Citation Nr: 21029004 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-38 476 DATE: May 12, 2021 ORDER A rating higher than 10 percent for right ankle strain and degenerative joint disease is denied. A rating higher than 10 percent for left achilles tendonitis with degenerative joint disease left ankle is denied. Service connection for hypertension is denied. Service connection for bilateral eye disability, to include cataracts and presbyopia, is denied. Compensation under 38 U.S.C. § 1151 for statin induced myopathy, later diagnosed as cervical spondylotic myelopathy, due to delay in refill of statin prescription is denied. REMANDED A rating higher than 30 percent for bilateral pes planus prior to October 7, 2019, is remanded. Service connection for low back disability is remanded. Service connection for erectile dysfunction is remanded. Service connection for headaches is remanded. Service connection for cervical spondylotic myelopathy, claimed as myopathy, is remanded. A total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to December 9, 2020, is remanded. FINDINGS OF FACT 1. The Veteran's right ankle strain and degenerative joint disease manifests as pain, painful motion, swelling, decreased muscle strength, limitation of plantar flexion to no less than 10 degrees, limitation of dorsiflexion to no less than 20 degrees, disturbance of locomotion, and interference with standing. 2. The Veteran's left achilles tendonitis with degenerative joint disease left ankle manifests as pain, painful motion, swelling, decreased muscle strength, limitation of plantar flexion to no less than 20 degrees, limitation of dorsiflexion to no less than 10 degrees, disturbance of locomotion, and interference with standing. 3. Hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that a bilateral eye disability, to include cataracts and/or dry eye syndrome, began during active service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that erectile dysfunction began during active service, or is otherwise related to an in-service injury or disease. 6. The preponderance of the evidence is against finding that headaches began during active service, or is otherwise related to an in-service injury or disease. 7. The Veteran does not have additional disability, to include myopathy and/or cervical spondylotic myelopathy, due to a delay in providing a refill of the Veteran's statin prescription that was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, or due to an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for right ankle strain and degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5010, 5271. 2. The criteria for a rating higher than 10 percent for left achilles tendonitis with degenerative joint disease left ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5010, 5271. 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a bilateral eye disability, to include cataracts and dry eye syndrome, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for compensation under 38 U.S.C. § 1151 for statin induced myopathy, later diagnosed as cervical spondylotic myelopathy, due to delay in refill of statin prescription have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to January 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2010 and March 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The March 2010 rating decision denied compensation under 38 U.S.C. § 1151 for statin induced myopathy. The Veteran initiated an appeal of this denial with a March 2011 notice of disagreement. The RO issued a statement of the case in June 2011. The Veteran did not submit a timely substantive appeal or VA Form 9. In a November 2011 statement, the Veteran reapplied for compensation under 38 U.S.C. § 1151 for statin induced myopathy, which was again denied in a November 2012 rating decision. A July 2013 Report of General Information notes that the Veteran wished to claim compensation under 38 U.S.C. § 1151 for statin induced myopathy, this was denied in a September 2013 rating decision. In March 2014, the Veteran filed the current claim to reopen this issue. Nevertheless, the February 2019 Board decision found that the Veteran had perfected his appeal as to the March 2010 rating decision. The March 2015 rating decision granted service connection for bilateral pes planus, right ankle strain and degenerative joint disease, and left achilles tendonitis with left ankle degenerative joint disease; denied service connection for tinnitus, posttraumatic stress disorder (PTSD), headaches, hypertension, erectile dysfunction, and cataracts and presbyopia; confirmed and continued the previous denials of service connection for bilateral hearing loss, residuals of frostbite, depression, and degenerative dis disease of the lumbar spine; denied compensation under 38 U.S.C. § 1151 for myopathy due to improper medical procedure; and confirmed and continued the previous denial of compensation under 38 U.S.C. § 1151 for statin induced myopathy. In a May 2015 notice of disagreement, the Veteran appealed the initial ratings and effective dates for pes planus, right ankle strain, and left achilles tendonitis; the denials of service connection for cataracts and presbyopia, tinnitus, hypertension, erectile dysfunction, headaches, PTSD, degenerative disc lumbar spine, bilateral hearing loss, depression, and residuals of frostbite; and the denial of compensation under 38 U.S.C. § 1151 for statin induced myopathy. This notice of disagreement did not appeal the denial of compensation