Citation Nr: 21039916 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-18 603 DATE: July 1, 2021 ORDER Entitlement to an initial 30 percent rating from September 3, 2009, to January 22, 2015, for residuals of a fracture of the right foot is granted. Entitlement to an initial 30 percent rating effective September 3, 2009, to January 22, 2015, for residuals of a fracture of the left foot is granted. REMANDED Entitlement to service connection for a bladder disorder is remanded. FINDINGS OF FACT 1. The evidence shows that, from September 3, 2009, to January 22, 2015, the Veteran's residuals of a fracture of the right foot manifested a severe foot injury. 2. The evidence shows that, from September 3, 2009, to January 22, 2015, the Veteran's residuals of a fracture of the left foot manifested a severe foot injury. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating from September 3, 2009, to January 22, 2015, for residuals of a fracture of the right foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. 2. The criteria for an initial 30 percent rating from September 3, 2009, to January 22, 2015, for residuals of a fracture of the right foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from July to November 2002 and on active duty from July 2006 to September 2009. The matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2010 and March 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in October 2018 for further development by the RO. The case has been returned to the Board for further appellate action. In January 2015 and June 2015, prior to certification of the appeal to the Board, VA received from the Veteran two VA Form 21-22s, Appointment of Veterans Service Organization as Claimant's Representative, naming George Cicotte and Scott Boyce as his representatives. As both Mr. Cicotte and Mr. Boyce are unaccredited agents, they cannot be recognized as representatives in this case under 38 C.F.R. §§ 14.629 and 14.630, however. See 38 C.F.R. §§ 14.629, 14.630 (2019). In an April 2021 letter, the Board informed the Veteran that it could not accept his submitted VA Form 21-22 as a valid appointment. The letter explained that he could seek other representation or proceed without representation. Thereafter, in April 2021, he submitted another VA Form 21-22, again naming Scott Boyce as his representative. As Mr. Boyce remains an unaccredited agent, the Board cannot accept the April 2021 VA Form 21-22 as a valid appointment of representation. Id. Therefore, the Veteran is considered unrepresented. Increased Rating 1. Entitlement to an initial 30 percent rating for residuals of a fracture of the right foot 2. Entitlement to an initial 30 percent rating for residuals of a fracture of the left foot The Veteran's residuals of a fracture of the right and left foot are rated under DC 5284. The Board notes at the outset that the Veteran is service-connected for acquired bilateral pes planus, which is rated at 50 percent, effective January 22, 2015, and bilateral ankle traumatic arthritis, which is rated at 10 percent, effective September 3, 2009, and 20 percent, effective August 30, 2010. On review of the record, the Board finds that the criteria for separate initial 30 percent ratings prior to January 22, 2015, for residuals of a right foot fracture and for residuals of a left foot fracture have been met. The Veteran underwent a VA examination in November 2009. The examiner noted constant, aching pain on both legs, with an intensity of 7/10. This was aggravated by standing and walking and relieved by not putting weight on them and taking methadone. Flare-ups were noted with standing and walking. They lasted hours and occurred weekly. The severity was noted as moderate. There was no additional limitation of motion or other functional impairment. The foot examination noted bilateral painful motion and tenderness, as well as tenderness on palpation of the dorsal aspect of the right foot. The Veteran underwent another VA examination in October 2010. A radiology report indicated that three views of the right foot demonstrate no bone or joint abnormality; it indicated normal anatomy of the left foot, but for a small dorsal calcaneal spur. He reported that the condition existed since the in-service injury of March 2007. His foot is in constant pain. It is crushing, aching, sharp, cramping and radiating. The pain level is at 7 of 10. It is exacerbated by activity, standing and walking. It is relieved by rest and medication. When in pain, he can temporarily function with medication. He also reported pain, weakness and stiffness at rest. With standing or walking, he has pain, weakness, stiffness, swelling, and fatigue. Treatment was noted as 5 milligrams of methadone four times per day. He reported being impaired from doing daily activities, such as housework or meal preparation, when in pain. Upon physical examination, the examiner noted a normal gait, steady walking, and no signs of abnormal weight-bearing or breakdown, callosities or any unusual shoe wear pattern. He does not require any assistive device for ambulation. The examiner further noted painful motion, weakness and tenderness of both feet, but no edema, disturbed circulation, atrophy, heat, redness or instability. There is active motion in the metatarsophalangeal joint of the bilateral great toes. He has limitations with standing and walking, which he can do to a quarter mile. The examiner also noted no pes planus, pes cavus, hammer toes, Morton's Metatarsalgia, hallux valgus, and hallux rigidus. The Veteran underwent another VA examination in January 2012. He reported constant bilateral foot pain that radiates. The pain is crushing, burning, aching, sharp and sticking. The pain level is a 9 of 10. It is exacerbated by activity and alleviated by rest and medication. He