codes pertaining to the ankle but none are applicable. As the ankle is not ankylosed, DCs 5270 and 5272 do not apply. DC 5273 does not apply as there is no evidence of malunion of os calcis or astragalus. DC does not apply as there has not been an astragalectomy. For the foregoing reasons, the Board finds that a 10 percent rating is warranted for the Veteran’s right ankle strain, however, the preponderance of the evidence is against the assignment of any higher rating. In reaching this decision the Board considered the doctrine of reasonable doubt. 4. An initial disability rating of 10 percent, but no higher, for right hip strain with femoral head stress changes is granted. In the October 2016 rating decision on appeal, the Veteran was awarded service connection for a right hip strain with femoral head stress changes and assigned a noncompensable rating under DC 5253, effective January 28, 2016. Diagnostic Code 5253 provides ratings for impairment of the thigh. A 10 percent rating is assigned where there is limitation of rotation, causing an inability to toe-out more than 15 degrees, or there is limitation of adduction such that the legs cannot be crossed. A maximum rating of 20 percent is assigned where there is a limitation of abduction, with motion lost beyond 10 degrees. Normal hip flexion is from 0 degrees to 125 degrees, and normal hip abduction is from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. On VA examination in September 2016, the Veteran described her hip and pelvic pain in service. In service she developed a limp and had difficulty running; as a result, she was placed on physical profile. However, the hip and pelvic pain became too painful to continue further with basic training and she “chaptered out.” She was later found to have sustained a left inferior pubic ramus stress fracture. On examination, she reported pain and flare-ups in the left hip, but not the right. Flexion, extension, and adduction of the right hip were normal, and abduction was limited to 40 degrees. Adduction was not limited such that the Veteran could not cross her legs. External rotation was limited to 35 of 60 degrees, and internal rotation was normal. There was no pain with weight bearing. She could perform repetitive use testing with no additional loss of function or range of motion. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability on repetitive use. Muscle strength testing was normal and there was no ankylosis. She did not have malunion or nonunion of the femur, a flail hip joint, or a leg length discrepancy. A review of a 2015 and early 2016 bone scan, magnetic resonance imaging study (MRI), and x-rays revealed a prior fracture involving the left pubic ramus. In February 2016, the fracture was noted to be healing well. At the time of the September 2016 VA examination, the fracture was not identified. At the September 2019 hearing, the Veteran testified that she receives injections in the hip every three months to alleviate pain. She reported that she has constant pain which worsens throughout the day. On VA examination in March 2020, the Veteran denied experiencing flare-ups of right hip or thigh symptoms. She routinely walked to class, climbed stairs, exercised, and had participated in a dance class. On examination, the range of motion of the right hip was normal. There was no pain with weight bearing. She could perform repetitive use testing with no additional loss of function or range of motion. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability on repetitive use. Muscle strength testing was normal and there was no ankylosis. She did not have malunion or nonunion of the femur, a flail hip joint, or a leg length discrepancy. There was no pain in either weightbearing or non-weight bearing status, and no pain on passive motion. The examiner described her disability as resolved without residual based on clinical examination and x-ray results. X-rays of the hips and pelvis from 2018 revealed a prior fracture, and x-rays from 2020 were unremarkable. Considering the pertinent evidence in light of the governing legal authority, and resolving any doubt in the Veteran’s favor, the Board finds that a 10 percent rating is warranted for the right hip strain with femoral head stress changes given the reports of pain on both VA examinations, as well as her hearing testimony in that regard. 38 C.F.R. § 4.59; see also Burton, 25 Vet. App. at 5; Petitti, 27 Vet. App. at 424-26. Affording the Veteran the benefit of the doubt, the Board finds that due to pain on use, her right hip disability has more nearly approximated limited rotation causing an inability to toe-out more than 15 degrees. However, the preponderance of the evidence is against any higher or separate rating under the diagnostic codes pertaining to the hip and thigh. As limited abduction with motion lost beyond 10 degrees has not been shown, a higher rating under DC 5253 is not warranted. On VA examination in September 2016, abduction was to 40 out of 45 degrees, and on VA examination in March 2020 the Veteran’s range of motion was entirely normal. The Board has also considered all other diagnostic codes pertaining to the hip and thigh but none are applicable. As there is no ankylosis, DC 5250 does not apply. As extension has not been shown to be limited to 5 degrees, or flexion limited to 45 degrees, DCs 5251 and 5252 do not apply. As the Veteran is not shown to have a flail joint of the hip, a fracture of the shaft or anatomical neck of the femur with nonunion, or a fracture of the surgical neck of the femur with a false joint and malunion, DCs 5254 and 5255 do not apply. For the foregoing reasons, the Board finds that a 10 percent rating is warranted for the Veteran’s right hip disability, however, the preponderance of the evidence is against the assignment of any higher rating. In reaching this decision the Board considered the doctrine of reasonable doubt. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.