Citation Nr: 21009317 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 12-23 335 DATE: February 22, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for posterior tibial tendon dysfunction (PTTD) with arthritis, status post-surgery right foot with post-operative infection is denied. Entitlement to an effective date earlier than December 15, 2015, for the grant of service connection for pes planus of the right foot, to include as secondary to a service connected disorder of the posterior tibial tendon dysfunction (PTTD) with arthritis, status post-surgery with post-operative infection is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the preponderance of the evidence shows that the Veteran’s service connected right foot/ankle disorder is manifested by pain, occasional weakness, subjective reports of instability, and objective evidence of no more than moderate limitation of motion with no evidence of ankylosis. 2. A VA examination of February 11, 2016 confirmed the finding of pes planus of the right foot related to service. That was the first confirmed diagnosis after extensive testing. The persuasive evidence does not show a diagnosis of pes planus to be verified prior to that time by sufficient clinical testing. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for PTTD with arthritis, status post-surgery right foot with post-operative infection are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5024, 5270-5271. 2. The criteria for an effective date earlier than December 15, 2015, for the grant of service connection for pes planus of the right foot, to include as secondary to a service connected disorder of the posterior tibial tendon dysfunction with arthritis, status post-surgery with post-operative infection are not met. 38 U.S.C. §§ 5110, 7104; 38 C.F.R. §§ 3.151, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service from August 1977 to February 1982. She testified in an October 2015 hearing before the undersigned. A transcript is of record. In April 2020, the Board most recently remanded the Veteran’s claims for additional development. The Board finds that there was substantial compliance with the remand directives for the issue on appeal as discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition to the PTTD at issue herein, involving the ankle primarily, the Veteran is also service connected for right foot pes planus, right foot scarring, and right lower extremity neuropathy associated with the PTTD and the surgery done. Those ratings are not currently at issue. A total rating has recently been denied and there is no recorded disagreement, so that issue is not considered part of this appeal. Increased Ratings and Effective Dates Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. 38 C.F.R. § 4.59. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent to which the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to symptoms such as pain. See also 38 C.F.R. §§ 4.40, 4.45. The Veteran’s right foot disorder is rated under Diagnostic Code 5024, for tenosynovitis. Diagnostic Code 5024 provides that tenosynovitis will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. As noted, there are separate foot ratings assigned and impairment discussed herein primarily involves ankle impairment. Under Diagnostic Code 5270, a minimum 20 percent rating is assigned for ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle where plantar flexion is fixed between 30 and 40 degrees, or dorsiflexion is fixed between 0 and 10 degrees. A maximum 40 percent rating is warranted where plantar flexion is fixed at more than 40 degrees, or where dorsiflexion is fixed at more than 10 degrees with abduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of ankle motion. A 20 percent rating, the maximum rating for the Diagnostic Code, is assigned where there is evidence of marked limitation of ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2019). It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2020). Effective Dates The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. 1. Entitlement to an initial evaluation in excess of 10 percent for posterior tibial tendon dysfunction (PTTD) with arthritis, status post-surgery right foot with post-operative infection. The Veteran contends that she is entitled to an initial evaluation in excess of 10 percent for PTTD with arthritis, status post-surgery right foot with post-operative infection. The Board notes that a total disability rating was assigned by the regional office (RO) from May 29, 2020 to July 1, 2020 for a period of post-operative convalescence. Nothing herein will interfere with the assigned total rating. In a September 2010 VA feet examination, the examiner diagnosed the Veteran with PTTD with arthritis, status post-surgery right foot with post-operative infection. Examination findings reveal no evidence of instability or weakness of the right foot under weight-bearing conditions. However, the examiner noted pushing off foot pain, eversion and dorsiflexion pain, and tenderness of the first metatarsophalangeal joint. Objective findings indicated a diagnosis of swelling and pain in the arch of the right foot. Flare-ups were diagnosed as negative; however, the Veteran did report the use of an orthotic insert in her right shoe. The examiner also diagnosed no findings