Citation Nr: 21024178 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-58 204 DATE: April 22, 2021 ORDER An initial 10 percent rating, but no higher, for right foot injury status post partial stress fracture of 3rd metatarsal, well-healed, is granted. REMANDED Service connection for obstructive sleep apnea is remanded. Service connection for a left foot disorder is remanded. Service connection for a left knee disorder is remanded. Service connection for a left hip disorder is remanded. Service connection for a right hip disorder is remanded. FINDING OF FACT Throughout the period on appeal, the right foot disability was manifested by subjective complaints of chronic and moderate pain; objective findings demonstrated a moderate foot injury. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for right foot injury status post partial stress fracture of 3rd metatarsal, well-healed, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1981 to August 1985, including foreign service in Germany. For his meritorious service, the Veteran was awarded (among other decorations) the Army Service Ribbon and Overseas Service Ribbon. The Veteran testified during a March 2020 videoconference hearing. A transcript of this proceeding has been associated with the record. These appeals were previously remanded by the Board in May 2020 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Initial Rating The Veteran is currently pursuing a compensable initial rating for his right foot disability. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran has properly been rated under DC 5284 for other injuries of the foot. Portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021. However, the DC under which the Veteran is currently evaluated was unchanged, and no amendments were added under which the Veteran is more appropriately rated. Rather, a 10 percent rating is warranted upon evidence of the following: • Moderate injury to the foot. The words “moderate,” “moderately severe,” and “severe” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “severe” by VA examiners and others, 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 regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Additionally, VA’s General Counsel has determined that DC 5284 is a general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, depending on the nature of the foot injury, DC 5284 may involve limitation of motion. VAOPGCPREC 9-98. The evidence establishes that a 10 percent initial rating is warranted for the Veteran’s right foot disability. In March 2017, a VA examiner diagnosed the Veteran with degenerative arthritis of the right foot. At that time, the Veteran reported increased pain with swelling, blistering on the balls of his foot, and a burning sensation. However, the partial stress fracture of the 3rd metatarsal was described as “well-healed,” and did not cause the Veteran pain. Current sequelae were also denied. No additional foot disorders were diagnosed, although swelling of the lower extremities was also noted. Flare-ups were also reported. Pain was not noted on physical examination, as the Veteran had not been ambulating or weight-bearing for a period of time. Instead, his primary symptoms were identified as swelling, disturbance of locomotion, interference with standing, and lack of endurance. An opinion on the presence of pain, fatigability, weakness, or incoordination during flare-ups or with repetitive use was not provided. The Veteran required the occasional use of a cane and typically wore shoes without arch support. Nonetheless, the Veteran described limited ambulation due to pain. He next underwent VA examination in September 2020. At that time, he was diagnosed with both degenerative arthritis and a right foot injury status post partial stress fracture of the 3rd metatarsal. He indicated that his pain had not increased since the 2017 examination, and rated his pain as a three out of 10 daily. The pain was described as achy and “sometimes stabbing.” Numbness and tingling were denied, but pain increased with any weight-bearing activity. He treated his symptoms with over-the-counter medication, but did not use shoe inserts or solicit treatment with a podiatrist. No other symptoms or diagnoses were recorded. As such, the examiner classified the Veteran’s right foot disability as moderate in severity. Pain was not said to contribute to functional loss, including during flare-ups or with repetitive use. The examiner also denied that pain, fatigability, weakness, or incoordination would limit functional ability during flare-ups or with repetitive use. There was no objective evidence of pain during active range of motion, passive range of motion, during weight-bearing, or in nonweight-bearing. However, the Veteran required the constant use of a wheelchair or walker. VA treatment records spanning the period on appeal do not deviate from the above assessments to any notable degree. Collectively, these records document the Veteran’s reports of chronic right foot pain, without additional symptoms, diagnoses, or treatment. The Veteran has also offered competent testimony regarding the nature and severity of his symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see April 2017 Notice of Disagreement (NOD); November 2017 VA Form 9; March 2020 hearing transcript. These statements further establish the Veteran’s history of chronic