Citation Nr: 21012268 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-30 655 DATE: March 4, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected bilateral pes planus is denied. Entitlement to service connection for hallux valgus, hammertoes, degenerative joint disease, and calcaneal spurs, as aggravated by service-connected pes planus is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s bilateral pes planus has been manifested by no worse than moderate symptomology with pain on manipulation and use of the feet. 2. The preponderance of the evidence weighs against finding that the Veteran’s hallux valgus, hammertoes, degenerative joint disease, and calcaneal spurs was aggravated beyond its natural progression by his service-connected pes planus. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an initial evaluation in excess of 10 percent disabling for service-connected bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276 (2018). 2. The criteria for establishing entitlement to service connection for hallux valgus, hammertoes, degenerative joint disease, and calcaneal spurs, as aggravated by service-connected pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1951 to December 1953 and in the United States Army from September 1955 to May 1973. Regrettably, the Veteran passed away in January 2013. The Appellant is his surviving spouse. Pursuant to a December 2018 Board decision, this matter was remanded for additional development to include obtaining an addendum VA opinion. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. The Board observes that the Appellant’s appeal previously included a claim of entitlement to service connection for bilateral hearing loss. Pursuant to a June 2020 rating decision, service connection was granted for bilateral otitis media (previously claimed as bilateral hearing loss) and assigned a non-compensable evaluation, effective February 24, 2011. Considering the above, that claim is no longer before the Board on appeal and will not be addressed in this decision. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2018). The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.1, 4.10 (2018). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims 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). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness which causes additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40 (2018); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45 (2018). Additionally, evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2018). 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 the symptomatology of the other condition. Id.; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected bilateral pes planus The Appellant is seeking an initial evaluation in excess of 10 percent disabling for the Veteran’s service-connected bilateral pes planus. As discussed in more detail below, the preponderance of the evidence is against his claim. The Veteran’s bilateral pes planus has been evaluated as 10 percent disabling pursuant to Diagnostic Code 5276. See 38 C.F.R. § 4.71a (2018). Under Diagnostic Code 5276, an evaluation of 10 percent disabling is assigned for either bilateral or unilateral pes planus where symptoms are moderate; 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. Where pes planus is severe; with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities a 20 percent evaluation is assigned for unilateral and a 30 percent evaluation is assigned for bilateral pes planus. For pes planus that is pronounced; 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, a 30 percent evaluation is assigned for unilateral and a 50 percent evaluation is assigned for bilateral pes planus. 38 C.F.R. § 4.71a (2018). In this case, the Veteran has been afforded multiple VA examinations. In August 2011, the VA examination report documented current diagnoses of bilateral pes planus, hallux valgus, hammertoes, degenerative joint disease of the first and fifth metatarsophalangeal joints, and inferior calcaneal spur. During the clinical interview, he reported constant pain in the bilateral feet and toes. The pain was localized and described as burning, aching, sharp, and sticking. It rated as a 7 on a 10-point scale. Pain was exacerbated by physical activity. Swelling and tenderness occurred with prolonged walking and standing. Rest provided some pain relief. No residual symptoms were reported due to a prior surgical repair of a left hammer toe. Functional impairment was described as pain with deformity of the toes. A physical examination of the right foot revealed tenderness, painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness and instability. Active motion was observed in the metatarsophalangeal joint of the right great toe. Slight tenderness to palpation of the plantar surface of the left foot was indicated. Weight bearing of the Achilles tendon revealed normal alignment, bilaterally. Non-weight bearing was also normal. Slight valgus was observed bilaterally. It was relieved with manipulation. Evidence of claw feet was noted. The contraction and shortening of the plantar fascia on the right foot was described as moderate. No tenderness to palpitation of the metatarsal heads of the left foot was indicated. Conversely, mild tenderness impacted the right foot. Dorsiflexion of all the toes on the right foot produced pain. No pain was observed as to the left foot. Favorable findings of hammer toes and hallux valgus was observed, bilaterally. No limitation of motion with standing and walking was deemed causally related to hallux rigidus. Support shoes were not required. X-ray films of the right foot revealed bunions and destruction in the distal end of the 5th metatarsal with the calcaneal spur. As to the left foot, bone loss in the distal end of the 5th metatarsal with degenerative joint disease at the first metatarsophalangeal joint and bunion formation and inferior calcaneal spur. Objective findings of pes planus, hallux valgus, hammer toes of the bilateral feet, status post repair of the right foot. Following the clinical evaluation, the examiner opined that it is at least as likely as not that the Veteran’s experience of pes planus is a continuation of in-service treatment for the same condition. The opinion noted that there was no indication of in-service correction. Additionally, the examiner opined that it is less likely than not that the Veteran’s other foot conditions were causally related to active service. In August 2015, another VA examiner opined that it is less likely as not that the Veteran’s hallux valgus, hammertoes, degenerative joint disease, and calcaneal spurs were incurred in service or otherwise related to his service-connected pes planus. In reaching the stated conclusion, the examiner explained that the Veteran’s service treatment records noted pes planus, calluses and corns of the feet only. Periodic physical examinations revealed no evidence of a foot disorder, to include hallux valgus, hammertoes, degenerative joint disease, or calcaneal spurs during active service. With respect to secondary service connection, the examiner explained that medical literature does not support a nexus between the Veteran’s hallux valgus, hammertoes, degenerative joint disease, and calcaneal spurs and his service-connected pes planus. Pursuant to a December 2018 Board remand decision, the claim was remanded for an addendum opinion to assess the current severity of the Veteran’s