of the following: hammertoe; hallux valgus, vascular abnormalities, pes cavus; malunion; flatfoot; or muscle atrophy. X-ray findings of the right foot reveal hallux valgus with bunion formation and osteoarthritis. Concerning functional and occupational limitations, the Veteran reported pain while standing, walking, or resting her right foot. In a March 2012 physical therapy note, the Veteran reported pain in the arch of her right foot. May 2012 VA outpatient treatment records reveal that the Veteran underwent physical therapy for her right foot. In a May 2012 VA physical therapy note, the therapist reported a fallen right arch. In a July 2012 VA physical therapy note, the examiner diagnosed a right flattened arch. In a June 2015 VA foot conditions examination, the examiner diagnosed the Veteran with mild to moderate hallux valgus and tendonitis of the right foot. The examiner diagnosed the Veteran as negative for tenderness of the planter surface of her right foot. Decreased longitudinal arch height of the right foot on weight-bearing was also diagnosed as negative with no evidence of marked deformity, pronation, or ankylosis. Morton’s neuroma and metatarsalgia was also diagnosed as negative with no evidence of pes cavus. Dorsiflexion and vagus deformity due to pes cavus was also diagnosed as negative with no findings of malunion of tarsal or metatarsal bones. Pain of the right foot was diagnosed as mild with no functional loss to the right lower extremity diagnosed. Concerning functional and occupational limitations, the examiner noted none. In a February 2016 VA foot conditions examination, the examiner diagnosed the Veteran with right foot pes planus, degenerative arthritis, and PTTD. At the time of the examination, the Veteran reported wearing orthotics for her right foot. The Veteran also reported pain with weight-bearing activity which increases to severe on a daily basis. The examiner noted that she is unable to determine any measurable objective evidence to determine additional loss of motion during rep movement without resulting to mere speculation. The Veteran reported negative for flare-ups, and the examiner diagnosed no swelling or tenderness of the right foot. Decreased longitudinal arch height of the right foot when weight-bearing was diagnosed with evidence of marked deformity, marked pronation, with weight-bearing of the right toe falling medical to the great toe. Lower extremity deformity other than pes planus, causing alteration of the weight-bearing line was diagnosed as negative with no evidence on severe spasms or inward bowing of the right foot achilles tendon. Pain over the right foot on palpitation was noted by the examiner. X-ray findings reveal degenerative arthritis of the right foot. Concerning functional and occupational limitations, the examiner noted that the Veteran’s right foot disorder relegates her to light physical employment such as sales or teaching. In a February 2017 VA ankle conditions examination, the examiner diagnosed the Veteran with tenosynovitis of the right foot. The Veteran reported negative for flare-ups. Dorsiflexion was noted at 10 degrees with plantar flexion noted at 15 degrees. Evidence of weight bearing pain was diagnosed with objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Objective evidence of crepitus was diagnosed as negative. The examiner noted that a diagnosis of pain, weakness, fatigability, or incoordination when the joint is repeatedly used over a period of time as such an opinion is not feasible and cannot be provided resorting to mere speculation. Ankylosis was diagnosed as negative with right ankle instability and arthritis diagnosed. Concerning functional and occupational limitations, the examiner noted that the Veteran’s right foot does not impact her ability to perform any type of occupational task. In a June 2017 VA foot conditions examination, the examiner diagnosed the Veteran with PTTD with arthritis, status post-surgery right foot. The Veteran reported negative for flare-ups. Pes planus and swelling of the right foot was diagnosed. The Veteran reported using an orthotics device in her right shoe. extreme tenderness of plantar surface of the right foot was diagnosed with no evidence of decreased longitudinal arch height of the right foot when weight-bearing, marked deformity, or marked pronation. Lower extremity deformity other than pes planus, causing alteration of the weight-bearing line was diagnosed as negative with no evidence on severe spasms or inward bowing of the right foot achilles tendon. Pain on weight-bearing and non-weight-bearing was diagnosed with swelling, disturbance of locomotion, and interference with standing was diagnosed. The examiner also diagnosed weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups. Concerning functional and occupational limitations, the examiner noted that the Veteran’s right foot disorder mildly impacts her ability to stand or walk for long periods of time. No other specific ankle findings were made. In a June 2020 VA foot conditions examination, the examiner diagnosed the Veteran with moderately severe acquired pes planus, right foot; posterior tibial tendon dysfunction with arthritis, status post right foot reconstruction, bunionectomy and tendon repair with postoperative infection. The Veteran reported