Citation Nr: 21030400 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-25 360 DATE: May 18, 2021 ORDER Entitlement to a 20 percent rating for service-connected left foot calcaneal spur (arthritis) with left heel stress fracture ("left heel disability) is granted. Entitlement to a 20 percent rating for service-connected residuals of a right heel stress fracture ("right heel disability") is granted. REMANDED Entitlement to service connection for right foot disorder to include arthritis, to include as secondary to service-connected right heel stress fracture, is remanded. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's left heel disability has been manifested by symptoms that more nearly approximate a moderately severe foot condition. 2. Throughout the rating period on appeal, the Veteran's right heel disability has been manifested by symptoms that more nearly approximate a moderately severe foot condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 20 percent, but not higher, for service-connected left foot calcaneal spur (arthritis) with left heel stress fracture ("left heel disability) have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§§ 4.1, 4.2, 4.3, 4.21, 4.71a, Diagnostic Code (DC) 5284. 2. The criteria for entitlement to an increased rating of 20 percent, but not higher, for service-connected residuals of a right heel stress fracture ("right heel disability") have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§§ 4.1, 4.2, 4.3, 4.21, 4.71a, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from September 1973 to September 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2019, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board notes that the VLJ who conducted this hearing is no longer employed at the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In a March 2021 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board, and informed him of the right to another hearing. This letter also informed that if the Veteran did not respond within 30 days, the Board would assume that another hearing was not desired and would proceed to adjudicate the claim on appeal. In April 2021, the Veteran responded that he does not wish to appear at another Board hearing. These matters were previously before the Board in August 2019, where they were remanded for additional development. The Board notes that there was substantial compliance with its August 2019 remand directives with respect to the increased rating claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In a July 2020 rating decision, the RO granted service connection for left foot calcaneal spur and evaluated this disability with left heel stress fracture residuals, assigning a 10 percent rating from April 11, 2011. The rating decision also granted an increased rating of 10 percent for service-connected right heel stress fracture residuals. The Veteran has not expressed satisfaction with the increased disability ratings; these matters thus remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). A supplemental statement of the case (SSOC) was issued in July 2020. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a "staged rating" is required. See id at 126. Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by painful motion with joints. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell, 25 Vet. App. at 3738; see 38 C.F.R. § §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. § §§ 4.40 and 4.45 includes 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). Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. 32 Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. § §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, despite the relevance of the background factors delineated in § 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 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 [or § 4.73] criteria."). 1. Entitlement to an increased rating exceeding 10 percent for service-connected left foot calcaneal spur (arthritis) with left heel stress fracture ("left heel disability"). 2. Entitlement to an increased rating exceeding 10 percent for service-connected residuals of a right heel stress fracture ("right heel disability"). The Veteran contends that his current right and left heel disabilities warrant increased ratings higher than 10 percent, as his symptoms have worsened. For the rating period on appeal, the Veteran's service-connected left and right heel disabilities are both currently evaluated at 10 percent under DC 5284, which contemplates general foot injuries. 38 C.F.R. § § 4.71a, DC 5284. Pursuant to DC 5284, a 10 percent disability rating is assigned for foot injury symptoms of a moderate severity level; a 20 percent disability rating is assigned for foot injury symptoms of a moderately severe level; and a 30 percent disability rating is assigned for foot injury symptoms of a severe level. The Note to DC 5284 indicates that a maximum 40 percent disability rating will be assigned for actual loss of use of the foot. Id. "Loss of use of a foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Other potentially applicable diagnostic codes (5276 through 5283) allow for a separate compensable and/or increased rating for the Veteran's bilateral heel disability symptoms and must be also considered. Additionally, effective February 7, 2021, DC 5269 was added to reflect consideration for plantar fasciitis. However, as an initial matter, the Board notes that the evidence during the appeal period does not reflect diagnoses of plantar fasciitis, weak foot, claw foot, anterior metatarsalgia, hallux rigidus, hammer toes, or malunion of the tarsal or metatarsal bones for consideration under DCs 5269, 5277 through 5279, or 5281 through 5283. Medical treatment records during the appeal period reflect complaints and treatment for bilateral heel