service-connected pes planus and the possibility of aggravation of his other bilateral foot conditions. According an addendum VA opinion was obtained in November 2019. In rendering an opinion, the examiner intimated an inability to offer an opinion as to the current severity of the Veteran’s bilateral pes planus at the time of his death. Specifically, it was deemed medically impossible to differentiate between symptoms and functional limitations attributable to the Veteran’s service-connected pes planus and his nonservice-connected foot disorders. In support of this findings, the examiner noted a significant overlap in symptomatology which precluded symptom distinction without speculation. In addition, the examiner acknowledged that the August 2011 VA examination revealed current diagnoses of bilateral pes planus, hallux valgus, hammertoes, degenerative joint disease on the first and fifth metatarsophalangeal joints and inferior calcaneal spurs. At that time, only the Veteran’s pes planus was deemed causally related to active service. On subsequent examination in August 2015, another examiner opined it is less likely than not that the Veteran’s hallux valgus, hammertoes, degenerative joint disease and calcaneal spurs were causally related to his service-connected pes planus. The supportive rationale noted that service treatment records confirmed the presence of pes planus, calluses and corns on the bilateral feet only. Thereafter, periodic examinations made no reference to any additional bilateral foot disorders. Moreover, review of the medical literature did not support a causal linkage between the Veteran’s non-service-connected foot conditions and his service-connected pes planus, to include on a secondary basis. Similarly, given that none of the aforementioned conditions were present prior to the initial diagnosis of bilateral pes planus, it is not possible for a secondary connection due to aggravation. Thus, the examiner opined that it is less likely than not that the Veteran’s claimed foot disorders, to include hallux valgus, hammertoes, degenerative joint disease, and calcaneal spurs were aggravated beyond their natural progression by the Veteran’s service-connected bilateral pes planus. In June 2020, an additional opinion was rendered. The examiner fully considered the evidence of record, to include the Board’s remand directives, prior VA examinations, the Veteran’s self-reported history and subjective complaints. no basis to offer additional losses of function or motion for active/passive motion or weight-bearing/non-weight bearing. Considering the above, no opinion was offered due to an inability to access the degree of functional loss or loss of range of motion within the aforementioned situations. A non-speculative opinion was deemed impossible due to the lack of general knowledge among the medical community at large and an inability to directly observe the current status of the Veteran’s bilateral foot condition. In making all determinations, the Board has fully considered all medical evidence and the lay assertions of record. It also acknowledges the Appellant’s competence to report on the Veteran’s observable symptoms and notes that such statements are generally deemed credible to the extent that they articulate a subjective belief that a higher evaluation is warranted. In this case, however, the lay assertions are outweighed by competent and credible medical evidence which evaluated the true extent of his bilateral foot impairment to include consideration of his contentions as to worsening symptoms. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. On review of the record, the Board finds that the evidence does not support a higher evaluation for any point during the appeal period. As noted above, the claim is for a higher evaluation of 20 percent disabling. An evaluation of 20 percent disabling is warranted for unilateral severe pes planus; with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent evaluation is warranted for objective evidence of the noted symptoms, bilaterally. As the medical evidence is silent for the required symptomology, a higher evaluation is inappropriate. While the Board is sympathetic to the Appellant’s subjective belief that the Veteran’s symptoms warranted a higher evaluation, the evidence of record does not support his assertion. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to an initial evaluation in excess of 10 percent disabling for service-connected bilateral pes planus must be denied. Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (2014); 38 C.F.R. §§ 3.303 (a), 3.304 (2018). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2018). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2018). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 2. Entitlement to service connection for hallux valgus, hammertoes, degenerative joint disease, and calcaneal spurs, as aggravated by service-connected pes planus The Appellant asserts entitlement to service connection for hallux valgus, hammertoes, degenerative joint disease, and calcaneal spurs, as aggravated by service-connected pes planus. As discussed in more detail below, the preponderance of the evidence is against the claim. As a preliminary matter, the Board incorporates by reference the arguments noted in Section One. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Generally, the Appellant is presumed competent to report on the onset of current symptoms, their impact on daily living and employment, and such reporting is deemed credible. However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the instant case, there is no evidence that Appellant possesses the required training to diagnose a bilateral foot condition; or opine as to its etiology. To the extent his statements may be competent, the Board ultimately assigns greater probative weight to the medical evidence of record, to include opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Further, mere conclusory or generalized lay assertions that an in- service event or illness caused a current disability are insufficient to establish nexus in the absence of competent medical evidence. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As previously indicated, post-service treatment records are largely for any sufficient basis to assume a causal linkage between the Veteran’s diagnosis of hallux valgus, hammertoes, degenerative joint disease, and calcaneal spurs and his service-connected pes planus, to include as due to aggravation. Moreover, the VA examiner noted that the Veteran’s diagnosis of pes planus predated discovery of his additional bilateral foot conditions. Therefore, it was not possible to equate their etiology to aggravation by his service-connected pes planus. While the Board is sympathetic to the Appellant’s subjective belief that the Veteran’s bilateral foot conditions were secondarily related to his service-connected pes planus, the medical evidence does not support the contention. For the foregoing reasons, the preponderance of the evidence weighs against a finding of service connection for a hallux valgus, hammertoes, degenerative joint disease, and calcaneal spurs as aggravated by service-connected pes planus. Therefore, as the benefit-of the-doubt doctrine is not applicable, the Appellant’s claim must be denied. See 38. U.S.C. § 5107(b) (2014); 38 C.F.R. § 3.102 (2018); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, Associate 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.