right foot pain which worsens with prolonged movement. He also attributed significant weight gain to his disability, which was productive of limited mobility. Further, the Veteran argued that a separate award of service connection was warranted for the full scope of right foot disabilities noted in the record, rather than merely the right foot injury status post partial stress fracture of the 3rd metatarsal for which he is currently service-connected. In sum, the Veteran demonstrated a moderate foot injury during the period on appeal. During this time, he experienced chronic and moderate right foot pain which worsened with movement. Flare-ups were also reported, which were sometimes accompanied by such additional symptoms as swelling and burning. The Veteran required over-the-counter pain medication to assist with managing this symptom, and has shown the need for multiple assistive devices for ambulation. Nonetheless, he reported significantly decreased mobility due to his pain. Thus, the September 2020 VA examiner classified the Veteran’s disability as moderate in nature. The Board agrees, and finds that a 10 percent initial rating is warranted in this case. The Board has also considered whether a higher rating than 10 percent is warranted. However, the record does not establish a moderately severe disability picture during the period on appeal, as required for a 20 percent rating. Rather, multiple VA examiners have reported that the Veteran’s right foot injury status post partial stress fracture of the 3rd metatarsal—the only right foot disability for which he is currently service-connected—is well-healed and generally without residuals. Additional symptoms of fatigability, weakness, or incoordination, are not recorded in the record, to include that productive of functional impairment or observed during flare-ups or with repetitive use. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Thus, the Veteran’s impairment is limited to increased pain with prolonged use, though there is no indication that he requires assistance with the activities of daily living or significant medical intervention to assist with managing his symptom. Accordingly, he does not demonstrate a moderately severe foot injury, as required for a 20 percent rating under DC 5284. However, the Veteran has also requested consideration of his right foot degenerative arthritis, as diagnosed by both of his VA examiners. Specifically, he contends that his currently service-connected disabilities have contributed to his worsening obesity, which limits his mobility and thus causes or aggravates the right foot arthritis. See, e.g., March 2020 hearing transcript. A January 2017 VA General Counsel opinion concluded that indirect secondary service connection can be granted with obesity acting as an “intermediate step.” VAOPGCPREC 1-2017. Specifically, a grant is warranted (1) if the service-connected disability caused the veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if this subsequent disability would not have occurred but for obesity. Id. The relationship between obesity and arthritis has been assessed by multiple examiners during the pendency of this appeal. First, the March 2017 examiner concluded that the Veteran’s degenerative arthritis was not due to, related to, or secondary to his currently service-connected right foot disability. An accompanying rationale was not provided. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Subsequently, the September 2020 examiner noted that the Veteran was obese prior to his enlistment. Here, his current degenerative arthritis was not the result of his service-connected disability, but rather a “constellation of risk factors for arthritis [including] age, obesity . . . [and] genetics that predispose individuals to develop arthritis.” In this case, it was more likely than not that the Veteran’s obesity “affected the development” of his right foot degenerative arthritis. See also September 2020 left foot opinion (noting that obesity and age are the primary risk factors for degenerative arthritis; obesity increases pressure on weight-bearing joints; and obesity contributes to cytokine development, which heightens the inflammatory process); left hip opinion (noting that the Veteran was obese upon service entry; obesity is a separate entity from degenerative arthritis and unrelated to it; and medical literature fails to establish a link between the two); left knee opinion (noting that obesity represents one of the most important risk factors in the incidence and progression of osteoarthritis in weight-bearing joints; body weight influences the severity of osteoarthritis and obese individuals experience more severe symptoms; there is a suggested causation between obesity and osteoarthritis; and the effect of obesity on osteoarthritis is multifactorial); left knee and left foot opinions (noting that the risk factors for osteoarthritis are multifactorial and include obesity). Ultimately, the criteria warranting a distinct award of service connection for right foot degenerative arthritis are not met in this case. The competent medical evidence clearly shows that obesity is a risk factor in the development of arthritis and the severity of its symptoms. However, the evidence does not establish that the Veteran’s service-connected disabilities caused his obesity, or that the right foot arthritis would not have occurred but for the Veteran’s obesity. Rather, he was obese upon his service entry. Although his obesity may have worsened due to the lack of mobility related to his service-connected disabilities, it is only apparent that obesity may worsen the symptoms of arthritis. Critically, there is no evidence which suggests that the Veteran would not have developed the right foot arthritis but for his obesity, as required for a positive finding in this case. Rather, his obesity is simply one known risk factor in causing or aggravating his current symptoms. The Board acknowledges the Veteran’s contention that his obesity either caused or aggravated his right foot arthritis. However, he lacks the requisite training and expertise to offer a competent opinion regarding such a complex medical matter. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board does not find that the Veteran’s obesity was not a substantial factor in causing his right foot arthritis; rather, that the Veteran was obese prior to service (and thus prior to the onset of his current service-connected disabilities), and that it is not established that his right foot arthritis would not have developed but for his obesity. As these criteria are not met, the appeal cannot succeed on this basis. During the March 2020 hearing, the Veteran also argued that his original claim for service connection was for a “right foot injury,” such that consideration must be afforded to all right foot disorders noted in the record. See December 2016 claim. As per the Veteran’s testimony, he was also diagnosed with plantar and retrocalcaneal spurs during the March 2017 VA examination. However, there is absolutely no evidence that these spurs are directly related to service or secondarily related to a service-connected disability. In the absence of such evidence, a definitive nexus opinion is not warranted on this matter and the argument fails. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the service connection appeals. Historically, these appeals were remanded in May 2020 so that a series of VA nexus opinions could be obtained. In September 2020, some three dozen examination reports and nexus opinions were provided. Regrettably, these opinions are wholly inadequate upon which to assess the merits of these appeals, for the examiner’s failure to accurately assess the theories of entitlement as presented by the Veteran and the record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, a remand is required such that adequate opinions may be obtained. The matters are REMANDED for the following action: Obtain opinions addressing the questions below from a medical expert other than the September 2020 examiner.  If the reviewing examiner determines that the opinions requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate.  Schedule an in-person examination only if deemed necessary to answer the questions below.           The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.     The examiner(s) must explicitly address the following: (1) Identify all relevant disorders (i.e., sleep apnea or conditions of the left foot, left knee, or bilateral hips) demonstrated by the Veteran during the period on appeal. The left foot, left knee, and bilateral hip examiner(s) is instructed that pain productive of functional impairment constitutes a disability for VA purposes. If a diagnosis of arthritis is rendered, the examiner must identify the approximate onset of the condition. (2) For each diagnosed disorder, is it at least as likely as not (50 percent probability or more) that it began during a period of active duty service, was caused by service, or is otherwise related to service? The examiners must explicitly address the Veteran’s contention that he experienced multiple in-service illnesses and injuries (specifically, hypertension and injuries to the right knee and foot) which significantly limited his mobility. As a result, he gained significant weight during service. The Veteran contends that all conditions onset following the identified weight gain and have persisted since that time. The left foot, left knee, and bilateral hip examiner(s) should also address whether the Veteran’s in-service illnesses and injuries led to an altered gait, which contributed to the claimed disorders. These examiners must also address a March 2020 statement from the Veteran’s sister (a nurse) regarding the in-service onset of his symptoms, and the Veteran’s contention that his pain onset during service and has persisted since that time. (3) For each diagnosed disorder, is it at least as likely as not that it was caused or aggravated by a service-connected disability or the treatment thereof? The sleep apnea examiner need only consider the relationship between the claimed disorder and the Veteran’s service-connected hypertension. The left foot, left knee, and bilateral hip examiner(s) need only consider the relationship between the claimed disorders and the Veteran’s service-connected right foot and knee disabilities, to include a related altered gait AND limited mobility. The examiner(s) are requested to provide each of the requested opinions in one document, so as to avoid multiple uploads. In formulating their opinions, the examiners are advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.  [CONTINUED ON NEXT PAGE] A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.