pain that worsens when walking or standing and causes instability in locomotion resulting in the Veteran falling a couple of times. X-ray results revealed mild hallus valgus. Lay statements submitted by the Veteran note that his bilateral foot pain, swelling, and stiffness has increased with the mornings being worse, as well as, his experiences of an altered/limited gait and forced abnormal weight distribution that result in the need for orthotics. See Correspondence, May 2011; see also Form 9, May 2016. In a November 2011 VA examination, the examiner diagnosed the Veteran with bilateral hallux valgus and stress heel fractures. Upon examination, the examiner found no evidence of weak foot, claw foot, Morton's disease or metatarsalgia, hammer toes, hallux rigidus, pes cavus, or malunion or nonunion of tarsal or metatarsal bones. The examiner noted the presence of hallux valgus, with symptoms of a mild or moderate nature, bilaterally; however, no surgery for this condition was performed. Other foot injuries were noted and diagnosed as bilateral heel stress fractures of a moderate severity level. The Veteran uses orthotics constantly to assist in locomotion; however, there was no functional impact noted due to his disabilities. See VA treatment record, November 2011. In a November 2015 VA examination, the examiner reported the Veteran's pain in the soles of his feet during the mornings; as well as, noted that the Veteran has chronic feet neuropathy affecting his diminished sensation in the feet, so he must wear high-top boots with bilateral custom sole orthotics. His right arch is slightly higher than the left, so he must also use 1/2 length rigid orthotics to support his arches. Additionally, the examiner prefaced that the Veteran does not have pes planus or other feet deformities. Upon examination, the examiner found no evidence of weak foot, claw foot, Morton's disease or metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, or malunion or nonunion of tarsal or metatarsal bones. The examiner noted the presence of pes planus (flatfoot) that resulted in bilateral pain accentuated on use, with the use of arch supports. Pain was not noted on physical exam of the bilateral feet; however, excess fatigability and plantar stiffness and pain were noted as contributing factors of the disabilities. The examiner noted that pain, weakness, fatigability, or incoordination significantly limits the Veteran's functional ability during flare-ups and when used repeatedly over a period of time, which was described as the need to wear steel-toed work boots while working on steel/concrete floors due to intermittent pain on plantar surface of both feet. The Veteran reported that he uses sole orthotics constantly to help support his arches. See C&P Exam, November 2015. During the April 2019 Board hearing, the Veteran testified to experiencing morning stiffness, soreness, discomfort, and daily pain that limits his ability to stand for more than 2 hours without having issues. Additionally, he testified to having stability problems that led to several slip and falls, and the need for bilateral arch supports in shoes. See Hearing Transcript, April 2019. In a July 2020 VA examination report, the examiner noted the Veteran's reports of mild chronic bilateral foot pain of aching and sharp nature that is always present; with flare-ups of a moderate severity level that varies in frequency and duration depending on the activities and weather, precipitated by prolonged standing, walking, cold weather, damp weather, and weather changes, and alleviated by rest and positional changes. There was reported pain with flare-ups, but no additional weakness, fatigue, or functional loss. The examiner prefaced that the flatfoot (pes planus) section of the exam was filled out only due to there being no other location that would better represent the Veteran's current pedal conditions; however, he does not have flatfeet (pes planus). Upon examination, the examiner found no evidence of weak foot, claw foot, Morton's disease or metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, or malunion or nonunion of tarsal or metatarsal bones. The examiner noted the presence of pes planus (flatfoot) (only for purposes of describing the Veteran's symptoms), which resulted in bilateral pain accentuated on use and bilateral pain accentuated on manipulation with the use of orthotics. Pain was noted on physical exam of the bilateral feet that contributes to functional loss with contributing factors of pain on weight-bearing and interference with standing. The examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit the Veteran's functional ability during flare-ups and when used repeatedly over a period of time. The examiner specifically addressed the Correia criteria (Correia v. McDonald, 28 Vet. App. 158 (2016)) as the Veteran showing pain throughout all movements of the bilateral foot, to include active, passive, and non-weight-bearing, as well as initial range of motion and repetitive testing. See C&P Exam, July 2020. Considering the foregoing, to include consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, the Board finds that increased 20 percent ratings are warranted for the Veteran's right and left heel disabilities. Throughout the period on appeal, the Veteran has continuously complained of pain due to his service-connected bilateral heels that results in functional impairment, to include the decreased ability to walk or stand for prolonged periods and instability. Additionally, the Board notes that VA examinations completed during the appeal period reflect that this pain caused by the bilateral heel disability results in functional loss, to include the Veteran's interference with standing and excess fatigability. Furthermore, the November 2011 VA examiner described the severity of the Veteran's