flare-ups ever since her May 2020 surgery. Pain in the right foot was noted. Pes planus and swelling of the right foot was also diagnosed. The Veteran reported using arch supports in her right shoe. Extreme tenderness of the plantar surface of the right foot was diagnosed as negative with no evidence of decreased longitudinal arch height of the right foot with weight-bearing, marked deformity, or marked pronation. Lower extremity deformity other than pes planus, causing alteration of the weight-bearing line was diagnosed as negative with no evidence of severe spasms or inward bowing of the right foot achilles tendon. Pain on weight-bearing and non-weight-bearing was diagnosed with swelling, disturbance of locomotion, and interference with standing was diagnosed. The examiner also diagnosed weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups. Pain numbness and an inability to stand or ambulate for a long period of time was also diagnosed. Pain on manipulation of the right foot that is accentuated was diagnosed. Concerning functional and occupational limitations, the examiner noted that the Veteran’s right foot disorder mildly impacts her ability to stand and her ambulation of her right foot for long periods of time will impact her ability to work. In an August 2020 VA foot conditions examination, the examiner diagnosed the Veteran with flat foot pes planus. The Veteran reported daily flare-ups of the right foot which are severe. Accentuated pain in the right foot with manipulation was diagnosed with no evidence of swelling. The Veteran reported the use of arch supports for her right foot. Extreme tenderness of the plantar surfaces was diagnosed as negative. Weight bearing pain with decreased longitudinal height of the right foot was diagnosed as negative with no evidence of marked deformity or pronation. The examiner also diagnosed the Veteran as negative for a weight-bearing line falling over or medial to the great toe or inward bowing of the achilles. The examiner diagnosed the Veteran as negative for severe spasms of the achilles tendon. The examiner noted the severity of the Veteran’s foot disorder as moderate. Concerning, functional loss and limitation of motion, the examiner diagnosed contributing factors of pain on movement with pain on weight-bearing and non-weight-bearing. The examiner also diagnosed fatigability, or incoordination that significantly limits functional ability during flare-ups. Regarding functional and occupational limitations, the examiner noted that the Veteran’s right foot disorder causes pain and tenderness when walking and standing. In an August 2020 VA ankle conditions examination, the examiner diagnosed the Veteran with PTTD with arthritis, status post-surgery right foot with post-operative infection. Dorsiflexion was noted at 10 degrees with plantar flexion noted at 20 degrees. Evidence of weight bearing pain was diagnosed with no objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue. Objective evidence of crepitus was diagnosed as negative. The examiner diagnosed that pain, weakness, fatigability or incoordination significantly limits functional ability with flare-ups. Ankylosis and right ankle instability was diagnosed as negative. Concerning functional and occupational limitations, the examiner noted that the Veteran’s right ankle results in difficulty with prolonged standing and walking. The Veteran also submitted a January 2021 VA examiner opinion. The examiner expressed that they performed a May 2020 reconstructive surgical procedure on the Veteran’s right foot and ankle. The examiner explained that the Veteran underwent a period of post-operative convalescence from May 29, 2020 to July 1, 2020 and has since experienced complications such as swelling, increased pain, and residual deformities of her right ankle and foot from the operation. The examiner noted that the Veteran will likely need to undergo an additional VA examination to decrease the pain and improve functioning in her right foot and ankle. Lastly, the examiner determined that based on the Veteran’s symptomatology, an evaluation of at least 20 percent is warranted. The Board acknowledges the conflicting VA medical opinion submitted by the Veteran which supports a finding that the severity of the Veteran’s PTTD warrants an increased evaluation of at least 20 percent. It is not clear, however, that the examiner was referring to just ankle impairment. Such rating is not warranted based on the objective findings. It is again noted that there are several separate ratings assigned, including a 20 percent rating for the right footed pes planus. When evaluating medical opinions, it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations, and there must be plausible reasons for favoring one opinion over another. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the Veteran’s claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When confronted with conflicting medical opinions, the Board must weigh each and favor one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must also determine which of the competing medical opinions is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In reviewing the examiners conflicting opinion there is no evidence that the examiner performed range of motion testing on the Veteran’s right ankle or foot. Nor did the examiner offer his opinion as to the present severity of the Veteran’s right foot or ankle with the benefit of performing an extensive and thorough VA examination. Moreover, the examiner offered his conflicting opinion based on the May 2020 reconstructive surgical procedure of the Veteran’s foot and ankle. Shortly thereafter, the Veteran underwent a thorough and extensive August 2020 VA right foot and ankle examination. These findings indicate that the Veterans PTTD of the right foot and ankle is manifested by occasional weakness, subjective reports of instability, and objective evidence of no more than moderate limitation of motion with no evidence of ankylosis. The most recent post-operative examinations above do not indicate that the Veteran’s symptomology has increased in severity. Thus, the Board has determined that the thorough and extensive August 2020 VA examination findings are more probative and compelling to the medical issue at question. Review of the record does not provide a basis for granting a rating in excess of 10 percent for the Veteran’s right foot PTTD disorder during the period on appeal. There is no evidence of ankylosis of the ankle in plantar flexion, less than 30 degrees which would warrant a 20 percent rating under Diagnostic Code 5270. There is also no evidence of marked limitation of ankle motion under diagnostic code Diagnostic Code 5271. The Board finds that the question of the severity of her PTTD disorder is medically complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). To the extent that the Veteran alleges greater severity, the Board finds that the probative value of her allegations is outweighed by the evidence of record. In summation, the Board finds that the Veteran’s PTTD of the right foot is manifested by occasional weakness, subjective reports of instability, and objective evidence of no more than moderate limitation of motion with no evidence of ankylosis. These findings more so approximate the maintaining of a 10 percent evaluation. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for PTTD of the right foot. 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 effective date earlier than December 15, 2015, for the grant of service-connection for pes planus of the right foot, to include as secondary to a service connected disorder of the posterior tibial tendon dysfunction with arthritis, status post-surgery with post-operative infection. The Veteran contends that an earlier effective date prior to December 15, 2015 is warranted for her pes planus of the right foot disorder. Specifically, in a notice of disagreement (NOD) received by the Board on May 2016, the Veteran asserts that he was first diagnosed with pes planus of the right foot disorder on March 3, 2010, and thus based on her diagnosis she is entitled to an effective date of March 3, 2010. After a thorough review of the evidence of record, the Board respectfully disagrees. The Veteran was originally granted service connection for her pes planus of the right foot disorder by a March 2016 rating decision. It was determined that in a December 15, 2015 VA podiatry note, the examiner reviewed the Veteran’s x-rays and diagnosed pes planus of the right ankle. There followed a February 2016 VA examination with extensive testing that concluded the criteria for a clinical diagnosis of pes planus had been met. Prior to December 15, 2015, the Veteran underwent a September 2010 VA feet examination. The examiner diagnosed the Veteran as negative for right foot pes planus or a right flat foot. In a March 2012 physical therapy note, the Veteran reported pain in the arch of her right foot. In a May 2012 VA physical therapy note, the therapist reported a fallen right arch. In a July 2012 VA physical therapy note, the examiner diagnosed a right flattened arch. The Board acknowledges the Veteran’s hearing testimony, appellate brief, and lay statements and finds that the question of the diagnosis of pes planus disorder is medically complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). To the extent that the Veteran alleges a diagnosed pes planus disorder prior to December 15, 2015, the Board finds that the probative value of her allegations is outweighed by the evidence of record. Review of the record subsequently, resulted in a clinical finding that the first positive verified finding of pes planus of the right foot associated with the PTTD was in clinical records dated on December 15, 2015. That record provided the basis for the assignment of the effective date herein at issue. The Board finds that entitlement to an earlier effective date prior to December 15, 2015 for service connection for right foot pes planus must be denied because prior to December 15, 2015 there is no evidence supporting a diagnosis of right foot pes planus due to PTTD through extensive testing. Based on the evidence, the Board finds that an earlier effective date prior to December 15, 2015 for the grant of service connection for right foot pes planus is not warranted.   The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2019). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris, Associate Counsel The Board’s decision in the case is binding only with respect to the instant matter decided. The decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.