Citation Nr: 21025435 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-05 071 DATE: April 28, 2021 ORDER Entitlement to a rating, for accrued benefits purposes, in excess of 30 percent for bilateral pes planus prior to September 12, 2012 is denied. Entitlement to a rating, for accrued benefits purposes, of 50 percent for bilateral pes planus prior from September 12, 2012 is granted. REMANDED Entitlement to a rating, for accrued benefits purposes, in excess of 10 percent from April 15, 2010 and in excess of 20 percent from December 8, 2015 for degenerative disease of the lumbar spine is remanded. Entitlement to a rating, for accrued benefits purposes, in excess of 10 percent for status post fracture, right tibia and fibula, is remanded. Entitlement to service connection, for accrued benefits purposes, for a left leg condition (claimed as bilateral legs) is remanded. Entitlement to total disability based on individual unemployability (TDIU), for accrued benefits purposes, is remanded. FINDINGS OF FACT 1. Prior to September 12, 2012, the Veteran’s bilateral pes planus manifested with pain, but no symptoms such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo achilles on manipulation. 2. From September 12, 2012, the Veteran’s bilateral pes planus manifested with variable symptoms, including extreme tenderness and marked pronation, more nearly approximating a pronounced disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for bilateral pes planus prior to September 12, 2012 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5276 (2020). 2. The criteria for a disability rating of 50 percent, but no greater, for bilateral pes planus, from September 12, 2012 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5276 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1971 to May 1973. This appeal to the Board arose from September 2011 and May 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in August 2020. An October 2020 Board order dismissed the claims for increased rating for pes planus, degenerative disease of the spine, status post fracture of the right tibia and fibula, and the claim for service connection for a left leg condition, because of the Veteran’s death. The appellant filed a timely substitution request in December 2020, which the RO granted in January 2021. The Board notes that in written correspondence of November 2014, the Veteran, through counsel, withdrew his appeal for entitlement to a disability rating in excess of 20 percent for scars, status post fracture right tibia and fibula. This issue was not appealed to the Board. Additionally, portions of the rating schedule addressing the musculoskeletal system, including diagnostic code 5262 (tibia and fibula, impairment of), were revised effective February 7, 2021. Considering the Veteran died before these changes were effective, the Board will consider the Veteran’s claim that has been rated under diagnostic code 5262 under the old criteria. See 38 U.S.C. § 5110(g) (2012). INCREASED RATING 1. Entitlement to a rating, for accrued benefits purposes, in excess of 30 percent for bilateral pes planus Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38C.F.R. Part 4 . When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38C.F.R. §4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). DC 5276 provides ratings for acquired flatfoot. Mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensable. 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 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. In treatment notes from May 2010, the Veteran reported his feet had been hurting for years and just seemed to be getting worse. After filing a claim for increased rating in April 2010, the Veteran underwent three VA foot examinations: in August 2010, September 2012, and December 2015. During the August 2010 examination, the Veteran reported aching, crushing, and sharp pain at a level of five out of ten. The pain could be exacerbated by physical activity and stress and was relieved spontaneously. At the time of pain, he could continue normal activities. At rest, and while standing or walking, he had pain, weakness, stiffness, swelling, and fatigue. The Veteran reported tingling sensations of the feet. Physical examination of both feet revealed no tenderness, painful motion, weakness, edema, heat, redness, instability, atrophy, or disturbed circulation. Neither foot showed forefoot/midfoot mal-alignment, deformity, hallux valgus or rigidus. He was able to stand for 15 to 30 minutes and required shoe inserts, but not orthopedic shoes, corrective shoes, arch supports, foot supports, or build-up of the shoes. The Veteran’s symptoms and pain were not relieved by the shoe inserts. The examiner noted the objective factor was pes planus on examination and the subjective factor was pain with walking. During the September 2012 examination, the Veteran reported pain on use and manipulation of both feet. Pain was accentuated on manipulation. Indication of swelling on use and characteristic calluses were also noted. The Veteran’s symptoms were relieved by arch supports (or built up shoes or orthotics). Extreme tenderness of the plantar surface bilaterally was also noted. This was not improved by orthopedic shoes or appliances. No objective evidence of marked deformity or marked pronation of either foot was found. The weight bearing line did not fall over or medial to the great toe. The Veteran did not have inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation. The examiner noted the Veteran’s flatfoot condition did not impact his ability to work. At the time of the December 2015 VA examination, the Veteran reported the condition had gotten worse. He explained it would flare up and he would have to go somewhere and sit down. The Veteran described the pain as “unbelievable pain.” The Veteran reported functional impairment of being