service-connected bilateral heel disability as moderate. Based on the above, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for 20 percent ratings for the Veteran's right and left heel disabilities under DC 5284 are warranted. The Board has also considered the application of DC 5276 pertaining to the Veteran's right and left heel disabilities, in order to warrant a separate rating for flatfoot. See the VA examinations dated November 2015 and August 2020. However, a separate rating is not warranted as the VA examiners specifically noted that the Veteran does not have flatfeet, but instead this section was used to best described the Veteran's reported pain in his bilateral heels. Additionally, even if the Veteran did have flatfeet, the Board notes that as he has already been compensated for manifestations and symptoms of bilateral heel pain under DC 5284, evaluation of the same symptoms under other DCs is duplicative and overlapping; thus, resulting in pyramiding, which must be avoided. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has also considered the application of DC 5280 pertaining to the Veteran's right and left heel disabilities, in order to warrant a separate rating, as the record includes findings of bilateral hallux valgus in VA treatment records and the November 2011 VA examination. Under DC 5280, a 10 percent disability rating is warranted for hallux valgus operated with resection of metatarsal head; and the highest disability rating of 20 percent is warranted for several unilateral hallux valgus, if equivalent to amputation of great toe. 38 C.F.R. § 4.72, DC 5280. Here, the evidence shows that the Veteran has not received surgery from his hallux valgus conditions; and thus, does not rise to the level to warrant a compensable rating under DC 5280. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that an even higher rating for his bilateral heel disability is warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, his lay statements do not provide any basis upon which to assign any higher ratings. The Board has considered the doctrine of the benefit of the doubt in assigning the increased 20 percent ratings, but no higher, and finds that the preponderance of the evidence does not support for the Veteran's disability. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, 20 percent ratings, but no higher, for the right and left heel disabilities are granted. REASONS FOR REMAND 1. Entitlement to service connection for right foot disorder to include as secondary to right heel stress fracture is remanded. The Veteran contends that his current right foot disorder to include arthritis is directly related to an injury that occurred in-service in September 1973; or is otherwise proximately caused or aggravated by his service-connected right heel stress fracture. In August 2020, the Veteran was afforded a VA examination to assess the current nature and etiology of his claimed condition. Upon examination, the examiner diagnosed the Veteran with bilateral foot disorder to include arthritis; however, provided unfavorable opinions as to the right foot disorder being etiologically related to the Veteran's active duty service and as secondary to service-connected right heel stress fracture. Nevertheless, the Board finds these medical opinions to be inadequate for adjudicative purposes, as the examiner failed to consider and/or discuss the Veteran's lay statements regarding the nature and onset of symptoms, to include continuous symptomatology from service and the reported in-service injury in September 1973. Additionally, the examiner noted that the Veteran's condition was not aggravated by his right heel stress fracture due to having a normal gait. However, the examiner failed to address the evidence to the contrary, specifically noted in the September 2012 private treatment record and the Veteran's lay statements, reflecting he has an altered/limited gait. Therefore, the Board finds that the Veteran should be provided addendum VA medical opinions on a direct and secondary basis, prior to readjudication of the claim. Accordingly, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his right foot disorder to include arthritis and obtain any outstanding records and associate them with the Veteran's claims file. 2. After associating all newly acquired records with the claims file, send the claims file back to the August 2020 VA examiner to provide the Veteran with addendum VA medical opinions to determine the nature and etiology of the Veteran's right foot disorder. If the August 2020 VA examiner is not available, obtain the necessary addendum opinion from another appropriate clinician. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. The Veteran should be scheduled for another examination if deemed necessary by the person providing the addendum report to address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) the Veteran's right foot disorder to include arthritis, had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the in-service injured that occurred in September 1973. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right foot disorder to include arthritis was caused and/or aggravated (beyond the natural progression) by his service-connected right heel stress fracture? Please note: the examiner must address both causation and aggravation in providing the opinions requested above. Additionally, the examiner must address the Veteran's altered/limited gait in the requested opinions. (c) Any opinion should include a detailed rationale. The examiner should consider the entire claims file and discuss the Veteran's lay statements regarding the nature and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that he reports must be considered in formulating the requested opinion. (d) If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.