Citation Nr: 21015272 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-08 952 DATE: March 17, 2021 REMANDED Entitlement to service connection for a right foot disability other than pes planus and arthritis is remanded. Entitlement to an initial compensable rating prior to August 13, 2020, and a rating in excess of 10 percent since August 13, 2020 for service-connected bilateral pes planus with arthritis and with hammertoes of the left foot is remanded. Entitlement to initial compensable ratings for service-connected periostitis of each tibia is remanded. Entitlement to initial compensable ratings prior to August 13, 2020, and ratings in excess of 10 percent since August 13, 2020 for service-connected osteoarthritis of each ankle is remanded. REASONS FOR REMAND The Veteran had active service from March 1986 to March 2012. This current matter comes to the Board of Veterans’ Appeals (Board) from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In February 2020, the Board remanded this case for further development. Unfortunately, for reasons outlined herein, it is necessary to remand this case again. The Board regrets the additional delay. In a September 2020 rating decision, the RO increased the ratings for the service-connected bilateral pes planus and bilateral ankle osteoarthritis from zero percent to 10 percent disabling, effective August 13, 2020. As 10 percent does not represent the highest possible rating for these disabilities, these issues remain on appeal before the Board. Entitlement to service connection for a right foot disability other than pes planus and arthritis Entitlement to an initial compensable rating prior to August 13, 2020 and a rating in excess of 10 percent since August 13, 2020 for service-connected bilateral pes planus with arthritis and with hammertoes of the left foot The Veteran contends he has a right foot disability, other than pes planus and arthritis, that is related to his military service. Specifically, the Veteran has submitted private treatment records showing a diagnosis of right foot peroneal tendonitis. See January 2017 Private Treatment Records. Service treatment records (STRs) indicate multiple right foot complaints, including treatment in April 1996 and May 1996 for right foot contusions following a 90-pound weight being dropped on the Veteran’s foot. On an August 2020 VA examination report, the examiner noted that the Veteran has hammertoes and arthritis, in addition to pes planus. She further stated that additional conditions were found which are directly due to, or related to, the service-connected diagnosis, i.e., a progression or worsening of pes planus. It is not clear as to whether the examiner’s reference to additional conditions only relates to arthritis and hammertoes. She did not address private treatment records, or the Veteran’s reports of his diagnosis of right foot peroneal tendonitis. She also did not address the right foot contusion documented in the Veteran’s STRs. The RO requested an addendum medical opinion for the examiner to address these issues. In that addendum, the examiner opined that any currently diagnosed conditions other than pes planus and arthritis are related to the Veteran’s service. However, she did not discuss whether right foot peroneal tendonitis and right foot contusion are included in those conditions. As such, it is necessary to get a more clarifying opinion for a VA examiner to address these issues. It is also necessary to know whether they are distinct and separate diagnoses, or symptoms associated with the service-connected bilateral pes planus with arthritis. The examiner’s opinion somewhat suggests that there could be an overlapping of symptoms. For instance, she noted that “pes planus foot posture was associated with increased odds of hammertoes and overlapping.” She also indicated that the Veteran’s foot disabilities had progressed or worsened. Thus, a remand is necessary for the Veteran to undergo another VA examination for these issues to be clarified. The Veteran also testified at the December 2019 Board hearing that he was privately treated for his foot disabilities at the Andrews Institute and Emerald Coast Podiatry office. The Board notes that the RO reached out to the Veteran in February 2020 for him to submit information related to the treatment he received at those private facilities, but he did not respond. Nonetheless, as the appeal is being remanded for other development, the Veteran will have another opportunity to submit and/or identify any private treatment records relevant to his claims. The Veteran is also advised that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Entitlement to initial compensable ratings for the service-connected periostitis of each tibia The Veteran has noncompensable ratings for his service-connected bilateral tibia periostitis (claimed as shin splints) as of April 1, 2012, pursuant to Diagnostic Code 5262, impairment of tibia and fibula. He asserts that this disability has significantly worsened in the past few years. See December 2019 Board Hearing Transcript. As such, he is seeking compensable ratings. The rating schedule provides for a 10 percent rating with malunion with slight knee or ankle disability; a 20 percent rating with malunion with moderate knee or ankle disability; a 30 percent rating with malunion with marked knee or ankle disability; and, a 40 percent rating with nonunion of, with loose motion, requiring brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Diagnostic Code 5262, tibia and fibula impairment was revised effective February 7, 2021. For medial tibial stress syndrome (MTSS), or shin splints, a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities; a 10 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; a 20 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; a 30 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Malunion of the tibia and fibula is to be evaluated under Diagnostic Codes 5256, 5257, 5260, 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Nonunion of the tibia and fibula, with loose motion, requiring brace, warrants a 40 percent rating. On an August 2020 VA examination report, the examiner confirmed the Veteran’s prior diagnosis of bilateral tibia periostitis and indicated that the Veteran’s disability had progressed or worsened. She noted that the Veteran experienced