under 38 U.S.C. § 1151 for myopathy due to improper medical procedure and so it is not before the Board. The RO issued a statement of the case in July 2016. In an August 2016 VA Form 9, the Veteran perfected his appeal on the issues of the initial ratings and effective dates for pes planus and left achilles tendonitis; the initial rating for right ankle strain; the denials of service connection for cataracts and presbyopia, tinnitus, hypertension, erectile dysfunction, headaches, PTSD, degenerative disc lumbar spine, bilateral hearing loss, depression, and residuals of frostbite; and service connection for statin induced myopathy, which was accepted as perfection of both an appeal of the denial of compensation under 38 U.S.C. § 1151 for statin induced myopathy and a service connection claim for the same disability. As the requirements for establishing service connections are vastly different from those needed to establish compensation under 38 U.S.C. § 1151, these disabilities are now separately listed as reflected on the title page. In a February 2019 decision, the Board denied the Veteran's attempt to reopen a claim of service connection for residuals of frostbite; reopened his claims of service connection for bilateral hearing loss, low back disability, and PTSD; granted service connection for depressive disorder; denied service connection for bilateral hearing loss and tinnitus; denied earlier effective dates for bilateral pes planus, right ankle strain, and left achilles tendonitis; and remanded the issues of service connection for low back disability, headaches, bilateral eye condition, hypertension, and erectile dysfunction; remanded compensation under 38 U.S.C. § 1151 for statin induced myopathy and service connection for myopathy as secondary to a back disability; and remanded the claims for increased ratings for bilateral pes planus, right ankle strain, and left achilles tendonitis. In an October 2020 rating decision, the Veteran's rating for bilateral pes planus with plantar fasciitis was increased to 50 percent effective October 7, 2019. This rating decision noted that the appeal was resolved because this is the maximum rating allowed under the diagnostic code for flat foot. However, as this rating did not extend back to the entire appeals period, the issue of a rating higher than 30 percent for bilateral pes planus with plantar fasciitis prior to October 7, 2019, remains on appeal, as reflected on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The agency of original jurisdiction (AOJ) has yet to issue a Supplemental Statement of the Case (SSOC) on this issue; therefore, the Board will assume jurisdiction for the limited purpose of remanding the matter for issuance of a SSOC. Finally, the Veteran, through his representative, has raised the issue of TDIU in conjunction with his claims for increased ratings for bilateral ankle disabilities and bilateral pes planus. Rice v. Shinseki, 22 Vet. App. 447 (2009). Similarly, the record shows that the Social Security Administration (SSA) found the Veteran unemployable due to his back disability since 2002, prior to the current appeals period. The March 2021 rating decision awarded TDIU effective December 9, 2020. Again, as this does not encompass the entire appeals period, the issue of TDIU prior to December 9, 2020, remains on appeal. Increased Rating 1. A rating higher than 10 percent for right ankle strain and degenerative joint disease 2. A rating higher than 10 percent for left achilles tendonitis with left ankle degenerative joint disease The Veteran is seeking higher initial ratings for his bilateral ankle disabilities. The Veteran was granted service connection for right ankle strain and degenerative joint disease and left ankle achilles tendonitis with degenerative joint disease in the March 2015 rating decision on appeal. At that time, both disabilities were rated 10 percent effective March 18, 2014. His right ankle strain and degenerative joint disease is currently rated under hyphenated diagnostic code 5271-5010 and his left achilles tendonitis with left ankle degenerative joint disease is currently rated under hyphenated diagnostic code 5010-5271. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. During the pendency of the appeal, effective February 7, 2021, VA revised the criteria for rating certain musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The revised criteria apply to all applications for benefits received by VA on or after that date; however, only the old rating criteria may be applied prior to the effective date. Under the former criteria in effect prior to February 7, 2021, Diagnostic Code 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis (DC 5003). 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2020). Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assigned for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is assigned for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003 (2020). The Veteran's current 10 percent ratings are equal to the maximum rating available for each ankle under DC 5010. See 38 C.F.R. § 4.71a. The revised version of Diagnostic Code 5010 provides that post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. See 38 C.F.R. § 4.71a, DC 5010 (2020). Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under former DC 5271 for limitation of motion of the ankle, a 10 percent rating is warranted for moderate limited motion of the ankle. 