Citation Nr: 21041571
Decision Date: 07/09/21	Archive Date: 07/09/21

DOCKET NO. 18-50 986
DATE: July 9, 2021

ORDER

The appeal for entitlement to service connection for diabetes mellitus is dismissed.

The appeal for entitlement to service connection for hypertension is dismissed. 

As new and material evidence has been received, the service connection claim for a low back disability is reopened. 

As new and material evidence has been received, the service connection claim for a psychiatric disability is reopened.

As new and material evidence has been received, the service connection claim for obstructive sleep apnea (OSA) is reopened.  

Service connection for an acquired psychiatric disorder, excluding posttraumatic stress disorder (PTSD), has been met. 

Service connection for PTSD is denied. 

Service connection for obstructive sleep apnea (OSA) is granted. 

Service connection for bilateral plantar fasciitis is granted. 

The increased rating claim for the service-connected pes planus with plantar fasciitis relates back to the May 2015 claim.  

Prior to September 13, 2017, a 50 percent rating, but no higher, for the service-connected bilateral pes planus with plantar fasciitis is granted.  

Beginning September 13, 2017, a rating higher than 50 percent for the bilateral pes planus with plantar fasciitis is denied. 

The increased rating claim for the service-connected bilateral hallux valgus relates back to the May 2015 claim.  

Prior to September 13, 2017, a 10 percent rating, but no higher, for the right foot hallux valgus is granted. 

Prior to September 13, 2017, a 10 percent rating, but no higher, for the left foot hallux valgus is granted. 

Beginning September 13, 2017, a rating higher than 10 percent for the right foot hallux valgus is denied.

Beginning September 13, 2017, a rating higher than 10 percent for the left foot hallux valgus is denied.

A rating higher than 10 percent for the service-connected tinnitus is denied.

An effective date earlier than August 11, 2017 for the award of service connection for the tinnitus disability is denied.  

REMANDED

1. Entitlement to service connection for a lumbar spine disability is remanded.

2. Entitlement to service connection for a right shoulder disability is remanded.  

3. Entitlement to service connection for a left shoulder disability is remanded. 

4. Entitlement to a rating higher than 10 percent for the right knee chondromalacia patella is remanded.  

5. Entitlement to a rating higher than 10 percent for the left knee chondromalacia patella is remanded.  

6. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.  

FINDINGS OF FACT

1. On April 2021, prior to the promulgation of a decision in the appeal, the Veteran's attorney submitted a written withdrawal of the service connection claims for diabetes mellitus. 

2. On April 2021, prior to the promulgation of a decision in the appeal, the Veteran's attorney submitted a written withdrawal of the service connection claims for hypertension.

3. An August 2012 rating decision denied service connection for a low back disability was denied.  The Veteran did not submit a timely notice of disagreement to the rating decision, and new and material evidence was not received within one year of the notice of the rating decision.  

4. New evidence received since the most recent August 2012 final rating decision is material and raises a reasonable possibility of substantiating the service connection claim for a low back disability.

5. An October 2014 prior final denial denied service connection for OSA.  The Veteran did not submit a timely notice of disagreement to the rating decision, and new and material evidence was not received within one year of the notice of the rating decision.

6. New evidence received since the most recent October 2014 prior final denial raises a reasonable possibility of substantiating the service connection claim for OSA.  

7. A January 2016 rating decision denied service connection for an acquired psychiatric disability.  The Veteran did not submit a timely notice of disagreement to the rating decision, and new and material evidence was not received within one year of the notice of the rating decision.

8. New evidence received since the final January 2016 final rating decision raises a reasonable possibility of substantiating the service connection claim for an acquired psychiatric disability.  

9. The Veteran has been diagnosed with an acquired psychiatric disability, to include bipolar disorder with depressive symptoms, anxiety, and depression (excluding PTSD) which had onset during or is otherwise related to service.  

10. A preponderance of the evidence shows the Veteran has not been diagnosed PTSD disability during the appellate period.  

11. A preponderance of the evidence shows the Veteran has been diagnosed with OSA during the appellate period, and that it is aggravated by the service-connected knee, foot, and psychiatric disabilities.  

12. On April 2015, prior to the promulgation of a decision in the appeal, the Veteran submitted a written correspondence that included the Veteran's name, claim number, and intent to withdraw his appeal of the denial of a higher rating than 50 percent for the bilateral pes planus. 

13. As to the bilateral pes planus disabilities, new and material evidence was received within one year of the June 2015 rating decision, and it did not become final. 

14. The Veteran has been diagnosed with bilateral plantar fasciitis which is caused or aggravated by the service-connected foot disabilities.  