pain and stiffness. The examiner indicated that the Veteran has shin splints that affect both sides. She remarked that the Veteran’s left and right tibia periostitis have affected his biomechanics, resulting in an altered gait and/or shift in weight on weight bearing joints, including the left knee. As previously stated, the criteria for rating this disability have changed. As such, it is necessary for the Veteran to undergo another VA examination that considers the revised rating criteria. Thus, a remand is necessary for this examination to be scheduled and conducted. Entitlement to initial compensable ratings prior to August 13, 2020 and ratings in excess of 10 percent since August 13, 2020 for service-connected osteoarthritis of each ankle The Veteran contends that the severity of these disabilities warrants higher ratings. Specifically, he reports that he is in constant pain and that his condition has worsened significantly in the past few years. See December 2019 Board Hearing Transcript. He further reported that he experiences flare-ups and that his ankles swell up during the day. The Veteran indicated that he sought private treatment for his worsening symptoms. A private record from the Andrews Institute indicates further degenerative changes to the Veteran’s ankles. See October 2018 Private Treatment Record. As already indicated herein, the Veteran stated that there are outstanding private treatment records related to this disability, which need to be reviewed by a VA examiner. On an August 2020 VA examination report, an examiner confirmed that the Veteran’s condition had progressed or worsened. The Veteran reported having bilateral ankle flare-ups, resulting in stiffness and tenderness. However, the examination was not conducted during a flare-up. The examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-up. She remarked that the Veteran had bilateral mild to moderate osteoarthritis in both feet and ankles. Although the examiner indicated that pain was not noted on examination, the Veteran reported that he has been in constant pain in the past few years. The Veteran’s report of constant pain was not considered at the examination. As the Veteran has outstanding private treatment records for this disability, which were not considered in the examiner’s analysis, and as the Veteran was not examined during a flare-up, or had his reports of symptoms such as pain considered, it is necessary to schedule the Veteran for another VA examination to account for his reports of symptoms related to his bilateral ankle disability. Accordingly, these matters are REMANDED for the following action: 1. Identify and obtain any pertinent outstanding VA and private treatment records—to include records from the Andrews Institute and Emerald Coast Podiatry—and associate them with the claims file. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Then, schedule the Veteran for an examination with an appropriate VA clinician to determine the nature and etiology of his right foot disability (other than pes planus and arthritis). The entire claims file must be made available to, and be reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported. Following a review of the records as well as an examination of the Veteran, the examiner is asked to: a. Identify/diagnose any right foot disability other than pes planus and arthritis that presently exists or that has existed during the appeal period—to include the finding of right foot peroneal tendonitis. b. Opine as to whether it is as likely as not (i.e., at least a 50 percent probability or greater) that any such diagnosed right foot disability had its onset in, or is otherwise related to, his military service or any incident therein. In answering this question, the examiner should consider and address the Veteran’s service treatment records showing treatment for a right foot contusion. The Veteran is competent to report his symptoms and history and such reports must be acknowledged and considered in formulating any opinion requested herein. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 3. Also, accord the Veteran an appropriate VA examination to determine the severity of his service-connected bilateral pes planus with arthritis and with hammertoes of the left foot. The entire claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings found on examination to be associated with this disability must be reported in detail. The examiner is asked to specify any additional symptoms and/or diagnoses associated with this disability, i.e., a progression/worsening of bilateral pes planus with arthritis and with hammertoes of the left foot. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 4. Also, accord the Veteran an appropriate VA examination to determine the severity of his service-connected periostitis of each tibia. The entire claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. The revised DBQ (effective February 7, 2021) must be utilized for the relevant diagnostic code(s). Any indicated tests and studies must be accomplished, and all clinical findings found on examination to be associated with this disability must be reported in detail. The examiner should comment on the period of time the Veteran has required treatment, to include whether it is less than or more than 12 consecutive months, and whether the disability has been unresponsive to either shoe orthotics or other conservative treatment, and whether this disability has been unresponsive to surgery. The examiner should also comment on whether there is nonunion of the tibia and fibula, with loose motion, requiring a brace. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 5. Also, accord the Veteran an appropriate VA examination to determine the severity of his service-connected osteoarthritis of each ankle. The entire claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings found on examination to be associated with this disability must be reported in detail. The examiner should test the ranges of motion and pain in the Veteran’s ankles in active and passive motion and in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Additionally, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of the pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding the Veteran’s flare-ups by alternative means. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.