Citation Nr: 21040305 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-02 217 DATE: July 3, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for left foot hallux valgus is denied. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to an initial evaluation in excess of 20 percent, prior to August 14, 2019, and in excess of 10 percent thereafter for a lumbar strain is remanded. Entitlement to an initial evaluation in excess of 20 percent, prior to August 14, 2019, and in excess of 10 percent thereafter, for a cervical strain is remanded. Entitlement to an initial evaluation in excess of 10 percent for bilateral pes planus is remanded. Entitlement to an initial compensable evaluation for mild restrictive lung disease is remanded. FINDINGS OF FACT 1. A 10 percent rating for a unilateral hallux valgus is the maximum rating allowable for this disability and the Veteran's symptoms are fully contemplated by the applicable rating criteria. 2. The Veteran does not have a current diagnosis of sleep apnea. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left foot hallux valgus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.71a, Diagnostic Code 5280. 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2007 to June 2014. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, these matters were remanded for additional development. 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial evaluation in excess of 10 percent for left foot hallux valgus The Veteran asserts that he should be in receipt of a higher rating for hallux valgus of the left foot and alleges his symptoms are more severe than that which is reflected by the current rating assigned. The Veteran's service-connected left foot hallux valgus disability is currently assigned rating of 10 percent under Diagnostic Code 5280, effective from June 28, 2014, the day after the Veteran left active duty service. Foot disabilities are governed by the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5276 through 5284. Diagnostic Code 5280 provides ratings for hallux valgus, unilateral. Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for hallux valgus, operated with resection of the metatarsal head, or for hallux valgus that is severe, if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a. The Veteran was afforded a VA examination in September 2013. The examiner diagnosed the Veteran with mild left foot hallux valgus. The examiner noted that the date of onset for the Veteran's left foot hallux valgus symptoms was in 2008. During the exam the Veteran stated that he had been having pain in his left foot constantly and at times the pain is worse with physical activity and relieved with rest. The Veteran also reported limitations with standing and walking, noting he is able to stand for 15 to 30 minutes, and requires arch supports, but pain is not relieved with corrective shoe wear. As noted above, the 10 initial percent ratings are the maximum ratings available rating under Diagnostic Code 5280. As a result, a rating in excess of 10 percent under Diagnostic Code 5280 is not available. Thus, there is no adequate schedular basis on which to award a rating in excess of 10 percent under Diagnostic Code 5280. Based on the evidence, the Board does not find that the Veteran is entitled to initial evaluations in excess of 10 percent for hallux valgus of his left foot. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, and the holdings in DeLuca. DeLuca v. Brown, 8 Vet. App. 202. First, the provisions of DeLuca only apply when a Diagnostic Code is predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 9 (1996). Here, Diagnostic Code 5280 is not based on limitation of motion. Even assuming DeLuca applies, as noted above, the Veteran has presented with complaints of pain. These symptoms have been reported and remarked upon by VA health care providers throughout the time period on appeal, and have been included and considered in the VA examination. As such, the Veteran's subjective complaints are fully contemplated by the initial evaluations of 10 percent for the foot disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Although 10 percent is the maximum rating available for hallux valgus, hallux rigidus, or hallux limitus, the Board must consider the assignment of an increased evaluation under other potentially applicable codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). However, as the Veteran's disability is hallux valgus, which is specifically contemplated by Diagnostic Code 5280, evaluation under the general category of Diagnostic Code 5284 for other foot injuries is inappropriate. See Copeland v. McDonald, 27 Vet. App. 333 (2015) (holding that when a condition is specifically listed in the Schedule, it may not be rated by analogy). Similarly, the Board also does not find that extraschedular consideration is warranted without the report or evidence of symptoms that are not contemplated by the applicable rating criteria. Simply put, the Board finds that the symptoms of which the Veteran has complained are already contemplated by Diagnostic Code 5280, including pain on manipulation and use of the feet. With respect to Diagnostic Code 5276 related to pes planus, the Veteran is already service connected for pes planus and this disability is also being evaluated under the instant appeal stream. The Board has also considered entitlement to a separate or higher evaluation under Diagnostic Codes 5266 (flatfoot), 5277 (weak foot), 5278 (claw foot), 5279 (metatarsalgia (Morton's disease)), 5281 (hallux rigidus), and 5282 (hammer toe). 38 C.F.R. § 4.71a. However, there is no objective medical evidence showing symptomatology that warrants a compensable rating under any of the aforementioned diagnostic codes. Higher ratings are not warranted under Diagnostic Code 5266 as there is no evidence of marked pronation or other deformity in either foot. Higher ratings are not warranted under Diagnostic Code 5278 as there is no evidence of dorsiflexion of the great toe or all toes. The Board accepts that the Veteran is competent to report his belief that his disability is worse than evaluated. However, the Veteran's belief that he is entitled to a rating in excess of 10 percent for his left foot hallux vagus disability is outweighed by the objective medical findings of record in the context of the applicable rating criteria. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran than to the Veteran's general belief that he is entitled to higher ratings. Consideration has been given to assigning staged ratings. However, at no time during the period in question has either disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this regard, the Board notes that the Veteran was shown to have mild or moderate symptoms of hallux valgus and increased pain with physical activities. The Board also acknowledges that the Veteran reported pain during his VA examination. However, the Board reiterates that the Veteran is currently in receipt of 10 percent evaluations for his left foot hallux valgus disability, which is the schedular maximum rating provided under Diagnostic Code 5280. Accordingly, based on all of the foregoing, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the left foot hallux valgus disability, and that the Veteran's claim for a higher schedular rating must therefore be denied. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for sleep apnea The Veteran asserts that he should be service connected for sleep apnea. In the February 2019 Board decision, the Board remanded this claim to obtain any outstanding private treatment records relating to a sleep study based on a referral from November 2016 and any other records relating to the Veteran's claimed sleep apnea. Treatment records after the remand indicate that the Veteran had a sleep study conducted in December 2016. Pursuant to the remand, the Veteran was also asked to provide information regarding any private facilities that had treated his claimed sleep apnea, but the Veteran did not provide the requested information. With respect to the Veteran's claim for service connection for sleep apnea, the threshold question that must first be addressed is whether the Veteran has the disability for which service connection is sought. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Turning to the medical evidence at hand, the Veteran was afforded a sleep study in December 2016 at a private facility, which did not show the existence of a disability, or any indication for further sleep study testing. Consequently, the Board finds that the weight of the evidence does not demonstrate that the Veteran has a current diagnosis of sleep apnea. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The weight of the evidence does not demonstrate a current diagnosis of sleep apnea and thus, there is no current diagnosis of sleep apnea to attribute to his active duty service, irrespective of the standard of proof required to establish the occurrence of a stressor in service. Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). To the extent that the Veteran has indicated that he currently has sleep apnea, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's assertions made during the course of his claim for VA benefits. Moreover, as the question of diagnosis and causation extends beyond an immediately observable cause-and-effect relationship, he is not competent to render a diagnosis or address etiology in the present case. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, whether the Veteran currently has sleep apnea, is found to fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea, and that the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 20 percent, prior to August 14, 2019, and in excess of 10 percent thereafter for a lumbar strain is remanded. 2. Entitlement to an initial evaluation in excess of 20 percent, prior to August 14, 2019, and in excess of 10 percent thereafter, for a cervical strain is remanded. 3. Entitlement to an initial evaluation in excess of 10 percent for bilateral pes planus is remanded. The Veteran seeks increased ratings for his service-connected lumbar strain, cervical strain, and bilateral pes planus. Regrettably, a remand is necessary for further evidentiary development of these claims. Pursuant to the February 2019 Board remand, the record indicates that the Veteran was scheduled for VA examinations in December 2019, but the Veteran did not attend the examinations. With respect to the Veteran's failure to report for examinations, the United States Court of Appeals for Veterans Claims (Court) has held that the burden is upon VA to demonstrate that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). The record does not contain any of the correspondence sent to the Veteran to confirm the examination appointment. Because the record is unclear where the examination notice was sent, the Board finds that a remand is necessary to afford the Veteran another opportunity to appear for these VA examinations. 4. Entitlement to an initial compensable evaluation for mild restrictive lung disease is remanded. The Veteran also seeks a compensable rating for his service-connected mild restrictive lung disease. Regrettably, a remand is also necessary for further evidentiary development of this claim. Pursuant to the February 2019 Board remand, the Veteran's treatment records relating to this service-connected disability have been added to the claims file. Notably, the pulmonary function tests from August 2016 indicated a Forced Expiratory Volume (FEV-1) of 83 percent, and another pulmonary function test from January 2017 noted a FEV-1 of 81 percent. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) . The Board finds that these pulmonary function test results indicate that a compensable rating may be warranted, as an FEV-1 of less than 80 percent would warrant a 10 percent rating, and the Veteran's test results are arguably borderline with a compensable rating. The Board finds that a VA examination is therefore needed to determine the current severity of the Veteran's service-connected mild restrictive lung disease. 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 cervical strain, lumbar strain and bilateral pes planus. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). With respect to the Veteran's low back disability, the examiner should also state the extent to which any limitation of motion is attributable to the Veteran's post-service lumbar fracture compared to his service-connected lumbar strain. If it is not possible to provide a specific measurement attributable to each, the examiner should state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected mild restrictive lung disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.