15. Prior to September 13, 2017, the Veteran's bilateral pes planus more nearly manifested by pronounced extreme plantar surface pain in weight and non-weight bearing, accentuated pain with use of feet, accentuated pain on manipulation, characteristic callouses, severe pain of the tendo achillies, which was not improved by orthopedic shoes or appliances.

16. Beginning September 13, 2017, the currently assigned 50 percent rating for bilateral pes planus is the maximum schedular rating.

17. As to the bilateral hallux valgus disabilities, new and material evidence was received within one year of the June 2015 rating decision, and it did not become final. 

18. Prior to May 19, 2017, the Veteran experienced functional loss with pain on motion of the big toe that was worsened with prolonged standing and walking due to right foot hallux valgus.

19. Prior to May 19, 2017, the Veteran experienced functional loss with pain on motion of the big toe that was worsened with prolonged standing and walking due to left foot hallux valgus.

20. Beginning May 19, 2017, the 10 percent rating for the right foot hallux valgus is the maximum schedular rating. 

21. Beginning May 19, 2017, the 10 percent rating for the left foot hallux valgus is the maximum schedular rating.

22. The currently assigned 10 percent rating for service-connected tinnitus is the maximum schedular rating allowable.  

23. Prior to March 24, 2015, no communications could be construed as a formal or informal service connection claim for tinnitus, and beginning March 24, 2015, no formal claims were received by VA before August 11, 2017.  

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the service connection claim for diabetes mellitus have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for withdrawal of the service connection claim for hypertension have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55. 

3. The August 2012 rating decision that denied the Veteran's service connection claim for a low back disability is final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103.

4. Evidence received after the August 2012 final rating decision is new and material to the claim for service connection for the low back disability, and the claim is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  

5. The October 2014 rating decision that denied the Veteran's service connection claim for OSA is final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103.

6. Evidence received after the October 2014 final rating decision is new and material to the claim for service connection for OSA, and the claim is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  

7. The January 2016 rating decision that denied the Veteran's service connection claim for an acquired psychiatric disability (excluding PTSD) is final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103.

8. Evidence received after the January 2016 final rating decision is new and material to the claim for service connection for an acquired psychiatric disability (excluding PTSD), and the claim is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  

9.  The criteria for service connection for an acquired psychiatric disability, to include bipolar disorder with depressive symptoms, depression, and anxiety (excluding PTSD) have been met.  38 U.S.C. §§ 1113, 5107(b); 38 C.F.R. §§ 3.303, 3.304.   

10.  The criteria for service connection for PTSD have not been met.  38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.303, 3.304(f). 

11.  The criteria for service connection for OSA as secondary to the service-connected knee, foot, and psychiatric disabilities, have been met.  38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310.  

12.  The April 2015 written correspondence met the criteria for the withdrawal of an appeal for an increased rating for bilateral pes planus with hallux valgus.  See 38 C.F.R. § 20.204(b)(2) (redesignated as 38 C.F.R. § 19.55(b), effective February 19, 2019).  

13. As to the increased rating claim for bilateral pes planus, new and material evidence was received within one year of the June 2015 rating decision and therefore, it did not become final.  See 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156, 20.1103.

14. The criteria for service connection for bilateral plantar fasciitis as secondary to the service-connected bilateral foot disabilities have been met.  38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310.  

15. Prior to September 13, 2017, the criteria for a 50 percent rating for bilateral foot pes planus with plantar fasciitis, but no higher, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5276.

16. Beginning September 13, 2017, the criteria for a rating higher than 50 percent for bilateral pes planus with plantar fasciitis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5276. 

17. As to the right foot and left foot hallux valgus, new and material evidence was received within one year of the June 2015 rating decision, and therefore, it did not become final.  See 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156, 20.1103.

18. Prior March 29, 2017, the criteria for a 10 percent rating, but no higher, for the right foot hallux valgus has been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5280.

19. Prior to March 29, 2017, the criteria for a 10 percent rating, but no higher, for the left foot hallux valgus has been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5280.

20. Beginning March 29, 2017, the criteria for a rating higher than 10 percent for the right foot hallux valgus have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5280.

21. Beginning March 29, 2017, the criteria for a rating higher than 10 percent for the left foot hallux valgus has not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5280.

22. The criteria for a rating higher than 10 percent for tinnitus have not been met.  38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260.

23. The criteria for the assignment of an effective date prior to August 11, 2017, for the award of service connection for tinnitus are not met.  38 U.S.C. § 5110; 

38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1975 to September 1979. 