can function with medication at the time of pain. He has pain and weakness at rest. While standing or walking, he has pain, weakness, swelling and fatigue. Upon examination, the examiner noted a normal gait. There was pain to palpation and bilateral painful motion, weakness and tenderness. No edema, disturbed circulation, atrophy, heat, redness or instability were noted. There is active motion in the metatarsophalangeal joint of the bilateral great toes. No other foot diagnoses were noted. It was noted that shoe inserts are required, although these do not relieve pain or symptoms. The radiology report noted a normal right foot and a stable achilles calcaneal spur of the left foot, with an otherwise negative study and no change since October 2010. The examiner also submitted a disability benefits questionnaire (DBQ) that indicated there were no additional foot diagnoses. No assistive devices were noted. Functional impact was noted, namely, that the Veteran cannot walk for more than a quarter block at a time, he cannot stand for prolonged periods, and he cannot run. A March 2013 VA treatment record noted chronic ankle/foot pain. VA treatment records dated April 2013 and October 2013 noted pain in the back, legs, ankles and feet, rated as a 7 of 10. A May 2014 VA treatment record noted bilateral chronic foot and back pain. The Veteran underwent another VA examination in June 2015. The radiology report noted a negative study of both feet. The examiner noted that the diagnoses changed from status-post foot fracture to bilateral pes planus. The examiner noted the Veteran had undergone surgery within the past two years, was diagnosed with traumatic arthritis for the bilateral foot/ankle, was experiencing increased pain and that the orthopedist was now recommending total bilateral ankle replacement. The examiner also noted that the Veteran is unable to do chores such as outdoor maintenance and sports; all activities are severely curtailed; he cannot drive more than 30 minutes and distance travel is severely limited. The examiner noted that he has developed flat feet bilaterally. The Veteran reported that the pain has gotten worse. He has constant pain in both legs, which is made worse by standing and walking. This causes difficulty ambulating. Injections and surgery have not helped. Weather changes and light housework exacerbate his pain. He reported many forms of pain in each damaged area, as well as symptoms such as tingling, hypersensitivity, and limited function/mobility. He reported flare-ups, which consist of an inability to walk, swelling, and intense aching. Pes planus was noted. Symptoms were noted as bilateral pain on use and bilateral pain on manipulation. No other diagnoses were noted. Bilateral arch supports were tried but the condition remained symptomatic. The foot injury of heel spurs/peroneal reconstruction was noted as moderate on the right side. It chronically compromised weight-bearing and required arch supports, inserts or modifications. He underwent surgery in 2014. Residuals were noted as stiffness and pain. Upon examination, pain on movement and pain with and without weight-bearing was noted in both feet. Interference with standing was also noted. There was no additional pain, weakness, fatigability or incoordination with repeated use over time or other function loss with a flare-up or with repeated use over time. Regular use of a brace and cane were noted. No arthritis was noted for either foot. The functional impact of the condition was noted as standing, walking and load-carrying. In January 2015, the Veteran submitted a VA Form 21-4138 (statement in support of claim) referencing a private medical evaluation and requesting a 30 percent rating throughout the appellate period. In June 2015, the Veteran submitted a private medical treatment record by Dr. O.H., an orthopedic surgeon. This medical examination notes that that there was severe pain and decreased mobility of both feet. In addition to the fractures, he has a significant soft tissue injury. The fractures have healed but the soft tissues will never be the same. In the June 2015 regional office hearing, the Veteran's representative indicated that Dr. O.H. is the Veteran's treating physician of many years. He is an orthopedic doctor whereas the prior VA examination was not conducted by a specialist. The Veteran stated that the previous examiners did not really look at his feet. He stated that during the examination he was unable to perform certain manipulations with his feet because it was too painful during the prior examination. In November 2019, the Veteran underwent another VA examination. He reported aching, stabbing pain bilaterally. He did not report flare-ups. He reported inhibited walking due to pain. The diagnosis of pes planus was noted. Pain was noted upon physical examination, and it contributed to functional loss. Pain on movement and pain on weight-bearing were noted. There was no additional pain, weakness, fatigability or incoordination with repeated use over time or flare-up or other function loss with a flare-up or with repeated use over time. Occasional use of a wheelchair or crutch was noted. Functional impact was noted as inhibited prolonged standing or walking. Furthermore, the examiner noted that he reviewed all available records, to include lay information. He was unable to distinguish the symptoms of the fractures with those of the ankles and flat feet without resorting to mere speculation. On review of the record, the Board finds that the disability picture presented more accurately reflects separate initial 30 percent ratings prior to January 22, 2015, for the right and left foot fracture residuals, respectively. The Veteran consistently has reported severe pain and related functional impairment. His symptoms, as noted