unable to walk sometimes and having to use walking crutches. Pain on use of the feet, but not on manipulation was noted. No swelling on use or characteristic calluses were indicated. It was noted the Veteran had not used any arch supports, built up shoes, or orthotics. Extreme tenderness of plantar surfaces was not found. The Veteran had decreased longitudinal arch height of both feet on weight bearing. There was objective evidence of marked deformity of both feet and marked pronation of both feet. For both feet, the weight bearing line fell over or medial to the great toe. The Veteran did not have inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon. The examiner noted there was pain upon examination and functional loss of disturbance of locomotion bilaterally. The examiner indicated there was not pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups when the feet were used repeatedly over a period of time. However, there was difficulty walking during flare-ups or when the feet were used repeatedly over a period of time. It was noted the Veteran occasionally used crutches as a normal mode of locomotion, although occasional locomotion by other methods may have been possible. The examiner noted the functional impact of the bilateral pes planus was difficulty walking. Prior to September 12, 2012 Prior to September 12, 2012, there is no evidence of record to suggest the Veteran’s disability more nearly approximates a 50 percent rating for bilateral pes planus. While the Veteran reported increased pain, physical examination of both feet in August 2010 revealed no tenderness, painful motion, weakness, edema, heat, redness, instability, atrophy, or disturbed circulation. Neither foot showed forefoot/midfoot mal-alignment, deformity, hallux valgus or rigidus. None of the symptoms, such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement or severe spasm of the tendo achilles on manipulation, are noted in the examination, or otherwise, by the Veteran. While the August 2010 examiner indicated the Veteran required shoe inserts, but not orthopedic shoes, corrective shoes, arch supports, foot supports, or build-up of the shoes, he also indicated that the Veteran’s symptoms and pain were not relieved by the shoe inserts, suggesting that the symptoms he suffered would not be further relieved by orthopedic shoes, corrective shoes, arch supports, foot supports, or build-up of the shoes. However, considering the symptoms experienced at the time did not rise to the level of pronounced flatfoot, a higher rating is not warranted. From September 12, 2012 The September 2012 examination report reflects some, but not all, symptoms considered for both a 30 percent rating (e.g. pain on manipulation and use accentuated), and a 50 percent rating (e.g. extreme tenderness of plantar surfaces of the feet). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In consideration of the extreme tenderness, and the examiner’s finding that it was not relieved by orthopedic shoes or appliances, and resolving doubt in favor of the Veteran, the Board finds such symptomatology more nearly approximates a 50 percent rating for bilateral pes planus. While the December 2015 examination reflects different symptoms and notes the Veteran did not suffer from extreme tenderness at that time, the symptom of marked pronation, which is also a listed symptom of pronounced flatfoot, was noted. The December 2015 examiner indicated that the Veteran “has not used any arch supports, built up shoes, or orthotics.” It is unclear from the record whether the Veteran’s marked pronation of both feet would have been improved by orthopedic shoes or appliances and it is unclear why the Veteran was not using arch supports, built up shoes, or orthotics at the time of the December 2015 VA examination. However, the examiner noted that he did not review the eFolder, claims file, or other records or pertinent information. Therefore, it is possible the examiner was not aware that the record suggests the Veteran previously wore arch supports, built up shoes, or orthotics, and was prescribed arch supports while in service. Additionally, there were periods when the Veteran was homeless, suggesting the possibility of limited access to necessary treatment. Resolving doubt in favor of the Veteran, the Board finds the Veteran’s symptomatology continued to more nearly approximate a 50 percent rating for bilateral pes planus from the time of the September 2012 VA examination. REASONS FOR REMAND 1. Entitlement to a rating, for accrued benefits purposes, in excess of 10 percent from April 15, 2010 and in excess of 20 percent from December 8, 2015, for degenerative disease of the lumbar spine The August 2010, September 2012, and December 2015 VA examinations do not comply with Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). During the August 2010 VA examination, the Veteran reported that during flare ups he experienced functional impairment described as limitation of motion of the joint. The September 2012 examination indicated the Veteran reported flare-ups impacted the function of his thoracolumbar spine. He described the impact as pain. Neither examiner addressed the Veteran’s flare ups when assessing functional loss. Nor did they assess whether the Veteran’s pain with flare ups would limit the Veteran’s functional ability, and, if so, describe such loss in terms of range of motion. The December 2015 VA examination took place during a flare up. The examiner noted that pain significantly limited functional ability with repeated use over a period of time. She indicated she could not describe the functional loss in terms of range of motion because range of motion would vary depending on activities performed and pain experienced. Remand is necessary for an addendum opinion. The Veteran’s statement from September 2019 should also be considered. In that statement, he explained his back continued to get worse for years and he had to ask his girlfriend to assist him with putting his shoes on. He was not able to walk for any amount of time. He used a wheelchair to get around at the hospital when he sought treatment at the local VAMC. He also used a sit-down cart when grocery shopping, otherwise he would not have been able to do that himself. 