38 C.F.R. § 4.71a, (2014). A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271 (2014). According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. Under the revised DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). 38 C.F.R. § 4.71a, (2021). A maximum 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 38 C.F.R. § 4.71a, DC 5271 (2021). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The August 2014 VA ankle conditions disability benefits questionnaire (DBQ) notes the Veteran's complaints of swelling up to midcalf and daily bilateral ankle pain (left worse than right). He used a cane and walker. His symptoms were aggravated by walking and standing. He had not undergone any surgery or received any injections for his ankle disabilities. His right ankle range of motion was from zero to 40 degrees of plantar flexion and from zero to 15 degrees dorsiflexion without objective evidence of painful motion. His left ankle range of motion was from zero to 30 degrees of plantar flexion and from zero to 10 degrees dorsiflexion with objective evidence of painful motion at 30 degrees plantar flexion and 10 degrees dorsiflexion. He was able to perform repetitive use testing without additional loss of range of motion. The contributing factors of disability in the left ankle were pain on movement; swelling; and interference with sitting, standing, and weight-bearing. He had localized tenderness of pain on palpation of the left ankle only. The Veteran had 4/5 muscle strength (active movement against some resistance) in right ankle dorsiflexion and plantar flexion and 3/5 muscle strength (active movement against gravity) in left ankle dorsiflexion and plantar flexion. No joint instability was found. The Veteran did not have ankylosis in either ankle. The Veteran did not have a history of or currently have "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, or malunion of calcaneus or talus. He had not had a talectomy. He had not undergone a total ankle joint replacement or other ankle surgery. He did not have any associated scars or other pertinent physical findings, complications, conditions, signs, or symptoms related to an ankle condition. He regularly used a cane and a walker as a normal mode of locomotion. The Veteran's ankle conditions did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. These disabilities impact his ability to do manual work, but not sedentary work. Flare up was not present at the time of this examination and absent this, the examiner found that it would be mere speculation to express in terms of the degrees of additional range of motion loss due to pain, weakness, fatigability, or incoordination. The September 2018 ankle DBQ notes current symptoms of bilateral ankle swelling and pain that were treated with medication. His bilateral ankle disabilities limited his walking and standing to ten to twenty minutes. During flare-ups, he was unable to walk or stand for ten minutes. His active and passive ranges of motion were from zero to 10 degrees of dorsiflexion and from zero to 20 degrees plantar flexion bilaterally. This limitation of range of motion limited his ability to walk or stand to ten to twenty minutes. Pain was noted in both planes on examination and caused functional loss. There was evidence of pain with weight bearing, non-weight bearing, and passive range of motion. There was objective evidence of tenderness about the ankles, but no objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion in either ankle. He was not examined immediately after repetitive use over time or during a flare up. This examiner found that pain significantly limited functional ability of the bilateral ankles with repeated use over time or during a flare-up, but was unable to describe in terms of range of motion because limitation would be variable based on degree of repetitive use or flare and definitive measurements would be purely speculative unless directly observed by the examiner. There were no additional contributing factors of disability for either ankle. The Veteran had 4/5 muscle strength (active movement against some resistance) in bilateral dorsiflexion and plantar flexion. He did not have muscle atrophy. He did not have ankylosis of either ankle. Joint stability testing did not find laxity in either ankle compared to the opposite side. The Veteran did not have a history of or currently have "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, or malunion of calcaneus or talus. He had not had a talectomy. He had not undergone any surgical procedures for wither ankle. He did not have any associated scars. He did have 2+ pitting edema. He constantly used a cane or a walker and occasionally used ankle braces as a normal mode of locomotion. The Veteran's ankle conditions did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies confirmed right ankle arthritis. These disabilities impacted his ability to work due to limitations on walking and standing. The October 2019 ankle DBQ notes current symptoms of ankle swelling and inability to stand or walk for very long. Walking and moving caused flare-ups of pain. His range of motion was from zero to 10 degrees of dorsiflexion and from zero to 25 degrees plantar flexion bilaterally. Pain was noted in both planes on examination and caused functional loss. There was objective evidence of pain on palpation, pain on passive range of motion testing, and crepitus. There was evidence of pain with weight bearing, but no objective evidence of pain when used in non-weight bearing. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion in either ankle. He was not examined immediately after repetitive use over time, but this examiner found that the examination was medically consistent with his statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted that after a review of the Veteran's records including the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, he had no basis to offer additional losses of function or motion with repeated use over time. Similarly, the was not examined during a flare up, but this examiner found that the examination was medically consistent with his statements describing functional loss during a flare up. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability during a flare up. The examiner noted that following further review of the Veteran's records and giving consideration to the subjective complaints and objective exam findings, given this examiner's clinical knowledge and medical expertise, there remained no rational basis to make a notation regarding any additional losses of function or motion during a flare up. Additional factors contributing to disability included right ankle swelling, left ankle instability of station, bilateral disturbance of locomotion, and bilateral interference with standing. The Veteran limped with an antalgic gait. This interfered with his walking and standing. Both ankles were noted to be swollen at the time of the examination. The Veteran had 4/5 muscle strength (active movement against some resistance) in bilateral dorsiflexion and plantar flexion. He did not have muscle atrophy. He did not have ankylosis of either ankle. Joint instability was not suspected for either ankle. The Veteran did not have a history of or currently have "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, or malunion of calcaneus or talus. He had not had a talectomy. He had not undergone any surgical procedures for wither ankle. He did not have any associated scars or other pertinent physical findings, complications, conditions, signs, or symptoms related to an ankle condition. He used a walker as a normal mode of locomotion due to degenerative disease of the bilateral ankles. The Veteran's ankle conditions did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies confirmed bilateral ankle arthritis. These disabilities impacted his ability to work due to his avoidance of prolonged standing and walking. The examiner estimated less than one week of lost work time in the prior twelve months. VA treatment record for this period reiterate the Veteran's complaints of bilateral ankle pain and swelling. The April 2018 VA treatment record confirms some loss of muscle strength (4/5) in the bilateral ankles. The Board finds that the preponderance of the evidence is against ratings higher than 10 percent for right ankle strain and degenerative joint disease and/or higher than 10 percent for left ankle achilles tendonitis with degenerative joint disease. The medical evidence of record shows pain painful motion, swelling, decreased muscle strength, limitation of plantar flexion to no less than 20 degrees, limitation of dorsiflexion to no less than 10 degrees, disturbance of locomotion, and interference with standing in the bilateral ankles. Even without the specific measurements provided by the revised rating criteria, this limitation of motion shown fell in the middle of the normal range of motion for the ankles, which is consistent with a finding of moderate limitation of motion for both ankles. See 38 C.F.R. § 4.71a, DC 5271 (2014); 38 C.F.R. § 4.71a, DC 5271 (2021). The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during flare-ups, and pain during repetitive use over time. However, the medical examiners were unable to assign range of motion equivalents for this additional limitation and the Veteran's statements that his ability to stand and walk were further limited in duration by increased pain after repetitive use or during flare-ups do not in themselves suggest additional symptoms that would more nearly approximate marked limited motion in either ankle. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The Veteran has not undergone ankle replacement surgery, so a rating under DC 5056 is not warranted for either ankle. See id. The record does not reflect nonunion or malunion or either tibia or fibula, thus ratings under DC 5262 are not warranted. See id. Neither ankle is ankylosed, so ratings under DC 5270 are not warranted. See id. Thus, a higher rating under another DC related to disabilities of the ankle is not available. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for either right or left ankle disability. In denying such a rating, 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. The Board notes that while some interference with employment is shown, there is no indication that the Veteran's bilateral ankle disabilities alone render him unable to sustain gainful employment. The issue of TDIU prior to December 9, 2020, based on multiple service-connected issues, including his bilateral ankles, is remanded below. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 3. Service connection for hypertension The Veteran contends that his hypertension began in service. For VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 millimeters (mm) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, DC 7101, Note 1 (2018). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). This presumption only applies to periods of active duty and not to the Veteran's active duty for training (ACDUTRA) or inactive duty for training (IDT)with the Army National Guard because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or IDT, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The Veteran has a current diagnosis of hypertension as evidenced by the VA treatment records. Hypertension is an enumerated condition under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Here, there is no evidence of hypertension within one year of the Veteran's separation from service. The Veteran denied both high and low blood pressure in his April 1993 report of medical history at the time of his Army National Guard enlistment, which was more than four years after his separation from active duty, and the accompanying examination noted a blood pressure reading of 118/88. Moreover, at the time of his January 2001 department of transportation medical examination for renewal of his license, the Veteran denied current medication use and his blood pressure reading was 120/68. The first reference to hypertension is an April 2011 VA treatment record, decades after the Veteran's separation from active duty service. Service connection for hypertension may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's hypertension and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Indeed, the Board concludes that, while the Veteran has a diagnosis of hypertension, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. At the time of the October 2019 hypertension DBQ, the examiner noted that the Veteran was a poor historian and was unsure when he was first diagnosed with this condition and, initially was unsure, whether or not he took medication for hypertension. The blood pressure readings taken at that time did not meet VA's definition of hypertension, but the Veteran ultimately reported taking blood pressure medication. This examiner then opined that the Veteran's hypertension was not at least as likely as not related to an in-service injury, event, or disease. While the Veteran believes his hypertension is related to his active duty military service, the Board reiterates that the preponderance of the evidence weighs against findings that any in-service injury, event, or disease occurred to which the Veteran's current hypertension can be causally linked. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for hypertension and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 4. Service connection for a bilateral eye disability The Veteran is seeking service connection for a bilateral eye disability. As an initial matter, the Board notes that congenital or developmental defects, such as refractive error of the eyes, are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303 (c); see also 38 C.F.R. § 4.9 ; Beno v. Principi, 3 Vet. App. 439 (1992). Refractive errors to include astigmatism, myopia, hyperopia, and presbyopia. Service connection is not available for any loss of vision attributable to refractive errors. In this case, the Veteran has been diagnosed with refractive errors, including presbyopia, bilateral cataracts, and dry eye syndrome. As refractive errors are not disabilities for VA purposes, the Board's discussion will focus on the cataract and dry eye diagnoses. VA treatment records show a diagnosis of incipient cataracts in June 2012. The October 2019 eye conditions DBQ confirms a diagnosis of bilateral cataracts and also diagnoses dry eye syndrome. This examiner then opined that the Veteran's hypertension was not at least as likely as not related to an in-service injury, event, or disease. Indeed, the record does not show any eye disease or injury during his active duty military service and the Veteran has not alleged any eye disease or injury. While his service treatment records show that he had decreasing visual acuity during his active duty military service, there is no indication that this was caused by an eye disease or injury. Indeed, a December 1986 record noted that the Veteran's ocular health was within normal limits. Again, loss of visual acuity due to refractive errors does not warrant service connection. While the Veteran believes his cataracts and/or dry eye syndrome are related to his active duty military service, the Board reiterates that the preponderance of the evidence weighs against findings that any in-service injury, event, or disease occurred to which the Veteran's current bilateral eye conditions can be causally linked. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for bilateral eye disability and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Compensation under 38 U.S.C. § 1151 5. Compensation under 38 U.S.C. § 1151 for statin induced myopathy, later diagnosed as cervical spondylotic myelopathy, due to delay in refill of statin prescription As noted above, an appeal of the denial of the Veteran's separate claim for compensation under 38 U.S.C. § 1151 for myopathy due to improper medical procedure was not perfected. Thus, the Board will address the statin induced myopathy claim only. The Veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 for statin induced myopathy. Specifically, he stated that his statin prescription had expired and he was denied a refill pending reevaluation, which took over a month to schedule. Upon restart of this medication, he had rapid onset of symptoms that led to a hospital admission. In March 2014 statement, he described his current symptoms as chronic nerve pain and trouble with controlling his body movements. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if it was not the result of the Veteran's willful misconduct and either: 1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C. § 1151. The first element of a claim under 38 U.S.C. § 1151 is whether the Veteran has an additional disability as a result of VA care or treatment. See 38 C.F.R. § 3.361. If an additional disability is present, the issue then becomes whether the VA procedure actually caused the additional disability. Id. However, causation alone is not sufficient to warrant compensation under 38 U.S.C. § 1151; rather, the evidence must show either that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or that it was an event that was not reasonably foreseeable. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361 (d)(1). In determining whether compensation is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Here, the record does not show current myopathy. Instead, the medical evidence of record shows that the Veteran stopped taking Simvastatin for approximately one and a half months. Two days after he resumed that medication, in late April 2009, he sought emergency room treatment for painful joints and edema. Statin-induced myopathy was suspected and the Veteran was instructed to discontinued use of that medication. He was given oral steroids and hydrocodone, but stated that neither helped. He continued to have symptoms of pain, muscle spasm, weakness, and soreness. Subsequent VA treatment records show ongoing symptoms despite cessation of statin use. He was admitted on June 30, 2009, and additional work up was performed. A July 2009 imaging study showed central stenosis with cord impingement and possible abnormal signal at cervical level, which was consistent with upper extremity weakness and hyperesthesia. Ultimately, he underwent an anterior cervical discectomy and fusion (ACDF) for cervical spondylotic myelopathy in July 2009. The September 2020 heart conditions DBQ noted that there was no current diagnosis of statin induced myopathy. The examiner reiterated that the Veteran had been hospitalized for this condition in 2009, but it failed to respond to treatment. The Veteran underwent an extensive work-up, which diagnosed a cervical spinal cord impingement that was causing symptoms of pain and weakness to all extremities. He underwent cervical surgery at that time and now suffers from neuropathy and venous insufficiency causing pain and swelling to bilateral legs. Thus, despite the early working diagnosis in 2009, the record does not show a diagnosis of myopathy as those symptoms have subsequently been attributed to a different diagnosis: cervical spondylotic myelopathy. Moreover, the September 2020 DBQ examiner found that it was less as likely as not that the claimed condition was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The rationale was that the VA diagnosis and treatment were appropriate and timely; accepted appropriate protocols were followed; and the standard of care was met in this case. In recounting the relevant timeline, this examiner noted that the Veteran first reported symptoms two days after resuming statin use. He was then treated for statin-induced myopathy for several weeks with continuing symptoms. After the presumed statin-induced myopathy failed to respond to treatment, the Veteran underwent a lengthy work-up and was found to have cervical spinal cord compression. He then underwent cervical spine surgery in July 2009 and was sent to a rehabilitation facility for further treatment and recovery. The veteran Was seen by multiple physicians during his July 2009 hospital stay. He received a full work-up and adequate treatment by the multiple physicians that were following his case. Above, the record fails to establish that the Veteran has myopathy. Moreover, his cervical spondylotic myelopathy, to which all of the relevant symptoms have subsequently been attributed, is not shown to be caused by the reported delay in refilling the Veteran's statin prescription. Although a connection was suggested between the previous, and subsequently abandoned, diagnosis of statin induced myopathy and his prescribed statin, no such causal connection has been suggested between this medication and his cervical spondylotic myelopathy. The Veteran has identified a delay in refill of prescription statins as VA's action that caused this disability, but there is no indication beyond the Veteran's assertion, that statins played any role in the development of this disability. Indeed, the record suggests that the working diagnosis of statin induced myopathy stemmed from the Veteran's report of a recent return to statin use two days prior to the onset of his symptoms. This would suggest that it was the taking of the statins, not the period when he was unable to take them due to a lapse in his prescription, that was thought to have caused myopathy. Ultimately, that diagnosis was abandoned when the Veteran's symptoms failed to respond to treatment for this condition, including a discontinuance of statins. There is no indication that this disability was further worsened by the initial treatment plan that included discontinuance of his statin use. As such, the Veteran has failed to establish that the proximate cause of any additional disability was fault on the part of VA. Based on the above, the Veteran's claim for compensation under the provisions of 38 U.S.C. § 1151 must be denied. See 38 C.F.R. §§ 3.361 (d)(2), 17.32. Here the preponderance of evidence is against a finding that the proximate cause of any additional disability was fault on the part of VA or that any additional disability was not reasonably foreseeable. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 1. A rating higher than 30 percent for bilateral pes planus prior to October 7, 2019, is remanded. As noted in the introduction, the October 2020 rating decision incorrectly stated that the Veteran's appeal with regard to an increased rating for bilateral pes planus was resolved. While that rating decision awarded the maximum schedular rating for bilateral pes planus effective October 7, 2019, this was not the entire period on appeal. As such, the question of an increased rating prior to October 7, 2019, is still on appeal and the agency of original jurisdiction must issue a supplemental statement of the case on this issue. 2. Service connection for low back disability is remanded. Unfortunately, another remand is necessary in the case. The February 2019 Board remand requested an addendum opinion to address the May 2017 private opinion from Dr. H.S., which was found deficient due to its failure to address the significant June 2002 post-service motor vehicle accident and low back injury. In doing so, however, the October 2019 opinion focused only on the question of direct service connection and neglected to address the issue of whether the Veteran's low back disability was aggravated by his service-connected bilateral feet and/or ankle disabilities, specifically as due to an altered gait. As such, an opinion on the question of aggravation remains necessary. 3. Service connection for erectile dysfunction is remanded. Similarly, in February 2019, the Board remanded the issue of service connection for erectile dysfunction. While this was noted in the remand narrative, the remand instructions failed to list this disability among those for which an examination was necessary. As a result, the record does not reflect an examination for this disability and one must be provided on remand. 4. Service connection for headaches is remanded. Additionally, an addendum opinion is also necessary for the issue of service connection for headaches. At the time of the October 2019 DBQ, the examiner was unable to confirm a diagnosis of chronic headaches. The May 2017 private DBQ, however, reflects the Veteran's report of daily tension headaches that this private examiner then related to his acquired psychiatric disability (depressive disorder). The October 2019 opinions do not adequately address the May 2017 private findings and that examiner did not provide an opinion as to whether this was causally related to the Veteran's service-connected depressive disorder. 5. Service connection for cervical spondylotic myelopathy, claimed as myopathy, is remanded. As noted above, the Veteran's cervical spondylotic myelopathy was originally thought to be statin-induced myopathy. This issue has been recharacterized to reflect this ammended diagnosis. The record reflects a claim of myopathy secondary to low back disability. Thus, a decision on the remanded issue of service connection for low back disability could significantly impact a decision on the issue of service connection for myopathy, the issues are inextricably intertwined. A remand of the claim for service connection for myopathy is required. 6. TDIU prior to December 9, 2020 As noted above, the Veteran has raised the issue of TDIU due to his bilateral ankle disabilities and bilateral pes planus throughout the current appeals period. Additionally, the SSA found that he was unemployable due to his back disability since 2002. This raised the issue of TDIU prior to its current December 9, 2020, effective date. Because a decision on the remanded issues of an increased rating for bilateral pess planus and service connection for a low back disability could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claims for TDIU is required. The matters are REMANDED for the following action: 1. Readjudicate the Veteran's claim of entitlement to a rating in excess of 30 percent for bilateral pes planus prior to October 7, 2019, in a Supplemental Statement of the Case. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's low back disability is at least as likely as not aggravated beyond its natural progression by service-connected disability, to include an altered gait resulting from service-connected bilateral foot and/or ankle disability. 3. Schedule the Veteran for a VA examination for his erectile dysfunction. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is the Veteran's current erectile dysfunction at least as likely as not related to service, including his in-service venereal disease? Provide a rationale to support the opinion. 4. Obtain addendum opinions from an appropriate clinician regarding the Veteran's headache claim. This examiner should address the May 2017 private DBQ, which found a current headache disability, and provide a response to the following: (a.) Is any current headache disability at least as likely as not related to service? (b.) Are the Veteran's reported headaches are at least as likely as not related to his service-connected disability, to include depressive disorder? (c.) Are the Veteran's reported headaches are at least as likely as not aggravated beyond its natural progression by his low back condition? 5. Finally, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, then furnish the Veteran and his representative with a supplemental statement of the case and allow them an opportunity to respond. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Houbeck 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.