Citation Nr: 21025913 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-03 588 DATE: April 29, 2021 ORDER Entitlement to service connection for a bilateral foot disability, to include pes planus, plantar fasciitis and hallux valgus is denied. REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome, lumbar strain and scoliosis is remanded. FINDINGS OF FACT 1. The Veteran’s hallux valgus clearly and unmistakably preexisted service. 2. The preponderance of the evidence is against finding that the Veteran’s hallux valgus was aggravated by service. 3. The preponderance of the evidence is against finding that the Veteran’s pes planus and plantar fasciitis began during active service or are otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability, to include pes planus, plantar fasciitis and hallux valgus have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1994 to April 1998. This matter came before the Board of Veterans Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a November 2018 hearing. The transcript of the hearing is of record. A November 2018 Board decision then dismissed the issues of service connection for a cervical spine disability and increased ratings for left and right lower extremity radiculopathy as withdrawn at the hearing. The decision remanded the issues of service connection for a bilateral foot disability, increased ratings for PTSD and the lumbar spine, and entitlement to TDIU for further development. An October 2020 rating decision increased the rating for PTSD from 50 to 100 percent effective October 16, 2019, and a January 2021 Board decision granted a 70 percent rating for the period prior to October 16, 2019. That decision is final. Thus, the issue is no longer before the Board. A January 2021 Board decision remanded the issues of an increased rating for the lumbar spine disability, service connection for a bilateral foot disability and entitlement to TDIU for further development. A January 2021 rating decision granted entitlement to TDIU effective April 12, 2012, which the Board notes is the date of claim for the current appeal. As TDIU has been granted for the entire period on appeal, the January 2021 rating decision constituted a complete grant of the benefit sought on appeal and the issue is not before the Board. See Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Entitlement to service connection for a bilateral foot disability, to include pes planus, plantar fasciitis, and hallux valgus The Veteran contends that she is entitled to service connection for her bilateral foot disability. After a review of the competent evidence of record, the Board concludes that the Veteran’s bilateral foot disability is not related to service and service connection is therefore not warranted. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). When a question is raised as to whether a particular disability claimed by the Veteran pre-existed service, VA law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). If a pre-existing disability is noted at entry, then the presumption of soundness is rebutted, and aggravation of that disability must be demonstrated for service connection to be granted. A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, “the preponderance of the evidence must be against the claim.” Id. at 54. The Veteran’s September 1992 entrance examination noted mild hallux valgus. Thus, hallux valgus pre-existed service and the issue regarding that foot disability is one of service aggravation. As pes planus and plantar fasciitis were not noted at entry, the Veteran is presumed sound regarding those disabilities and the Board will therefore consider whether they were incurred in or caused by service. July 1995 service treatment records show complaints of right foot pain. The Veteran reported a painful callous on the bottom of the right foot. On examination, the provider found a wart on the bottom of foot and diagnosed plantar wart. The records show that the wart was removed, moleskin was applied, and the Veteran was placed on restricted duty for one week. Service treatment records also show that the Veteran underwent a medical board evaluation in May 1997. The May 1997 report of medical history shows that the Veteran denied foot trouble, though she reported back pain due to lifting, rucking and physical training. The May 1997 medical board examination found that feet were normal and the May 1997 medical board opinion is silent for a discussion of foot problems, though the examiner noted that being on her feet and being physically active in service was causing problems with her back. October 2005 private treatment records noted pain radiating from the back down into the foot, but it was diagnosed as radiculopathy. March 2006 records show pain management treatment for back and leg pain, but physical examination noted that there was no foot swelling and the record is silent for foot complaints. The provider noted that the Veteran could toe/heel walk without difficulty. June 2008 private treatment records show that the Veteran reported discomfort in her left big toe since the nail came off, and the provider diagnosed onychomycosis of the toenails and discussed foot hygiene. January 2009 private treatment records show that the Veteran reported ankle pain, and a foot/ankle examination and a right ankle MRI were performed. The record is silent for foot complaints or diagnoses. Private treatment records show that the Veteran sought treatment for foot pain in January 2011 and the provider diagnosed bilateral pes planus and bilateral plantar fasciitis. February 2011 records show that an initial evaluation was performed, and the Veteran reported bilateral foot pain that started in December and progressively worsened. September 2011 records show that the Veteran reported acute onset of right foot pain when she felt something pop in her right foot one week prior. The provider noted that the Veteran had been treated in the past decade for plantar fasciitis and diagnosed a possible tear of the plantar fascia. The provider also noted developing bilateral hallux valgus. October 2011 records noted foot and ankle pain for the past year. The provider noted the right foot “pop” and plantar pain in the left foot. The provider also found restricted plantar fascia and pes planus in the left foot. Additional October 2011 records show a diagnosis of plantar fasciitis. January 2013 records show surgery for tarsal tunnel release. December 2010 VA treatment records noted pain in