2. Entitlement to a rating, for accrued benefits purposes, in excess of 10 percent for status post fracture, right tibia and fibula During the March 2013 VA examination, the Veteran reported his flare ups limited his walking and standing. At that time, his right knee flexion ended at 110 degrees and no objective evidence of painful motion was noted. Extension ended at zero degrees and there was no objective evidence of painful motion. Extension and flexion ranges of motion were the same after repetitive use testing. The examiner noted the Veteran had functional loss in the form of less movement than normal, pain on movement, deformity, and interference with sitting. The examiner found that the impact of the Veteran’s knee/lower leg condition was that it limited the Veteran’s ability to stand, walk, and lift heavy weights. The examiner noted the Veteran reported flare ups with pain in the right lower extremity. He had difficulty to stabilize the knee to move things due to occasional flareups of the knee. During the December 2015 VA examination, the Veteran’s range of motion of the right knee was abnormal with flexion of 0 to 100 degrees and extension of 100 to 0 degrees. However, this level of limitation of flexion and extension does not meet the criteria for a disability rating under diagnostic codes 5260 and 5261. The examiner noted the range of motion itself contributed to functional loss, specifically: difficulty with walking, lifting, and climbing. Objective evidence of tenderness along the anterior knee and deformity at mid aspect of the right leg was noted. Pain with weight bearing and on flexion and extension were noted. After performing repetitive use testing, the Veteran’s range of motion decreased further to flexion of zero to 95 and extension of 95 to 0. The examiner noted that pain caused functional loss. With respect to repeated use over time, the examiner indicated the Veteran’s pain significantly limited functional ability with repeated use over a period of time. She noted she was not able to describe this in terms of range of motion because the range of motion would vary depending on activities performed and pain experienced. Remand is necessary for an addendum opinion to further address the Veteran’s knee disability and obtain an estimate of functional loss. In his first examination, the Veteran mentioned difficulty stabilizing his knee during flare ups. Treatment notes from March 2015 reflect the Veteran was referred to physical medicine rehab because of “unstable gait and tenderness at the right knee.” At that time, the Veteran reported occasional giving out of his leg (one to two times per week). In his September 2019 statement, he also mentioned that he suffered several falls. He attributed this to his bilateral foot condition and left leg. He indicated he had been hospitalized for about seven days a year earlier and had been labeled a fall risk. Treatment notes from October 2017 reflect the Veteran had been noted as a “fall risk,” however, it is unclear why. While the objective testing from his March 2013 and December 2015 VA examinations did not show signs of lateral instability, these reported symptoms should be discussed as part of the clinician’s assessment of functional loss. Additionally, an estimate of additional loss of the Veteran’s range of motion should be provided. The December 2015 examiner noted the range of motion itself contributed to functional loss, specifically: difficulty with walking, lifting, and climbing. Objective evidence of tenderness along the anterior knee and deformity at mid aspect of the right leg was noted. Pain with weight bearing and on flexion and extension were noted. After performing repetitive use testing, the Veteran’s range of motion decreased further to flexion of zero to 95 and extension of 95 to 0. The examiner noted that pain caused functional loss. With respect to repeated use over time, the examiner indicated the Veteran’s pain significantly limited functional ability with repeated use over a period of time. She noted she was not able to describe this in terms of range of motion because the range of motion would vary depending on activities performed and pain experienced. The examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner suggested that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community, but rather that the range of motion would vary depending on the activities performed and pain experienced. An estimate of additional loss of the Veteran’s range of motion should be provided or the clinician must specify that speculation would be due to lack of knowledge within the medical community. 3. Entitlement to TDIU is remanded The Veteran submitted a timely notice of disagreement in October 2011 to a September 2011 rating decision, in which he indicated he requested an increased rating for degenerative disease of the lumbar spine, bilateral pes planus, and made a request for TDIU. However, the RO has not supplied a statement of the case addressing the issue of TDIU. A remand is required for the RO to issue a statement of the case addressing the TDIU claim. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 4. Entitlement to service connection for a left leg condition (claimed as bilateral legs) In his August 2014 brief, the Veteran’s representative explained that the Veteran’s March 2013 VA examination revealed a diminished range of motion of the left knee. Specifically, his flexion was limited to 110 degrees. He asserts that this may have represented a left knee disability; however, the examiner did not indicate a diagnosis. The attorney explained that the Veteran’s service connected right leg condition with limited range of motion and/or his service connected back condition, which was causing radiating pain down both of his legs, were affecting his left leg based on improper ambulation and gait, causing the limited range of motion in his left knee. The attorney requested a new VA examination to assess any left leg or knee condition and a medical opinion as to whether any left leg or knee condition was at least as likely as not related to military service on a direct or secondary basis. An examination was not conducted, but a VA medical opinion for secondary service connection was obtained in February 2016. The VA clinician found that the Veteran’s claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. He explained that the Veteran’s history of right tibia/fibula fracture was too remote to cause the current left knee disability, both remote in time and remote in location of the body. He further stated the Veteran’s proximal back condition would not cause a distal left knee condition. The February 2016 VA clinician did not provide a diagnosis of the Veteran’s left leg disability. It is unclear whether the clinician identified the Veteran’s left leg disability for himself based on a review of the file or if he reached his conclusions without knowing what the Veteran’s left leg disability was. Additionally, the clinician’s rationale does not address the points brought up by the Veteran’s representative. Treatment records reflect the Veteran complained of left knee and leg pain and problem lists note he was assessed with osteoarthrosis not otherwise specified and “pain in limb.” A treatment note from January 2002 indicates the Veteran was assessed with left knee pain and the plan included x-rays of the left knee. Similarly, VA treatment records from August 2003 reflect he was assessed with arthralgia and note “x-rays today.” However, the record does not include x-ray reports. Remand is necessary to obtain any outstanding relevant VA medical records and to obtain an addendum opinion that addresses the Veteran’s contentions and whether the Veteran’s left leg and/or knee disability was aggravated by any of his service-connected disabilities. REMANDED The matters are REMANDED for the following action: 1. Obtain any outstanding relevant VA medical records pertaining to the Veteran’s left leg/knee, including any imaging of the Veteran’s left leg or knee that may have been generated from visits in January 2002, August 2003, and April 2004. 2. Obtain an addendum opinion from a qualified clinician to assess the severity of the Veteran’s status post fracture right tibia and fibula disability. The examiner should provide an estimate of the additional impairment due to flare-ups based on the evidence of record, including the Veteran’s statements. While the clinician should review all the relevant evidence of record, his/her attention is invited to the following: in his first examination, the Veteran mentioned difficulty stabilizing his knee during flare ups. Treatment notes from March 2015 reflect the Veteran was referred to physical medicine rehab because of “unstable gait and tenderness at the right knee.” At that time, the Veteran reported occasional giving out of his leg (one to two times per week). In his September 2019 statement, he also mentioned that he suffered several falls. He attributed this to his bilateral foot condition and left leg. He indicated he had been hospitalized for about seven days a year earlier and had been labeled a fall risk. Treatment notes from October 2017 reflect the Veteran had been noted as a “fall risk,” however, it is unclear why. Obtain an addendum opinion from a qualified clinician to assess the severity of the Veteran’s degenerative disease of the lumbar spine. The clinician should provide an estimate of the additional impairment, prior to December 2015, due to flare-ups based on the evidence of record including the Veteran’s statements. The clinician should also provide a description of the functional loss in terms of range of motion from December 2015. If it is not possible to provide such measurements without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge. While the clinician should review all the relevant evidence of record, his/her attention is invited to the Veteran’s statement from September 2019 in which he explained his back continued to get worse for years and he had to ask his girlfriend to assist him with putting his shoes on. He was not able to walk for any amount of time. He used a wheelchair to get around at the hospital when he sought treatment at the local VAMC. He also used a sit-down cart when grocery shopping otherwise he would not have been able to do that himself. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left leg disability is at least as likely as not related to/proximately due to service-connected disability/aggravated beyond its natural progression by service-connected disability, including his right leg condition with limited range of motion and/or his service connected back condition, which was causing radiating pain down both of his legs. These conditions may have been affecting his left leg based on improper ambulation and gait, causing the limited range of motion in his left knee. The clinician should identify the Veteran’s left leg/knee disability, and specify a diagnosis. If there is not an underlying diagnosis, the clinician should consider whether the Veteran’s reported left knee and leg pain resulted in functional impairment. (continued next page) 3. Send the appellant a statement of the case that addresses the issue of TDIU. If the appellant perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Vemulapalli, 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.