This matter comes on appeal before the Board of Veterans' Appeals (Board) from June 2017, December 2017, and August 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran waived a hearing before the Board in his November 2018, December 2018, June 2019, August 2019, and July 2020 substantive appeals, via VA Form 9s.  He again waived a hearing before the Board in an April 2021 correspondence. 

1. Entitlement to service connection for diabetes mellitus is dismissed; and

2. Entitlement to service connection for hypertension is dismissed. 

The service connection claims for diabetes mellitus and hypertension have both been withdrawn by the Veteran's attorney and will be addressed together below.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.  Withdrawal may be made by a veteran or by his or her authorized representative.  Id.  

In the present case, the Veteran, through his authorized attorney, withdrew the service connection claims for diabetes mellitus and hypertension.  Therefore, there remains no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review these appeals, and they are dismissed.

New and Material Evidence 

Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed period.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302.

If the Board issues a decision on appeal, confirming the RO's decision, then the Board's decision subsumes the RO's decision on the same issue at hand.  38 C.F.R. § 20.1104.  Moreover, if the Board's decision is not timely appealed, then it, too, is final and binding based on the evidence then of record.  38 C.F.R. § 20.1100.

An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented.  Anglin v. West, 203 F.3d 1343, 1347 (2000).  In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

2. As new and material evidence has been received, the service connection claim for the low back disability is reopened. 

The Veteran previously submitted a claim of entitlement to service connection for a low back disability, to include sciatica, which was initially denied in a March 2005 rating decision on the basis that the Veteran did not have a current disability.  The Veteran submitted a notice of disagreement in May 2005 and perfected the appeal to the Board in May 2006 VA Form 9.  Subsequently, the Board denied the service connection claim for a back disability in January 2010 because of a lack of nexus to service.   

The Veteran subsequently submitted a petition to reopen the service connection claim for a back disability in August 2011.  A March 2012 rating decision denied service connection for the back disability secondary to the bilateral foot disability and declined to reopen the claim on a direct basis because there was no new and material evidence of a direct nexus to service.  Within one year following the March 2012 rating decision, new evidence was received; however, this evidence was not material to the element of a direct or secondary nexus, and the Veteran did not submit a timely notice of disagreement to the March 2012 rating decision.  Thus, the March 2012 rating decision became final.  

In May 2012, the Veteran submitted another petition to reopen the service connection claim for the back disability, which was again denied in an August 2012 rating decision.  Within one year of the August 2012 rating decision, new evidence was received; however, it was not material to the element of direct or secondary nexus, and the Veteran did not submit a timely notice of disagreement to the August 2012 rating decision.  Thus, the August 2012 rating decision became final.

In connection with the Veteran's current claim to reopen, after the August 2012 final rating decision, the Veteran asserted that his back disability had onset during service and continued since service.  He now has submitted statements to support his contention that his back disability was caused by or is aggravated by the service-connected knee disabilities, in addition to the service-connected feet disabilities.  See September 2017 VA examination.  As this new evidence is presumed to be credible for the purpose of determining whether a claim may be reopened, the Board finds that new and material evidence has been received and the claim is reopened.  Justus, 3 Vet. App. at 513; 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117-18.  

3. As new and material evidence has been received, the service connection claim for the obstructive sleep apnea (OSA) is reopened. 

The Veteran initially submitted a service connection claim for OSA, which was first denied in a March 2005 rating decision because the Veteran did not have a currently diagnosed disability.  The Veteran submitted a notice of disagreement in May 2005 and perfected the appeal to the Board in a May 2006 VA Form 9.  Subsequently, the Board denied the service connection claim for OSA in June 2008 because the evidence did not show that he had a current OSA diagnosis.   

The Veteran subsequently submitted a petition to reopen the service connection claim for OSA in January 2013.  A July 2014 rating decision denied service connection for OSA due to no evidence of a nexus to service.  No new evidence material to the claim was received within one year of the July 2014 rating decision, and the Veteran did not submit a notice of disagreement.  The July 2014 rating decision became final.  

Although no new evidence was received after the July 2014 rating decision, the RO issued another October 2014 rating decision that declined to reopen the service connection claim for OSA.  New and material evidence was not received within one year of the October 2014 rating decision, and the Veteran did not submit a timely notice of disagreement.  Thus, the October 2014 rating decision became final.  

In February 2016, the Veteran submitted another petition to reopen the service connection claim for OSA, which was again denied in an August 2016 rating decision.  Within one year of the August 2016 rating decision, no new evidence material to the claim was received, and the Veteran did not submit a timely notice of disagreement.  Thus, the August 2016 rating decision became final.