the lower back and feet. May 2011 VA treatment records noted foot pain, and March 2012 VA treatment records noted flat feet, plantar fasciitis, and treatment with orthotics from a private provider. February 2014 VA treatment records noted foot pain and a history of tarsal tunnel release. The provider diagnosed pes planus with foot pain. An October 2019 VA examination diagnosed pes planus, hallux valgus and bilateral plantar fasciitis with calcaneal spurs. The examiner noted the Veteran’s reports that her foot disability began in 2000 when she heard a snap in her right foot and a fracture caused damage to the nerve. The Board notes that the accompanying October 2019 VA opinion was found to be inadequate in the January 2021 Board decision and will therefore not discuss it herein. A February 2021 VA examination diagnosed hallux valgus, pes planus and plantar fasciitis, also noting a plantar fascia rupture. The examiner noted the Veteran’s reports of foot pain since enlisting as well as reports of problems from running/boot wear but found that the Veteran’s foot disabilities were not caused by or incurred in service. As a rationale, the examiner stated that the etiology of all three conditions was well known, and hallux valgus was due to the way a person walks and the structure of the foot, while pes planus and plantar fasciitis were both due to years of wear and tear weakening the tendon along the inside of the ankle that supports the arch. The examiner opined that if there was damage from running/boot wear, if would have presented during service, but that there were no foot complaints during service. In finding that there were no foot complaints in service, the examiner specifically noted that the May 1997 medical board examination which found no foot troubles during active service. The provider also noted that there were no complaints of pes planus or plantar fasciitis until 2011, opining that this lapse of time made it highly unlikely that the current foot disabilities were related to service. Regarding hallux valgus, the examiner noted the enlistment examination finding of mild hallux valgus and opined that this was the only condition that could be found to have pre-existed service. However, the examiner found that hallux valgus was not aggravated by service, citing the lack of foot complaints or other signs of aggravation in service, as well as the May 1997 medical board examination finding no foot problems. The examiner also addressed the July 1995 complaint of foot pain and diagnosis of a plantar wart, explaining that it was a separate and unrelated condition from hallux valgus. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Veteran submitted an April 2012 statement reporting extreme foot pain at the bottom of her feet since December 2010. She noted that she had been referred to a private provider and was diagnosed with plantar fasciitis. She stated that her condition worsened, and her plantar fascia tore, and her podiatrist recommended orthotics. The Veteran also submitted a July 2012 statement reporting a diagnosis of abnormal feet at entrance and saying that her feet started to really burn and ache constantly in 2010 to the point that it was painful to walk, and doctors then diagnosed her with flat feet, plantar fasciitis, and a right foot plantar fasciitis tear. She also stated that she was treated for her feet on active duty in July 1995. At the November 2018 Board hearing, the Veteran reported that when she went into the military, she was told that she had flat feet, and that she currently had plantar fasciitis. She stated that she was never treated after service until her plantar bone popped while working and she had to have a tarsal tunnel release surgery. She reported that she began treatment in 2000, two years after leaving service and that her providers told her that not being treated for flat feet in service caused her current problems. She stated that her foot problems were due to running, walking, and wearing boots in service. When asked if her feet bothered her during the period between service and when she first sought treatment, the Veteran stated that she was not paying attention to it because she had so much else going on. The Board notes that the Veteran is competent to report lay-observable symptoms such as foot pain and treatment she receives and assigns her statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds her to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the competent evidence of record does not support the conclusion that the Veteran’s hallux valgus was aggravated by service beyond its natural progression or that her pes planus and plantar fasciitis began in service or were otherwise due to service. Regarding hallux valgus, the February 2021 VA examination found that the disability pre-existed service, noting the finding of mild hallux valgus at entrance, but found that the evidence did not show aggravation, noting that problems associated with boot wear would have presented in service but the only treatment for foot pain in service was for a wart and unrelated to hallux valgus. The Board notes that this opinion is consistent with the competent evidence of record. Service treatment records are silent for treatment for foot pain other than the July 1995 wart treatment, the Veteran denied in-service foot problems at the May 1997 medical board evaluation, and the medical board evaluation did not find foot problems. The Veteran has also not submitted any lay evidence indicating that her foot disability worsened during service. At the November 2018 Board hearing she stated that the only issue she could think of during service was blisters from road marches. Moreover, when hallux valgus was first noted after service in September 2011, the provider assessed it as “developing bilateral hallux valgus.” Given that the initial notation of hallux valgus assessed it as mild, it was not found at the May 1997 medical board examination, and in September 2011 hallux valgus was assessed as “developing,” there is simply no basis upon which the Board can conclude that the condition was worsened beyond its natural progression by service. Service connection for hallux valgus is therefore not warranted. Regarding pes planus and plantar fasciitis, the competent evidence of record is against finding that the disabilities began in service or are otherwise due to service. The February 2021 VA examination found the disabilities were not due to service, explaining that the etiology