Citation Nr: 21011703 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-34 774 DATE: March 2, 2021 ORDER 1. Entitlement to increased staged disability evaluations for bilateral plantar fascitis with bilateral pes planus, evaluated as 30 percent disabling prior to March 8, 2019, and as 50 percent disabling from March 8, 2019 is denied. 2. Service connection for hypertensive vascular disease is granted. 3. Service connection for diabetes mellitus type II (DMII) is denied. FINDINGS OF FACT 1. Prior to March 8, 2019, the Veteran’s service-connected bilateral plantar fascitis with bilateral pes planus manifested excess pronation in both feet with pain on use and swelling; March 8, 2019 forward, bilateral plantar fascitis with bilateral pes planus fascitis manifested pain on use, extreme tenderness of plantar surfaces, and decreased longitudinal arch height on weight bearing. 2. Affording the Veteran the benefit of the doubt, his diagnosed hypertension is related to service. 3. The Veteran’s diagnosed diabetes mellitus is not related to service. CONCLUSIONS OF LAW 1. Prior to March 8, 2019, the criteria for an evaluation in excess of 30 percent, and in excess of 50 percent thereafter, for the Veteran’s bilateral plantar fasciitis with bilateral pes planus are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5276. 2. The criteria for service connection of hypertensive vascular disease have been met. 38 U.S.C. § § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection of diabetes mellitus have not been met. 38 U.S.C. § § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1994 to December 1994, and from July 2005 to October 2006. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 Rating Decision of a Department of Veteran’s Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of that hearing has been associated with the claims file. In a September 2020 correspondence, the Veteran was informed that the VLJ who conducted his Travel Board hearing was no longer employed at the Board, and was asked if he desired another Board hearing. In an October 2020 response, the Veteran indicated that he did not desire another hearing. These matters were most recently before the Board in December 2019 when they were remanded for additional development. The Board finds that there has been substantial compliance with the remand directives, and the case is rightfully back before the Board. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes, and will explain in further detail below, that it finds the January 2020 post-remand VA examination for hypertension inadequate. However, the Board finds the adequacy of this VA examination is irrelevant because service connection is being granted. 1. Entitlement to increased staged disability evaluations for bilateral plantar fasciitis with bilateral pes planus, evaluated as 30 percent disabling prior to March 8, 2019, and as 50 percent disabling thereafter is denied. The Veteran’s service-connected bilateral plantar fasciitis with bilateral pes planus has been rated as 30 percent disabling prior to March 8, 2019, and 50 percent disabling from March 8, 2019, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 5276. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities of the feet are contemplated by Diagnostic Codes 5276 through 5284, which in some instances, provide for disability ratings for unilateral or bilateral disabilities. 38 C.F.R. § 4.71a. Under Diagnostic Code 5276, for acquired flatfoot, a noncompensable evaluation is assigned for mild symptoms relieved by shoe or arch support. A 10 percent evaluation is assigned for unilateral or bilateral moderate disabilities of the feet with the weight-bearing line over or medial to the great toe, inward bowing of the tendo-Achilles, and pain on manipulation and use of the feet. A 20 percent evaluation is assigned for unilateral (30 percent for bilateral) severe acquired disabilities of the feet with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities. A 30 percent evaluation is assigned for unilateral (50 percent for bilateral) pronounced acquired disabilities of the feet with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Initially, the Board notes that since the Veteran’s service-connected foot disability is not manifested by claw foot (pes cavus), or impairment of the tarsal or metatarsal bones, Diagnostic Codes 5278, 5279, 5280, 5281, 5282, and 5283 are not for application. Diagnostic Codes 5277 and 5284 are not considered since the codes do not grant a rating higher than 30 percent and thus it does not help the Veteran’s claim. For the period prior to March 8, 2019, the evidence is against a finding that the Veteran’s bilateral plantar fasciitis warrants a rating in excess of 30 percent. Service Treatment Records (STRs) reveal the Veteran’s complaint of swelling and pain upon walking, running, and standing. A September 2005 STR notes excess pronation in both feet with pain and heel spurs. VA treatment records reveal pain across plantar surfaces of feet, vague tenderness, and orthotics fitting. See October 2006, July 2007, and April 2009 VA Examinations. Although the Veteran had excess pronation in service, which the Board interprets as marked pronation, the evidence is against finding that there was 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. Accordingly, the Veteran’s bilateral plantar fasciitis does not more nearly approximate the rating criteria for a higher rating prior to March 8, 2019. 38 C.F.R. § 4.71, Diagnostic Code 5276. Since March 8, 2019, the Veteran is receiving the maximum schedular rating of 50 percent under Diagnostic Code 5276. As the maximum rating under Diagnostic Code 5276 for bilateral plantar fasciitis has been assigned a rating in excess of 50 percent for bilateral plantar fasciitis under this Diagnostic Code is not available. The Board has considered whether another Diagnostic Code is applicable to the present case, as the Veteran’s service-connected plantar fasciitis is not specifically listed in Diagnostic Codes 5276 through 5283. In this regard, the Board finds that the Veteran’s plantar fasciitis is adequately contemplated by his assigned ratings under Diagnostic Code 5276. Plantar fasciitis is defined in part as inflammation of the soles of the feet. See Stedman’s Medical Dictionary 1392, 652 (27th ed. 2000). Diagnostic Code 5276 explicitly considers swelling, pain, and tenderness of the plantar surfaces of the feet. As such, no other diagnostic code is more appropriate than 5276. All potentially applicable diagnostic codes have been considered, and the Veteran is not entitled to ratings in excess of the ratings already assigned. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). For these reasons, the Board determines that the preponderance of the evidence is against granting a rating in excess of 50 percent after March 8, 2019. This means that the Veteran’s claim for increased rating in excess of 50 percent after March 8, 2019 is not warranted. Service Connection 2. Service connection for hypertensive vascular disease is granted. The Veteran contends that service connection is warranted for his hypertension. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, hypertension is a chronic disease under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) do apply. Fountain v. McDonald, 27 Vet. App. 258, 274-75; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of a disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran testified that his blood pressure spiked while in service and continued to be elevated following his separation from service. He further testified that he was never administered medication for his hypertension in service, but was instead told he needed to exercise to lower it. See Hearing Transcript pg. 20. A review of the Veteran’s Service Treatment Records (STRs) reveal instances of elevated blood pressure in May 2006, July 2006, August 2006, and September 2006. However, no formal diagnosis was provided. VA treatment records from November 2008 reveal a hypertension diagnosis. The Veteran was afforded a VA Hypertension examination in March 2019, at which time he was diagnosed with hypertension. The VA examiner opined that the Veteran’s diagnosed hypertension is less likely than not incurred in or caused by service. In support of this conclusion, the VA examiner explained that: The Veteran was in the Gulf War between 1994 and 2006. The Veteran’s C File indicates that he has one isolated elevated blood pressure and he was told to cut down on salt and to exercise in reference to his blood pressure. In 2007 at the Detroit VA, the Veteran denied a history of hypertension and blood pressures were taken that day as follows, 134/80, 130/84 and 130/84. He was finally diagnosed with hypertension in 2008 and was started on antihypertensive medications. The Veteran has been taking medication for his blood pressure now for the past 11 years and it is documented in his medical records that despite antihypertensive medications he continues to be challenged with hypertension. His average blood pressure reading over the past six months is 176/103 After the December 2019 remand, the Veteran was afforded another VA examination in January 2020 to determine the nature and etiology of his hypertension. After confirming a diagnosis of hypertension, the VA examiner concluded that the Veteran’s hypertension is less likely than not due to service. The examiner explained that a disability which began in service or was caused by some event in service must be considered “chronic” before service connection can be granted. Though there are isolated instances of elevated blood pressure while in service, no permanent residual or chronic disability subject to service connection has been shown by STRs or demonstrated by evidence within a reasonable period of time following active duty. At the outset the Board finds both the March 2019 and January 2020 VA opinions to be inadequate. Significantly, the March 2019 VA examiner did not specifically address the significance, if any, of the notations of elevated blood pressure isolated documented in the Veteran’s STRs in May, July, and September 2006. With respect to the January 2020 opinion, the VA examiner applied an incorrect legal standard in forming his negative nexus opinion. Specifically, the examiner appears to have required a showing of chronicity in service for service connection to be granted. However, this is not the case. The Veteran can also be granted service connection based on a direct cause to service, or by a showing of continuity of symptomology. Affording the Veteran the benefit of the doubt, the Board finds that service connection for hypertension is warranted based on continuity of symptomology. The Veteran’s STRs reflect several notations of elevated blood pressure readings in 2006. Although the Veteran is not competent to give an opinion on the cause of the underlying symptomology of hypertension, the Veteran has credibly stated that he has experienced the symptoms of high blood pressure since service and began having his blood pressure checked not too long after service and was diagnosed with hypertension in 2008. Continuity of symptomology since service supports the chronicity of hypertension in or since service. For the reasons discussed above, and affording the Veteran the benefit of the doubt, a preponderance of the evidence is for the claim for service connection for hypertension. Therefore, service connection for hypertension is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for diabetes mellitus type II (DMII) is denied. The Veteran asserts he should be granted service connection for his DMII. Diabetes is considered by VA to be a “chronic” disease listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). This rule does not mean that any manifestation in service will permit service connection. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a disability noted during service is not shown to be chronic, then generally, a note of the condition in service along with a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection may also be established with certain chronic diseases, including diabetes, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from active service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of active service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. As discussed below, the Veteran’s DMII did not manifest within one year from the date of his separation from active service. Therefore, the one-year presumption does not apply. The Veteran testified at his May 2017 Travel Board hearing that he was placed on a weight profile and experienced fatigue and frequent urination in service, which he believed were symptoms of his diabetes. In July 2007 VA treatment records, it was noted that the Veteran had gained 40 pounds in the past year and had a blood glucose level of 126 mg/dL. In April 2008, the Veteran was indicated to be at high risk for diabetes, and formally diagnosed as having diabetes in May 2009. A March 2017 private treatment record notes a diagnosis of DMII without complications and outlines a treatment plan. The Veteran was provided a VA examination for his DM in March 2019, at which time he was diagnosed as having diabetes mellitus, type II. The examiner opined that because the Veteran was not diagnosed with DMII until 3 years after separating from service, diabetes was less likely than not incurred in service. Pursuant to the December 2019 Board remand, the Veteran was afforded another VA examination for his DMII in January 2020. The examiner found the Veteran’s diagnosed DMII was less likely than not related to service or incurred in service. The rationale explained that the evidence of record does not establish that the Veteran had “pre-diabetes” with an ALC of 6.4 percent until 2008, 2 years following service, which was likely related to “calories in, calories out,” inactivity, and poor dietary choices. Responding to the Veteran’s contention of weight gain, fatigue and frequent urination in service, the examiner noted that the Veteran most likely experienced weight gain due to his caloric intake, and not untreated diabetes. The examiner explained that typically untreated diabetes will cause a reduction of weight rather than gain due to the ineffective release of glucose to the cells, which causes the body to burn fat and muscle for energy. The examiner further explained that the Veteran reported averaging only 3-4 hours of sleep many days during deployment. This, the examiner reports, along with wearing/carrying heavy equipment in hot weather and performing the activities required of a soldier, is the most likely reason for the Veteran’s reported fatigue. Concerning the Veteran’s report of frequent urination, the examiner noted the Veteran’s acknowledgment of drinking more fluids to stave off dehydration in the hot weather while deployed. This, he determined, was the most likely cause of the Veteran’s frequent urination. After a careful review of the record, the Board has determined, based upon the probative evidence of record, that service connection is not warranted for DMII. While the probative evidence of record demonstrates that the Veteran has a current diagnosis of DMII, there is no evidence indicating that the current DMII was incurred in or otherwise related to his active service. STRs from the Veteran’s period of active service demonstrate no findings or diagnoses of diabetes mellitus. Post-service VA treatment records reveal the Veteran was indicated to be at high risk for diabetes in April 2009, and formally diagnosed as having diabetes in May 2009, almost 3 years after active duty service. Despite current diagnosis of DMII, the Board observes that there is no probative medical evidence indicating this disability was incurred in or is otherwise related to the Veteran’s active service. Initially, the Board finds the March 2019 VA opinion to be inadequate. The opinion appears to be entirely based on the fact that the Veteran was not formally diagnosed with diabetes until 2009, three years after he separated from service. The examiner did not explain why the other evidence, to include the Veteran’s statements regarding being placed on a weight profile, and experiencing fatigue and frequent urination in service was insufficient to establish that the Veteran’s DM had its onset prior to 2009. On the other hand, the Board finds the January 2020 VA opinion to be highly probative, credible and competent medical evidence in this matter. The opinion is supported by a thorough rationale, has sound medical reasoning, and was provided by a trained medical profession. Further the VA examiner reviewed the Veteran’s medical history and claims file, and specifically considered the Veteran’s contentions and theories concerning service connection and his claimed disability. Accordingly, the January 2020 VA examination and medical opinion is found to carry significant probative weight. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion she reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Turning to the lay evidence of record, the Board sympathizes with the Veteran’s claims that his DMII is related to service. However, it is well established that a layperson without medical training is not qualified to render medical opinions regarding the etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as the origin or cause of DMI is not a simple question that can be determined based on mere personal observations by a lay person, the Veteran’s lay testimony is not competent to establish a medical etiology or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. As such, the Board finds the Veteran’s lay testimony concerning the etiology of his DMII are not afforded probative weight. Additionally, as indicated earlier in this decision, the Board notes that the evidence of record first notes a diagnosis for DMII in 2009, some 3 years after his separation from active duty service and well outside of the period for presumptive service connection for such disabilities as chronic diseases manifested to a compensable degree within the first post-service year. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). In weighing the entire evidence of record, including the Veteran’s lay statements balanced against the January 2020 examination and medical opinion, including service and outpatient treatment records that fail to establish a nexus between the Veteran’s current disability and service, on either a direct, secondary or presumptive basis, the Board finds that the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran’s DMII was not incurred in or aggravated by the Veteran’s military service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.