Finally, the Veteran again submitted a petition to reopen the service connection claim for OSA in August 2017, which was denied in a December 2017 rating decision.  The Veteran submitted a timely notice of disagreement in May 2018, and this appeal ensued.  

In connection with the Veteran's current petition to reopen, after the most recent final August 2016 rating decision, the Veteran submitted a private medical opinion from Dr. M.B. which offered an opinion that the OSA was caused or aggravated by his service-connected bilateral feet and knee disabilities and medications prescribed to treat these disabilities.  As this new evidence is presumed to be credible for the purpose of determining whether a claim may be reopened, the Board finds that new and material evidence has been received and the claim is reopened.  Justus, 3 Vet. App. at 513; 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117-18.  

4. As new and material evidence has been received, the service connection claim for an acquired psychiatric disability, to include depression, bipolar disorder, and anxiety (excluding PTSD), is reopened. 

As an initial matter, in June 2018, the Veteran submitted a stressor statement for posttraumatic stress disorder (PTSD), which was denied in an August 2018 rating decision.  The Veteran submitted a September 2018 notice of disagreement as to the August 2018 rating decision, and this appeal ensued.  The service connection claim for PTSD is not addressed as a claim to reopen entitlement to service connection despite the Board's June 2008 decision denying a claim of entitlement to service connection for an acquired psychiatric disorder.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199 (2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  This service connection claim and the supporting stressor statement show that it is a separate claim for service connection from the prior service connection claims for acquired psychiatric disabilities.    

As to the other service connection claims for a psychiatric disability other than PTSD, to include depression, frequent anxiety, and bipolar disorder, these claims are part of the same claim initiated previously and denied by the June 2008 Board decision.  Therefore, for the Board to reconsider these service connection claims, new and material evidence must be submitted to reopen the claim.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199 (2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).   

Turning to whether new and material evidence has been received, the Veteran previously submitted a claim of entitlement to service connection for frequent anxiety, which was initially denied in a March 2005 rating decision on the basis that the Veteran did not have a currently diagnosed disability.  The Veteran submitted a notice of disagreement in May 2005 and perfected his appeal to the Board through a May 2006 VA Form 9.  Subsequently, in June 2008, the Board expanded the service connection claim for frequent anxiety to a service connection claim for an acquired psychiatric disability.  The Board then denied the service connection claim for an acquired psychiatric disability, to include bipolar disorder, because the evidence did not show a nexus to service.  

The Veteran subsequently submitted a service connection claim for depression in October 2015.  A January 2016 rating decision denied service connection for depression for no currently diagnosed disability and no nexus.  No new evidence material to the claim was received within one year of the July 2014 rating decision, and the Veteran did not submit a notice of disagreement to this rating decision.  The January 2016 rating decision became final.  

In August 2017, the Veteran submitted petition to reopen the service connection claim for a "mental health disorder."  The RO denied a service connection claim for bipolar disorder in a December 2017 rating decision.  The Veteran submitted a notice of disagreement in May 2018, and this appeal ensued.  

In connection with the Veteran's current petition to reopen, after the most recent final August 2016 rating decision, the Veteran submitted private February 2020 and April 2020 medical opinions from and Dr. H.H.G. and Dr. M.B., which offered opinions that the bipolar disorder, to include depression and anxiety, was caused or aggravated by his service-connected disabilities.  As this new evidence is presumed to be credible for the purpose of determining whether a claim may be reopened, the Board finds that new and material evidence has been received, and the claim is reopened.  Justus, 3 Vet. App. at 513; 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117-18.  

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service.  38 C.F.R. § 3.303(d). 

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  

38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Arthritis is considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  This rule does not mean that any manifestation in service will permit service connection.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).

Other non-psychosis psychiatric disabilities and obstructive sleep apnea are not considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply.  

A layperson is competent to report on the onset and continuity of her current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).

When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 

5. Service connection for an acquired psychiatric disorder, to include bipolar disorder with depressive symptoms, anxiety, and depression (excluding PTSD), is granted.  

As an initial matter, the Veteran has been diagnosed with an acquired psychiatric disability during the appellate period, to include bipolar disorder with depressive symptoms, anxiety, and depression.  See, e.g. September 2017 VA examination, February 2020, and April 2020 private examinations.

A September 1975 entrance examination shows the Veteran was psychiatrically sound on entry into service, and the corresponding report of medical history did not indicate the Veteran had a history of psychiatric symptoms or disabilities.  An October 1976 service treatment records indicated the Veteran had chest pain during service.  He was diagnosed with gastritis.  In March 1979, the Veteran sought treatment for headaches, which he had for the previous three months and that were worsening.  The Veteran also reported that, before coming into service, he had a "nervous" problem which was treated with medications.  The July 1979 separation examination was psychiatrically clinically normal, and the July 1979 report of medical history was silent as to psychiatric symptoms.

