Citation Nr: 21009647 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-56 014 DATE: February 23, 2021 ORDER An initial rating of 30 percent, but no higher, for bilateral pes planus is granted. REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to service connection for left hip disability, to include as secondary to service-connected bilateral pes planus is remanded. Entitlement to service connection for left knee disability, to include as secondary to service-connected bilateral pes planus is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s bilateral pes planus was objectively described as severe and manifested by marked pronation, tenderness on the bilateral plantar surfaces, pain on manipulation and use, and necessitated orthotics including shoe inserts. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for a rating of 30 percent, and no higher, for bilateral pes planus, are met for the entire period on appeal. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1984 to March 1987. The Veteran testified before the undersigned Veterans Law Judge during a January 2020 hearing. This matter is on appeal from a September 2013 rating decision. 1. An initial rating of 30 percent, but no higher, for bilateral pes planus In this case, the Veteran claims that he is entitled to a higher initial rating for his bilateral pes planus. 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Id. at 126. In the present case, service connection for the Veteran’s bilateral pes planus, was granted in a September 2013 rating decision. The Veteran appealed the initial 10 percent disability rating assigned. The Veteran’s disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5276, which provides ratings for acquired flatfoot (i.e., pes planus) where moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a, DC 5276. Descriptive words such as “moderate,” “severe,” and “pronounced” are not defined in the Rating Schedule. 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. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. After reviewing the entire claims file, the Board resolves doubt and finds that the Veteran’s bilateral flat feet more nearly approximated the criteria for a 30 percent rating throughout the period on appeal. In this regard, the Veteran noted in his September 2014 Notice of Disagreement and provided testimony at the January 2020 hearing challenging the adequacy of the August 2013 VA examination because the examiner did not look up from her clipboard during the examination. The Veteran was provided another VA examination in August 2017. The examiner noted objective evidence of marked pronation and deformity of the bilateral feet. There was extreme tenderness of plantar surfaces of the bilateral feet as well as pain on manipulation of the feet that was accentuated with manipulation and use. There was indication of swelling of the bilateral feet with use. The Veteran did not have inward bowing of the Achilles tendon, nor did he have marked inward displacement and severe spasm of the Achilles tendon on manipulation of one or both feet. The examination did not demonstrate that the Veteran had characteristic callosities associated with his pes planus; however, the Board notes the Veteran testified during the January 2020 hearing to having calluses due to his bilateral pes planus and resolves doubt in favor of the Veteran to find that an initial rating of 30 percent is warranted. In this regard, the Board notes that the Veteran’s bilateral pes planus manifested most of the criteria for the 30 percent disability rating at the September 2017 VA examination and testified to the characteristic callosities at the January 2020 Board hearing. The Board finds that the September 2017 VA examination report is an adequate report upon which to base a decision as the examiner conducted a thorough examination and interview and addressed the relevant rating criteria. The Board affords the September 2017 VA examination report a high probative value. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). While the Veteran noted at the August 2017 VA examination that his bilateral foot pain was getting worse with time, there is no indication that the Veteran’s bilateral pes planus disability has worsened since the September 2017 VA examination. Further, throughout the appeal period the Veteran has stated and even testified at the January 2020 Board hearing that his bilateral pes planus is not completely relieved with the use of orthopedic shoes or appliances, but it is improved. To this end, the Veteran has stated that his arch supports “definitely help.” Thus, the Board need not remand for another VA examination prior to adjudicating the claim. Given evidence discussed above, the Board finds that the Veteran’s bilateral foot symptoms more nearly approximate the criteria for a 30 percent rating under 38 C.F.R. § 4.71a, DC 5276. However, while the Veteran’s symptoms are severe, the Board finds that a rating greater than 30 percent is not warranted. In this regard, without evidence of “pronounced” flat feet demonstrated by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation that is not improved by orthotic shoes or appliances, the disability simply does not rise to the level of the next higher rating. See id. The Board acknowledges that the Veteran meets the criterion for “marked pronation” and “extreme tenderness of plantar surfaces.” Indeed, such marked pronation and extreme tenderness is part of the reason for the increase to the 30 percent disability rating as the Board finds that this objective evidence meets the criterion for “marked deformity.” However, the additional criteria for a 50 percent disability rating are not met in this case. Although the September 2017 VA examiner noted marked pronation and extreme tenderness of the plantar surfaces, there is no evidence of “marked inward displacement.” To the contrary, the September 2017 VA examiner indicated that the Veteran had normal Achilles alignment bilaterally. Further, the examiner noted that the Veteran’s orthotics were of some help. Likewise, VA treatment records do not indicate that the Veteran has any marked inward displacement or severe spasm of the tendo Achillis on manipulation. Further, treatment records indicate that orthotics provide relief. The Veteran has not indicated that there are any outstanding treatment records that should be obtained prior to adjudicating the claim. The Board has considered the Veteran’s statements of his symptoms, in determining that higher initial rating should be granted. The Board observes that the Veteran is competent to identify those symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, his endorsements of pain on use, limitation of endurance, and use of inserts are competent and probative in describing his disability picture. However, the Veteran has not been shown to have the kind of medical expertise needed to assert that the degree of pain he experiences is akin to pronounced bilateral pes planus as this is a complex medical determination well beyond the scope of his lay competence. Nonetheless, the Board has considered the degree of pain in determining the appropriate rating for service-connected bilateral flat feet. Accordingly, the Board concludes that the Veteran’s bilateral flat feet disability warrants a 30 percent disability rating, but no higher, throughout the entire period on appeal. All evidence was considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral pes planus is remanded. 