in the treatment records and examination reports set out above, include constant, very high levels of pain as well as flare-ups or exacerbations with activity. These symptoms are alleviated with either rest or medication. He reported in the October 2010 and January 2012 VA examinations that when he is in pain, he can function with medication only temporarily. The Board notes that a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Moreover, the June 2015 private examination by Dr. O.H. noted a severe level of pain and limited motion as well as irreversible soft tissue damage. The Board does not find that an initial rating greater than 30 percent prior to January 22, 2015, is warranted. No examination report of medical treatment record indicates that the Veteran has incurred a foot injury that resulted in the actual loss of his foot. From January 22, 2015, forward, the Board notes that the June 2015 VA examination indicated that the diagnoses changed to pes planus. The November 2019 VA examiner noted that, upon review of the record and consideration of the Veteran's lay statements, it was not possible to distinguish the symptoms of the bilateral foot fractures from the symptoms of the other service connected disabilities, to include bilateral ankle disabilities and pes planus, without speculation. Here, effective January 22, 2015, the Veteran's bilateral pes planus is rated at 50 percent. This rating is the highest rating available under DC 5276. The rating contemplates manifestations of pain on manipulation and use of feet. Therefore, continuing separate ratings for right and left foot fracture residuals under DC 5284 beyond this date constitutes pyramiding, as it would compensate the Veteran twice for the same symptomatology (in this case, pain and limited use and/or motion). See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In summary, the Board finds that the criteria for separate initial 30 percent ratings effective from September 3, 2009, to January 22, 2015, for residuals of a right foot fracture and for residuals of a left foot fracture have been met. REASONS FOR REMAND 1. Entitlement to service connection for a bladder disorder is remanded. The Board finds that additional development is necessary prior to appellate review. Pursuant to the October 2018 Board remand directives, the RO obtained a November 2019 VA examination and medical opinion. The examiner did not indicate, however, whether a diagnosis of a bladder or urethra of the urinary tract was present because this question was not answered on the examination report. The examiner did identify a voiding dysfunction and found that the documentation of record notes urinary voiding problems without a known etiology. The Board finds that the November 2019 medical opinion is inadequate for VA adjudication purposes. It does not address a private medical treatment record received by VA in February 2012 indicating that the Veteran has had bladder hesitancy since his in-service injury that was not evaluated previously. These symptoms fluctuate with the degree of back pain which he experiences. When he is very symptomatic, he has substantial difficulties starting and stopping and he has never had normal control. He reported at least three years of bladder hesitancy. The clinician also noted that his bladder hesitancy may be related to his lower extremity injuries or back pain. Another private medical treatment record received by VA in February 2012 indicates that the Veteran initially denied incontinence but, upon further questioning, he reported difficulty initiating and emptying which has occurred over the past several years and recently worsened. He partially attributed this to his injuries. The Board notes that the Veteran's purported representative raised the argument that a bladder condition may be secondary to his service-connected lower extremity or lumbar spine disabilities. To date, no examiner has opined whether the Veteran's claimed bladder condition is secondary to the service-connected disabilities or whether it is a neurologic abnormality associated with the service-connected lumbar spine disability. Given the foregoing, this issue must be returned for another opinion which addresses this matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). The RO also should attempt to obtain the Veteran's updated treatment records. The matter is REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Thereafter, forward the claims file and a copy of this REMAND to a clinician for an opinion concerning the nature and etiology of the Veteran's claimed bladder disorder. If possible, this opinion should be provided by a clinician other than the clinician who provided the November 2019 medical opinion. The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s). Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bladder disorder, if present, is related to active service. The clinician next is asked to state whether it as likely as not (i.e., a 50 percent or greater probability) that a service-connected disability caused or aggravated a bladder disorder, if diagnosed. If there is no current bladder disorder diagnosed, then the clinician is asked to state whether the Veteran's documented bladder or urination problems are an objective neurological abnormality associated with the service-connected lumbar spine disability. A rationale must be provided for any opinions(s) expressed. A separate opinion and rationale should be provided for each bladder disorder experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a bladder disorder, alone, is insufficient rationale for a medical opinion. The clinician also is advised not to review or rely upon a November 2019 medical opinion in preparing his or her own opinion. 3. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.