of both conditions was well established and that they were due to years of wear and tear weakening the foot structures. The examiner also explained that if the damage was from running and boot wear, it would have presented during service, but record did not show complaints or treatment in service or until many years after service. These findings are consistent with the preponderance of the other competent evidence of record. Service treatment records are silent for foot complaints other than treatment for a wart, the Veteran denied foot problems in the May 1997 medical history report and the May 1997 medical board evaluation did not find a foot disability or note any foot complaints when evaluating whether the Veteran was fit to continue service. In addition, private and VA treatment records do not show treatment for foot pain, other than radicular pain and treatment for toenail and ankle conditions, until December 2010, when VA providers noted complaints of foot pain. Similarly, February 2011 private treatment records show reports of foot pain beginning in December and October 2011 private treatment records noted foot pain for the past year. Finally, in her April 2012 and July 2012 statements the Veteran reported foot pain since December 2010 and stated that she was subsequently diagnosed with plantar fasciitis and treated with orthotics. The Board acknowledges that at the November 2018 Board hearing, Veteran reported that her flat feet were noted at entrance, that her disabilities were due to her flat feet not being treated in service, and she began receiving treatment only two years after service in 2000. However, the Board finds that these statements are inconsistent with the other competent evidence of record. First, service treatment records show that hallux valgus, not pes planus, was noted at entry, and the Veteran’s statements regarding her foot disability at entry are therefore based on an inaccurate medical history. Second, the Veteran reported that she first sought treatment in 2000, when she felt a pop in her foot and had to have surgery. However, private treatment records show that in September 2011 the Veteran reported that the right foot “pop” and pain began one week prior, and that the tarsal tunnel surgery occurred in January 2013. While the Veteran is competent to report feeling her foot “pop” and having surgery, the Board assigns greater weight to the contemporaneous private treatment records regarding the timing of the plantar fascia tear and surgery. In addition, the Veteran’s April 2012 and July 2012 statement specifically reported foot pain beginning in 2010 and diagnoses and treatment after that date, which is consistent with the complaints of foot pain shown in the VA and private treatment records. The Board therefore assigns more weight to the medical history reported in the Veteran’s April 2012 and July 2012 statements than to the reports in November 2018. The Board also notes the reports of treatment for plantar fasciitis “in the past decade” in the September 2011 private treatment records. However, this report is not supported by the record. Aside from that one notation, private and VA treatment records from the period are silent for such treatment, showing only treatment for toenail fungus, radiculopathy associated with the lumbar spine, and ankle injury. There is no indication in the record that those complaints are associated with the Veteran’s current foot disabilities. The Board therefore finds that the preponderance of the evidence is against finding that the Veteran’s current foot disabilities began in service and persisted after service. While the Veteran contends that her foot current disabilities are related to service including running and boot wear, as a layperson, she does not possess the medical expertise required to provide a nexus opinion. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board therefore assigns more weight to the opinion of the VA examiner, which found that the disabilities were not likely due to service, giving a clear rationale that, as discussed above, is supported by the other competent evidence of record. The preponderance of the evidence is therefore against finding that the Veteran’s current foot disabilities were due to service, including running and boot wear. The Board therefore finds that the preponderance of the evidence indicates that the Veteran’s planus and plantar fasciitis were not caused by or incurred in service and that her pre-existing hallux valgus was not aggravated by service. Service connection is therefore not warranted. 38 C.F.R. § 3.303, 3.306. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome, lumbar strain and scoliosis is remanded. The January 2021 Board decision requested a new VA lumbar spine examination, specifically stating that if pain was noted on range of motion testing, the examiner should note the point pain began. The remand noted that this request had also been made in the November 2018 Board decision, but the October 2019 examiner had not provided the requested information. A VA lumbar spine examination was provided in February 2021. However, while the examiner found pain on range of motion testing, he did not note the point pain began as requested in the remand directives. As explained in the January 2021 remand, this does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. Remand is therefore required to provide an accurate picture of functional loss associated with the Veteran’s lumbar spine disability. The Board also notes that effective February 7, 2021, the Diagnostic Codes applicable to lumbar spine disabilities have changed. The Veteran’s lumbar spine disability has been rated under Diagnostic Code 5243, which rates intervertebral disc syndrome. As pertinent to this issue, Diagnostic Code 5243 is now assignable only when there is disc herniation with compression and/or irritation of the nerve root. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 20202) (to be codified at 4.71a, Diagnostic Code 5243). The examination should be conducted in such a way that it includes findings consistent with the new requirements of Diagnostic Code 5243. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of her lumbar spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present. Regarding intervertebral disc syndrome (IVDS), the examiner should indicate whether there is disc herniation with compression and/or irritation of the nerve root. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.