2. Entitlement to service connection for left hip disability, to include as secondary to service-connected bilateral pes planus is remanded. 3. Entitlement to service connection for left knee disability, to include as secondary to service-connected bilateral pes planus is remanded. The Veteran contends that his low back, left hip, and left knee disabilities are caused or aggravated by his pes planus. Specifically, he contends he has alignment issues due to an altered gait from his bilateral pes planus that impact his low back, left hip, and left knee. Service treatment records reflect that in January 1985, March 1985, and October 1986, the Veteran complained of left hip pain along with bilateral foot pain. It was noted that running aggravated his left hip pain and indicated the left hip pain was connected to the bilateral pes planus. In February 1985, the Veteran complained of pain to his bilateral lower extremities. VA treatment records demonstrate the existence of low back pain, left hip pain, and left knee pain. A history was noted of back surgery in 2011, injections in the hip, and a left knee procedure in 2007 including a bursa sac and meniscus procedure. The Veteran was afforded a VA examination in August 2013 for his low back disability. It was noted he was diagnosed with degenerative disc disease of the lumbar spine in 2010. The VA examiner concluded it is less likely than not that the Veteran’s lumbar spine degenerative disc disease was proximately due to or the result of the service-connected bilateral pes planus. As a rationale, the examiner noted that the bilateral pes planus during the August 2013 VA examination did not appear to be severe enough to cause other mechanical joint conditions. The Veteran was afforded a VA examination in August 2013 for his left hip disability. It was noted he was diagnosed with left hip bursitis in 2008. The VA examiner concluded it is less likely than not that the Veteran’s left hip disability, reported as bursitis, was proximately due to or the result of the service-connected bilateral pes planus. As a rationale, the examiner noted that the bilateral pes planus during the August 2013 VA examination did not appear to be severe enough to cause other mechanical joint conditions. The Veteran was afforded a VA examination in August 2013 for his left knee disability. It was noted he was diagnosed with left knee bursitis in 2007. The VA examiner concluded it is less likely than not that the Veteran’s left knee disability, reported as bursitis, was proximately due to or the result of the service-connected bilateral pes planus. As a rationale, the examiner noted that the bilateral pes planus during the August 2013 VA examination did not appear to be severe enough to cause other mechanical joint conditions In February 2020, the Veteran submitted nexus opinions. A nexus opinion from Dr. M.M. did not indicate that service treatment records or treatment records since separation had been reviewed. Dr. M.M. opined that the Veteran’s cervical radiculopathy and lumbar radiculopathy was caused by or a result of fallen arches in the bilateral feet. Dr. M.M. reasoned that fallen arches affect gait which affect knees and hips which then affect the spine. A nexus opinion from Dr. R.W.H. indicated that he had reviewed the treatment records since the Veteran had been seen by podiatry. He listed the Veteran’s current diagnoses as bilateral flat feet, bilateral plantar fascitis, and bilateral hallux limitus. He could not determine whether the diagnoses were related to an onset or events in service. However, he did note that medical literature discussed “both open and closed chain kinetics of the lower limb (back, hip, knee, ankle, and foot).” He further noted they all acted as one in gait and a malfunction or malalignment of one would affect all others in the chain. While the Veteran was afforded VA examinations regarding his back, left hip, and left knee disabilities, the examiner did not address the in-service treatment for his hip and lower extremities. Further, as the August 2013 VA pes planus examination did not adequately determine the severity of the Veteran’s bilateral pes panus, the opinions for the low back, left hip, and left knee disabilities did not properly address the secondary service connection claim. Further, the February 2020 nexus opinions do not adequately opine that the Veteran’s diagnosed low back, left hip, and left knee disabilities are caused by his service-connected bilateral pes planus, but suggest a relationship between the disabilities. Thus, new VA opinions are warranted to fully address the service connection claims. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current lower back disability: (a.) is related to an in-service injury, event, or disease; or (b.) is (i) caused or (ii) aggravated by the service-connected bilateral pes planus. The examiner should consider the Veteran’s testimony of injuries during active duty and the February 2020 nexus opinions. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current left hip disability: (a.) is related to an in-service injury, event, or disease, to include the January 1985, March 1985, and October 1986 complaints of left hip pain; or (b.) is (i) caused or (ii) aggravated by the service-connected bilateral pes planus. The examiner must consider and discuss the Veteran’s testimony and the February 2020 nexus opinions. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 4. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current left knee disability: (a.) is related to an in-service injury, event, or disease, to include the complaint of in-service lower extremity pain; or (b.) is (i) caused or (ii) aggravated by the service-connected bilateral pes planus. The examiner should consider the Veteran’s testimony and the February 2020 nexus opinions. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.