Citation Nr: 21032826 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 20-30 333 DATE: May 28, 2021 ORDER Entitlement to service connection for sinusitis is denied. Entitlement to an initial evaluation in excess of 30 percent for bilateral pes planus is denied. Entitlement to an initial 10 percent evaluation, but no higher, for fracture of proximal and 5th metatarsal of the left foot is granted. REMANDED Entitlement to service connection for headaches, to include as secondary to sinusitis and/or sleep apnea, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to sinusitis and/or service-connected diabetes mellitus, type II, with nephropathy and bilateral cataracts, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran's current sinusitis did not have its onset during active duty service and was not otherwise etiologically related to service. 2. Throughout the appeal period, the Veteran's bilateral pes planus does not more closely approximate pronounced flatfoot, with 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. 3. Resolving all reasonable doubt in favor of the Veteran, throughout the appeal period, his fracture of proximal and 5th metatarsal of the left foot more closely approximates painful motion of the left 5th toe. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to an initial evaluation in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. 3. The criteria for entitlement to an initial 10 percent evaluation, but no higher, for fracture of proximal and 5th metatarsal of the left foot have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5283. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1953 to June 1954 and from December 1954 to August 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the October 2018 rating decision, the RO granted service connection for bilateral flat feet (pes planus) and assigned a 30 percent evaluation, effective February 5, 2018; granted service connection for fracture of proximal and 5th metatarsal, left foot, and assigned a noncompensable evaluation, effective February 5, 2018; and denied service connection for headaches, a left ankle disability, sinusitis, and sleep apnea. The Veteran appealed for higher initial evaluations and service connection. In an October 2020 rating decision, the Veteran was granted service connection for his left ankle disability, an issue that had been on appeal. As this issue has been resolved by a full grant of benefits, and the Veteran has not submitted any documents indicating that he is not satisfied with the decision, the Board finds that the issue is no longer part of the current appeal. See 38 C.F.R. § 19.26(d). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Entitlement to service connection for sinusitis The Veteran generally asserts that he warrants service connection for sinusitis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The question before the Board is whether the Veteran's sinusitis is etiologically related to his active duty service. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for sinusitis is warranted. The evidence demonstrates that the Veteran has a current diagnosis for sinusitis. See October 2018 VA examination. The Veteran's service treatment records (STRs) document that the Veteran sought treatment for and was diagnosed with sinusitis. August 1959 STRs reflect that the Veteran was hospitalized for six days with a history of left frontal headache. His headache was localized over the region of the left frontal sinus, but shortly after the onset, it spread to involve the right side. An examination of the paranasal sinuses showed clouding of the right frontal sinuses. The Veteran was diagnosed with acute sinusitis involving frontal and maxillary sinuses, organism undetermined. A January 1960 STR reflects that the Veteran was treated for a recurrent sinus infection. A March 1960 clinical record documents that the Veteran was diagnosed with chronic, purulent, maxillary sinusitis, organism unknown. April 1960 STRs describe how the Veteran had a right frontal and maxillary chronic sinusitis for several years. An examination revealed that the Veteran had a benign nasal polyp, which was removed from the right side of his nose. In a February 1961 report of medical history, the Veteran reported having sinusitis, and the examiner noted that the Veteran had sinusitis frequently prior to the polypectomy he underwent. Subsequent STRs did not document any further treatment or diagnosis for sinusitis. However, the Veteran continued to report sinusitis on his reports of medical history. See April 1964, June 1964, June 1966, January 1973, and June 1974 reports of medical history. At a June 1974 separation examination, the Veteran had normal clinical evaluations for his nose and sinuses. The examiner noted that the Veteran had sinusitis on the associated report of medical history. VA treatment records do not document any complaints, treatment, or diagnosis for sinusitis. At a July 2019 VA clinic visit, the VA treating physician noted that a CT of the head revealed clear paranasal sinuses. At a subsequent July 2019 VA clinic visit, the VA treating physician noted that the Veteran did not appear to have sinus problems. In October 2018, the Veteran underwent a VA examination. The VA examiner noted that the Veteran currently reported symptoms of episodic sinusitis. After reviewing the Veteran's claims file and conducting an objective evaluation, the VA examiner opined that the Veteran's sinusitis was less likely than not incurred in or caused by his active duty service. On that basis, the VA examiner found that the Veteran's records did not contain any clear continuation of care for sinusitis since service. Overall, the VA examiner found no connection between the Veteran's current sinus findings with any previous service complaints due to the length of time with no treatment and no relevant complaints. The only evidence in support of the Veteran's contentions is his own lay assertions. Lay evidence may be competent to establish a medical etiology or nexus. However, given that the Veteran has not demonstrated that he has specialized medical training or expertise, the Board must find that he is not competent to provide a medical opinion as to the etiology of his current sinusitis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, his lay assertions have little probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for sinusitis. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. 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. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 09-1998. 2. Entitlement to an initial evaluation in excess of 30 percent for bilateral pes planus The Veteran generally asserts that his bilateral pes planus is worse than his current evaluation reflects. The Veteran's bilateral pes planus has been currently evaluated as 30 percent disabling, effective February 5, 2018, under 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board notes that VA has amended the rating criteria for musculoskeletal system disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Diagnostic Code 5276 was not changed by the February 7, 2021 amendments. Under Diagnostic Code 5276, a noncompensable rating is assigned for mild flatfoot with symptoms relieved by built-up shoe or arch support. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with 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, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. Diagnostic Code 5276 rating criteria are not conjunctive. "Cases in which the Court has indicated that 38 C.F.R. § 4.21 applies are those in which the diagnostic criteria are not clearly joined in the conjunctive." Camacho v. Nicholson, 21. Vet. App. 360, 366 (2007); see also Dyess v. Derwinski, 1 Vet. App. 448 (1991) (holding that 38 C.F.R. § 4.21 specifically applies to Diagnostic Code 5276). Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran's bilateral pes planus does not warrant a higher 50 percent evaluation under Diagnostic Code 5276. In other words, the Veteran's bilateral pes planus does not more closely approximate pronounced flatfoot, with 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. At an October 2018 VA examination, the Veteran reported having pain in his feet "all the time." He reported having flare-ups and functional loss characterized by having to wear shoes with good cushion, otherwise he was unable to walk well. Upon objective evaluation, the VA examiner found that the Veteran had accentuated pain on use and accentuated pain on manipulation bilaterally. There was no swelling on use and no characteristic calluses. He tried using orthotics, but he remained symptomatic. There was no extreme tenderness of plantar surfaces on one or both feet. The Veteran had decreased longitudinal arch height of both feet on weight-bearing. There was objective evidence of marked deformity of the left foot. Marked pronation of the left foot was noted and found to be improved by orthopedic shoes. The weight-bearing line fell over or medial to the great toe on the left foot. There was no "inward" bowing of the Achilles' tendon, and no marked inward displacement and severe spasm of the Achilles' tendon. The VA examiner found that there was no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot is used repeatedly over a period of time. At a September 2020 VA examination, the Veteran reported having worsening symptoms of pes planus exhibited by only being able to walk for a few steps before needing to sit down and relax. He reported having plantar foot pain if he stood for too long or walked more than a few steps. He did not report having any flare-ups. He said that he needed to use a cane, walker, or arm of a chair for assistance. Upon objective evaluation, the VA examiner found that the Veteran had accentuated pain on use and accentuated pain on manipulation bilaterally. There were characteristic calluses bilaterally. The Veteran used arch supports, but remained symptomatic. He had extreme tenderness of plantar surfaces on both feet. The tenderness was improved by orthopedic shoes or appliances. There was no decreased longitudinal arch height of one or both feet on weight-bearing. Objective evidence of marked deformity of both feet was noted. Marked pronation of both feet was noted and found to be improved by orthopedic shoes or appliances. The weight-bearing line fell over or medial to the great toe on both feet. The Veteran had "inward" bowing of the Achilles' tendon on both feet. There was no inward displacement and severe spasm of the Achilles' tendon. Pain on physical examination contributed to functional loss, but there was no other functional loss found during flare-ups or when the foot is used repeatedly over a period of time. The VA examiner found that pain, weakness, fatigability, or incoordination that did not significantly limit functional ability during flare-ups or when the foot is used repeatedly over a period of time. The Board is sympathetic to the Veteran's reports that he experienced bilateral foot pain with prolonged standing, that he had a loss of mobility with only being able to walk a short distance, and that he needed to use a cane, walker, or arm of chair for assistance. However, the Veteran's bilateral pes planus symptoms do not more closely approximate the 50 percent rating criteria under Diagnostic Code 5276. Although the clinical findings at the Veteran's September 2020 VA examination show that the Veteran had marked pronation and extreme tenderness of plantar surfaces, both symptoms were shown to be improved by orthopedic shoes and appliances. That same examination did not find inward displacement and severe spasm of the Achilles' tendon. Accordingly, the Board concludes that there is no basis upon which to award a higher 50 percent evaluation under Diagnostic Code 5276. Therefore, the Veteran's bilateral pes planus is no more than 30 percent disabling. The Board considered whether any other relevant diagnostic provided a higher evaluation for the Veteran's bilateral pes planus. However, the evidence did not demonstrate that the Veteran's bilateral pes planus exhibited symptoms that were not already encompassed by Diagnostic Code 5276. Thus, the Board finds that there is no other available diagnostic code to assign a higher evaluation for the Veteran's bilateral pes planus. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's higher than 30 percent initial evaluation claim for bilateral pes planus. Therefore, the benefit-of-the-doubt rule does not apply, and the higher initial evaluation claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a compensable evaluation for fracture of proximal and 5th metatarsal of the left foot The Veteran generally asserts that his fracture of proximal and 5th metatarsal of the left foot is worse than his current evaluation reflects. The Veteran's fracture of proximal and 5th metatarsal of the left foot has been currently evaluated as noncompensable, effective February 5, 2018, under 38 C.F.R. § 4.71a, Diagnostic Code 5283. The Board notes that VA has amended the rating criteria for musculoskeletal system disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Diagnostic Code 5283 was not changed by the February 7, 2021 amendments. A 10 percent rating is assigned for moderate symptoms of tarsal or metatarsal bones with malunion or nonunion. A 20 percent rating is assigned for moderately severe symptoms of tarsal or metatarsal bones with malunion or nonunion. A maximum 30 percent rating is assigned for severe symptoms of tarsal or metatarsal bones with malunion or nonunion. A Note provides a 40 percent rating for tarsal or metatarsal bones with malunion or nonunion and with actual loss of use of the foot. The rating schedule does not define the terms "moderate," "moderately severe," and "severe" as used in this diagnostic code. Adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that his fracture of the proximal and 5th metatarsal of the left foot warrants a 10 percent evaluation, but no higher. Viewing the evidence in the light most favorable to the Veteran, the Board finds that the clinical findings at the September 2020 VA examination provides the most probative evidence concerning the current severity of the Veteran's fracture of the proximal and 5th metatarsal of the left foot. On that basis, the September 2020 VA examiner found that the Veteran's 5th toe aches with cold weather, and his symptoms were of mild severity. The VA examiner found that his service-connected left foot disability did not chronically compromise weight bearing. Based on the above, the Board finds that throughout the appeal period, the Veteran's fracture of the proximal and 5th metatarsal of the left foot warrants a 10 percent evaluation for painful motion under 38 C.F.R. § 4.59. However, given that the Veteran's symptoms do not more closely approximate moderately severe symptoms of tarsal or metatarsal bones with malunion or nonunion, the Board concludes that a higher 20 percent evaluation is not warranted under Diagnostic Code 5283. Therefore, the Veteran's fracture of the proximal and 5th metatarsal of the left foot is no more than 10 percent disabling. In summary, resolving all reasonable doubt in favor of the Veteran, a higher 10 percent initial evaluation, but no higher, for fracture of the proximal and 5th metatarsal of the left foot is warranted. Therefore, the higher initial evaluation claim must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as secondary to sinusitis and/or sleep apnea, is remanded. The record includes an October 2018 VA examination and a September 2020 VA examination. However, the VA examiners disagree concerning whether the Veteran has a current headache diagnosis. Furthermore, the October 2018 and September 2020 VA examiners both found that the evidence did not show that the Veteran had continuous care for a headache condition since service. Yet, those same examination reports note that the Veteran reported receiving treatment at a private headache clinic from 1992 to 1993, but those private treatment records are not in the record. For the above reasons, a remand is required to obtain the Veteran's private treatment records and to obtain a clarifying medical opinion regarding the Veteran's headache diagnosis. 2. Entitlement to service connection for sleep apnea, to include as secondary to sinusitis and/or service-connected diabetes mellitus, type II, with nephropathy and bilateral cataracts, is remanded. In a September 2020 VA opinion, the VA examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected diabetes mellitus, type II, with nephropathy and bilateral cataracts. No opinion was provided that addressed the aggravation prong for secondary service connection; therefore, it is inadequate for adjudicative purposes. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Accordingly, a remand is required to obtain a supplemental VA opinion. Additionally, the record shows that the Veteran had received his initial diagnosis for sleep apnea at a private facility in 2009. The record does not contain any private treatment records from that facility. Because these private treatment records may provide information to substantiate the Veteran's service connection claim, a remand is required to allow VA to perform the necessary steps to obtain those treatment records. The matters are REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran's headaches and sleep apnea that are not currently of record, to include private treatment records at the headache clinic in Meadville from 1992 to 1993 and 2009 private treatment records for the Veteran's sleep apnea. 2. Obtain an addendum opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's headaches. The examiner should respond to the following: (a.) Confirm whether the Veteran has a current headache diagnosis. The examiner must address the Veteran's documented treatment for headaches during the pendency of the appeal. With regard to the diagnosis, the examiner must resolve the conflicting findings of the October 2018 and September 2020 VA examinations. (b.) Is it at least as likely as not that the Veteran's current headaches are related to his active duty service, to include his in-service headaches? (c.) Is it at least as likely as not that the Veteran's current headaches are caused by his sleep apnea? (d.) Is it at least as likely as not that the Veteran's current headaches are aggravated beyond its natural progression by his sleep apnea? A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 3. Obtain an addendum opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's sleep apnea. The examiner should opine as to whether the Veteran's sleep apnea is at least as likely as not aggravated beyond its natural progression by his service-connected diabetes mellitus, type II, with nephropathy and bilateral cataracts. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 4. Readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, then send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.