Citation Nr: 21025831 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-44 943 DATE: April 29, 2021 ORDER A rating in excess of 30 percent for bilateral pes planus prior January 15, 2021, and in excess of 50 percent thereafter, is denied. Service connection for a left ear hearing loss disability is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to January 15, 2021, and in excess of 40 percent thereafter for right knee patellofemoral syndrome is remanded. Entitlement to a rating in excess of 10 percent prior to January 15, 2021, and in excess of 30 percent thereafter for patellofemoral pain syndrome is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Prior January 15, 2021, the evidence shows the Veteran’s pes planus manifested most closely to the criteria for a 30 percent rating. 2. Beginning January 15, 2021, the evidence shows the Veteran’s pes planus manifested most closely to the criteria for a 50 percent rating. 3. The preponderance of the evidence is against a finding that the Veteran’s current left ear hearing loss is related to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for bilateral pes planus prior January 15, 2021, and in excess of 50 percent thereafter, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Code (DC) 5276. 2. The criteria for service connection of left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1986 to September 1995. 1. A rating in excess of 30 percent for bilateral pes planus prior January 15, 2021, and in excess of 50 percent thereafter The Veteran contends he is entitled to a higher rating for his pes planus. Beginning January 15, 2021, the Veteran receives a 50 percent rating for his pes planus. As 50 percent is the highest rating for flatfoot (pes planus), the Board’s decision will focus on the period prior to January 15, 2021. The Veteran’s pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Board finds the preponderance of the evidence is against a rating in excess of 30 percent for pes planus prior to January 15, 2021. The October 2014 examiner recorded pain on use, decreased longitudinal arch height, marked deformity, marked pronation, and use of arch support. However, the examiner did not find the Veteran had pain on manipulation, swelling, characteristic callouses, extreme tenderness of the plantar surfaces, inward bowing of the Achilles tendon, or inward displacement and spasm of the Achilles tendon. While the Veteran had one symptom (marked pronation) enumerated under the 50 percent criteria, his symptoms of marked deformity and pain on use fit within the criteria for a 30 percent rating, and the other symptoms identified in the 30 percent criteria – pain on manipulation, swelling and characteristic callouses – were absent from the Veteran’s disability picture. Accordingly, the Board finds the 30 percent rating most appropriate to capture the severity of the symptom of marked pronation along with the less severe symptom presentation. In his August 2016 Form 9, the Veteran indicated that his foot condition had worsened in the prior 12 months but did not provide any specific information on symptoms or functional impairment. During September 2011 treatment, the Veteran reported foot pain and not tolerating shoes at work. Treatment records are otherwise silent for treatment of the feet, particularly in regard to extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis, or other symptoms suggestive of pronounced disability. The Board acknowledges the Veteran’s lay reports of symptoms, such as daily foot pain and numbness in the toes, and that pain caused functional loss after prolonged walking and during flare-ups. However, even considering the Veteran’s lay reports of symptoms and functional loss, the evidence does not show a disability picture more nearly approximating pronounced bilateral acquired flatfoot prior to January 15, 2021. Additionally, as Diagnostic Code 5276 specifically contemplates the diagnosis of pes planus (flatfoot), consideration of other diagnostic codes is not appropriate. See Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). In conclusion, the Board finds the preponderance of the evidence is against a rating in excess of 30 percent for pes planus prior to January 15, 2021. Beginning January 15, 2021, the Veteran is in receipt of the maximum 50 percent rating for pes planus. The Veteran has not claimed and the evidence does not suggest that an extraschedular rating is warranted. See 38 C.F.R. § 3.321. Therefore, a rating in excess of 50 percent for pes planus beginning January 5, 2021, is not warranted. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Service connection for left ear hearing loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” – also known as the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to describe symptoms observable to his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the evidence, the Board finds the criteria for service connection for left ear hearing loss have not been met. 38 C.F.R. § 3.303. First, the evidence shows a current disability. August 2016 private evaluation, April 2018 VA treatment, and October 2020 VA examination revealed 45 or greater decibels at the 4,000 Hertz frequency in the left ear. Thus, the evidence demonstrates current hearing loss for VA disability purposes and satisfies the first element of service connection. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.385. Next, the evidence suggests the Veteran may have had noise exposure in service, but the weight of the evidence is against finding left ear hearing loss in service, within a year of separation, or related to service. The Veteran’s DD Form 214 shows his military occupation was wheeled vehicle repairer, which presumably involved noise exposure. However, his service treatment records show normal hearing in the left ear. While he reported right ear hearing loss in August 1989, service treatment records do not show complaints of or treatment for left ear hearing loss. During the September 2014 VA examination, the Veteran’s left ear hearing thresholds were abnormal only at 4,000 Hertz and did not yet reach the level of VA disability. The October 2020 examiner opened that left ear hearing loss was less likely than not caused by service. The examiner noted that the Veteran had normal hearing on service audiograms, there were no complaints or treatment for hearing loss during service or shortly after, and the first complaint or evidence of hearing loss was found in the record in 2014, 19 years after separation. The examiner explained that medical and scientific data does not support late onset hearing loss, long after exposure to loud noise. He noted the Veteran’s age at onset (48) and explained that age-related hearing loss has a gradual onset as a person grows older, is one of the most common conditions affecting older adults, and most often occurs equally in both ears. Although the September 2014 examination did not reveal hearing loss disability for VA purposes, the examiner also discussed normal aging as a factor related to hearing loss. The Board finds the October 2020 examiner’s opinion highly probative as it considered the relevant evidence of record, sourced medical literature, and provided rationale with an alternate cause for the Veteran’s hearing loss. The Veteran has not reported having hearing loss continuously since service, and there is no medical opinion attributing the Veteran’s hearing loss to his service. Therefore, the Board finds the weight of the evidence is against finding current left ear hearing loss is related to service. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to January 15, 2021, and in excess of 40 percent thereafter for right knee patellofemoral syndrome is remanded. 2. Entitlement to a rating in excess of 10 percent prior to January 15, 2021, and in excess of 30 percent thereafter for patellofemoral pain syndrome is remanded. During the October 2014 knee examination, the Veteran endorsed flare-ups in knee symptoms. The examiner noted that pain could significantly limit functional ability during a flare-up, but because the examination was not being conducted during a flare-up, he was unable to provide measurements without resorting to speculation. In Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the Court of Appeals for Veterans Claims (Court) held that an examiner must try to ascertain information about flare-ups through alternative means, including asking the Veteran to describe additional functional loss and estimating based on his reports, and only then after considering all the lay and medical evidence, can the examiner explain why he or she cannot render an opinion. The Veteran did not report flare-ups during the January 2021 knee examination. Therefore, the 2021 examiner did not address functional loss during flare-ups. Accordingly, a medical opinion is needed to adequately consider the evidence and address functional loss associated with flare-ups reported during the October 2014 examination. Moreover, the Court in Correia found that for disabilities rated based on limitation of motion, an examination is inadequate if it does not consider “active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint” in accordance with 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The October 2014 examiner did not address passive, weight-bearing, or non-weight-bearing motion, and while the January 2021 examiner found passive motion was equal to active motion and that the Veteran did not experience pain with non-weight-bearing, the examiner did not explain how pain with weight-bearing could affect the Veteran’s knee motion. Thus, the Agency of Original Jurisdiction should obtain an addendum medical opinion from the January 2021 examiner, if possible, or a new examination in compliance with Sharp and Correia and update any VA treatment records not already associated with the claims file. 3. Entitlement to service connection for right ear hearing loss is remanded. Similar to the left ear, the evidence shows current right ear hearing loss, and the October 2020 VA examiner provided a negative opinion finding current hearing loss was not related to service. However, as noted above, the Veteran complained of right ear hearing loss during service in August 1989. The VA examiner does not appear to have considered this evidence and instead found there were no complaints or treatment for hearing loss in service. As the opinion is based on an inaccurate factual premise, a new opinion should be obtained. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). 4. Entitlement to service connection for tinnitus is remanded. The September 2014 examiner found that the Veteran’s tinnitus was likely associated with hearing loss. Thus, the claim of service connection for tinnitus may be affected by the outcome of the right ear hearing loss claim and is remanded as intertwined. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Request an addendum opinion from the January 2021 examiner, if available, or schedule the Veteran for a new knee examination. The examiner should specifically address how pain could affect the Veteran’s range of motion with weight-bearing throughout the period on appeal. The examiner should also consider flare-ups as reported during the October 2014 examination and currently, if reported on a new examination. The examiner is asked to describe whether pain could significantly limit functional ability during flares and, if so, the examiner must estimate the range of motion during flares. IF THE EXAMINATION DID/DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST OBTAIN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 3. Request a medical opinion on the Veteran’s right ear hearing loss. The medical expert should review the claims file and address whether the Veteran’s right ear hearing loss is at least as likely as not related to service? The expert should consider all relevant lay and medical records, including the August 1989 service treatment record showing complaints of right ear hearing loss. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resorting to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. J. O’CONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong 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.