Citation Nr: 21032273 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 12-28 742 DATE: May 26, 2021 ORDER Prior to July 10, 2018, an initial 10 percent rating for right foot fracture residuals is granted. Prior to February 25, 2019, an initial 10 percent rating for left calcaneal spurs is granted. From February 25, 2019, an initial rating higher than 10 percent for left calcaneal spurs is denied. A separate 50 percent rating for pes planus from February 25, 2019 is granted. Prior to November 8, 2007, an initial 10 percent rating for right wrist fracture residuals is granted. From November 8, 2007, an initial rating higher than 10 percent for right wrist fracture residuals is denied. Service connection for a cervical spine disability is denied. Service connection for a left upper extremity disability is denied. Service connection for a right upper extremity disability is denied. REMANDED An initial compensable rating for left knee tendonitis prior to March 21, 2018, and higher than 10 percent, thereafter, is remanded. An initial compensable rating for bilateral hearing loss is remanded. Service connection for a left hand disability is remanded. Service connection for a right knee disability is remanded. FINDINGS OF FACT 1. Prior to July 10, 2018, the Veteran's right foot fracture residuals were moderate and characterized by pain. 2. The Veteran's left foot calcaneal spurs were moderate and characterized by pain for the entire appeal period. 3. From February 25, 2019, the Veteran had pronounced bilateral pes planus associated with his service-connected bilateral feet disabilities. 4. The Veteran's right wrist fracture residuals were manifested by pain and some limitation of motion during the entire appeal period. 5. The preponderance of the evidence is against finding that a cervical spine disability 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 a left upper extremity disability began during active service, is related to an in-service injury or disease, or is secondary to a service-connected disability. 7. The preponderance of the evidence is against finding that a right upper extremity disability began during active service, is related to an in-service injury or disease, or is secondary to a service-connected disability. CONCLUSIONS OF LAW 1. Prior to July 10, 2018, an initial 10 percent rating for right foot fracture residuals have 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 Code (DC) 5284. 2. The criteria for an initial 10 percent rating for left calcaneal spurs for the entire appeal period have 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, DC 5284. 3. The criteria for a separate 50 percent rating for pes planus from February 25, 2019 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5276. 4. The criteria for an initial 10 percent rating for right wrist fracture residuals for the entire appeal period have 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, DC 5215. 5. The criteria for service connection for cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a left upper extremity disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for a right upper extremity disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from March 1987 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in January 2021. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Right foot fracture residuals prior to July 10, 2018 The Veteran's right foot fracture residuals are rated under 38 C.F.R. § 4.71a, DC 5284, for other foot injuries. Prior to July 10, 2018, he is assigned a 0 percent rating. From that date, he is assigned a 30 percent rating. Under DC 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to DC 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree". See www.merriam-webster.com/dictionary/severe. At his Board hearing, the Veteran indicated on that record that he was satisfied with the 30 percent rating assigned as of July 10, 2018. Therefore, the Board will consider whether an increased rating is warranted prior to that date. The Board finds that a 10 percent rating is warranted during this period. Notably, for most of the early part of the rating period, there are no specific findings pertaining to the right foot. However, the Veteran has presented credible evidence of having pain in his foot during that time. It is the intent of the rating schedule to recognize painful motion with joint or periarticular pathology as productive of disability and entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. Therefore, a minimum 10 percent rating is warranted. This is also consistent with April 2008 and August 2015 VA examinations which noted pain with prolonged standing, and a March 2018 VA examination which characterized the Veteran's condition as "moderate." A higher 20 percent rating is not warranted because the evidence does not show a "moderately" severe level of impairment. As noted, the March 2018 VA examiner stated the Veteran's right foot disability was moderate. Although descriptive statements from examiners are not dispositive, the Board nonetheless finds it to be the most probative evidence in assessing the overall severity of the condition. Left calcaneal spurs The Veteran's left calcaneal spurs are also rated under DC 5284. Prior to February 25, 2019, he is assigned a 0 percent rating. From that date, he has a 10 percent rating. As with his right foot, however, he has presented credible evidence of left foot pain during the period on appeal, and therefore a minimum 10 percent rating pursuant to 38 C.F.R. § 4.59 is warranted prior to February 25, 2019. A higher 20 percent rating is not warranted either prior to or after that date, however. The February 2019 VA examination specifically characterized the Veteran's left foot disability as moderate, consistent with the 10 percent rating under DC 5284. Pes planus from February 25, 2019 During the February 2019 VA examination, the Veteran was diagnosed with pes planus. The examiner explained that this was a progression of the Veteran's service-connected foot disabilities, which caused weakened plantar fascia due to pain with resultant flat arches. DC 5276 addresses acquired flatfoot. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The February 2019 VA examiner stated that the Veteran had marked pronation, extreme tenderness, and accentuated pain on use and manipulation of the feet, and that these symptoms were not improved by arch supports. Therefore, resolving any doubts in the Veteran's favor, the criteria for a 50 percent rating are met. Right wrist fracture residuals The Veteran's wrist fracture residuals are currently rated under DC 5215, which provides a single 10 percent rating for limitation of motion of the wrist when dorsiflexion of the wrist is less than 15 degrees, or when plantar flexion is limited in line with the forearm. Prior to November 8, 2007, he is assigned a 0 percent rating. From that date, he has the 10 percent rating. There is little evidence of the state of the Veteran's wrist disability prior to November 8, 2007. However, he has provided credible evidence of pain during that time. Therefore, he is entitled to the minimum compensable rating pursuant to 38 C.F.R. § 4.59. The 10 percent rating assigned for the Veteran's right wrist fracture residuals is the maximum schedular rating available under DC 5215. Higher ratings are assigned under DC 5214 only when ankylosis is present. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). In this case, multiple VA examinations from 2008 through 2019 document the absence of any ankylosis, and the Veteran did not testify that ankylosis or related symptomatology was present during his Board hearing. Therefore, a rating higher than 10 percent is not warranted. 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. Cervical spine disability Left upper extremity disability Right upper extremity disability Because the facts of these claims are similar, they will be addressed together. The Veteran contends that he sustained a neck or cervical spine disability, and bilateral upper extremity disabilities, due to a tire explosion during service. He has diagnoses of cervical spine degenerative arthritis and spondylosis; bilateral epicondylitis; and bilateral shoulder strain, rotator cuff tendonitis, and AC joint osteoarthritis. However, the preponderance of the evidence is against finding that they began during active service, or are otherwise related to an in-service injury, event, or disease. Service treatment records clearly document the tire explosion which occurred in service in August 1988. However, while the Veteran was treated for various injuries associated with this incident, there is no indication that he also incurred a cervical spine or upper extremity disability at that time, other than his service-connected right wrist disability and the left hand disability discussed below. Notably, his treatment records also show complaints and treatment for a lumbar spine condition, and his April 1995 separation examination includes a summary of these and other complaints. Therefore, the lack of any mention of the cervical spine or other upper extremity disabilities in his records strongly suggests that no such injuries or symptoms were present at that time. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). In that regard, the Board finds these contemporaneous records to be more probative than his recent statements asserting that a cervical spine or upper extremity disability had its onset during service. Therefore, the preponderance of the evidence weighs against the claim, and service connection on a direct basis is not warranted. The Veteran has also asserted that his upper extremity disabilities are secondary to his cervical spine. As service connection for the cervical spine is not established, service connection for disabilities secondary to it is not warranted. REASONS FOR REMAND Increased rating for left knee tendonitis Increased rating for bilateral hearing loss During his January 2021 Board hearing, the Veteran asserted that his left knee and hearing loss disabilities increased in severity since he was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of these conditions. Service connection for a left hand disability VA treatment records from October 2017 diagnosed carpal tunnel syndrome of the left hand, including numbness of the thumb and index finger. Service treatment records show he sustained a left hamate chip fracture in August 1988 secondary to a tire explosion. In November 1989, he was seen for numbness of the middle finger and possible cold weather injury. He should be afforded a VA examination to determine the relationship, if any, between his current disability and the injuries in service. Service connection for a right knee disability VA examinations in April 2018 and February 2019 diagnosed right knee strain. During his April 1995 separation examination, the Veteran reported a history of right knee popping, swelling, and giving out. To date, however, no examiner has commented on the relationship, if any, between the current disability and the symptoms reported in service. Notably, the February 2019 VA examiner stated that the Veteran's bilateral knee pain was a progression of his service-connected disability. However, the Veteran is presently service-connected for only his left knee, and it is not clear whether the examiner is linking the right knee to the left knee, or whether the examiner mistakenly characterized the right knee as already being service-connected. Therefore, the new opinion obtained on remand should also address secondary service connection. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee tendonitis. The examiner should provide a full description of the disability and report all signs and symptoms associated with the disability. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms associated with the disability. 3. Schedule the Veteran for a VA examination for his left hand disability. 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(s) below. The examiner is asked to provide a response to the following: Is any current disability, including left carpal tunnel syndrome, at least as likely as not related to service, including a left hamate chip fracture in August 1988, and left middle finger cold exposure in November 1989? Provide a rationale to support the opinion(s). 4. Schedule the Veteran for a VA examination for his right knee disability. 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(s) below. The examiner is asked to provide a response to the following: Is any current disability at least as likely as not related to service, including the history of popping, swelling, and giving out reported by the Veteran during his April 1995 separation examination. Provide a rationale to support the opinion(s). Is any current right knee disability at least as likely as not proximately due to left knee tendonitis? Is any current right knee disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by left knee tendonitis? Provide a rationale to support the opinion(s). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.