A February 2006 VA treatment record reports the Veteran was diagnosed with psychosexual dysfunction with inhibited sexual excitement, bipolar disorder I, and depressive disorder.

An August 2007 VA treatment record showed the Veteran had a positive PTSD screening. 

The Veteran had a psychiatric initial assessment at VA in September 2007 after the August 2007 positive PTSD screening.  The Veteran had not been in a combat zone, but he occasionally had nightmares and flashbacks of bootcamp, although no traumatic incidents were reported.  He had recently been prescribed Prozac for depression after four of his siblings had died in 18 months.  This was the first psychiatric medication the Veteran had tried.  The Veteran had increased irritability, mood swings, sleep disturbances, and was easily frustrated.  He was unable to tolerate chaos, confusion, or small children.  He had periods of hyperactivity, and he did not sleep.  He also had periods where he felt down.  He had suicidal ideations a year earlier without attempts or plan. He was working part time as a pastor, and he and his wife were living on her disability payments and his workman's compensation payments.   Prior to his back injury at work, he was a building contractor.   The Veteran reported that he had felt anxious since being in the military, but he had not sought treatment for it prior to this time.   The Veteran had Axis I bipolar I disorder, not otherwise specified, under the Diagnostics and Statistics Manual (DSM) IV. 

Additional VA treatment records and medical records from the Social Security Administration show the Veteran was treated for psychiatric symptoms and disabilities, variously diagnosed, but no nexus opinions were provided.  

The Veteran was afforded a VA examination in September 2017.  The examiner, a psychologist, diagnosed the Veteran with major bipolar disorder with major depressive episodes.  The Veteran reported symptoms of difficulty sleeping, chronic knee and back pain, poor appetite, fatigue, persistent depressive feelings, persistent rumination, restlessness, anxiety, unexplained anger, nightmares, night sweats, auditory and visual hallucinations, and irritability.  The Veteran's spouse reported the Veteran had a negative mood beginning within three to four months of their move to Mississippi in 2006.  The Veteran's spouse indicated the Veteran had auditory and visual hallucinations, but he had also denied having them.  He hit her in the back of the head twice two months before this examination.  He had verbal and physical outbursts of anger.  The Veteran had persistent anger and was suicidal.  He did not want to talk to other people.  On mental status examination, the examiner indicated the Veteran's bipolar disorder manifested with symptoms of depression, anxiety, chronic sleep impairment, mild memory loss, disturbance of mood and motivation, difficulty in establishing effective work and social relationships, difficulty adapting to stressful situations including work and a work-like setting, and spatial disorientation.  The Veteran was found to be a reliable historian.  The examiner did not offer an etiology opinion for the bipolar disorder.  

The Veteran submitted a June 2018 statement, in which he saw another Marine step on a mortar.  It effected his mental state and mind, and he didn't sleep well.  He frequently woke up around 4 a.m. with ringing in his ears, and he dreamed about the incident all the time.  

The Veteran submitted a November 2020 statement from his sister in support of his claim.  She reported that before the Veteran entered service, he was a normal child, even tempered, without anger issues, well behaved, and a good student.  After returning home from service, the Veteran isolated himself.  He did not come around the family much, was quieter than he used to be, and was "snappier" than he was before.  Presently, the Veteran did not come around the family often, even during the holidays, even though he lived nearby.  He was short on the phone, providing short answers when asked questions.  He did not often walk or stand and was in a lot of pain.      

The Veteran submitted a February 2020 private medical opinion from Dr. H.H.G., a psychologist.  She diagnosed the Veteran with bipolar disorder, most recent episode unspecified. After reviewing the claims file, VA treatment records, and performing a mental status examination on the Veteran, Dr. H.H.G. determined it was at least as likely as not that the currently diagnosed bipolar disorder had onset during service, which continued from service discharge to the present.  Additionally, Dr. H.H.G. also concluded that the Veteran's service-connected bilateral knee, foot, and tinnitus disabilities aggravate the acquired psychiatric disabilities.  Dr. H.H.G. also submitted multiple medical journal articles in support of the etiology opinions.  

The Veteran submitted a second private etiology opinion from Dr. M.B., a physician.  Dr. M.B. reviewed the claims file and examined the Veteran before rendering her decision.  Dr. M.B. concluded that the currently diagnosed bipolar disorder had onset during service and continued since discharge from service.  In support of her opinion, Dr. M.B.  noted the Veteran sought treatment for chest pain in service that was not cardiac in nature, and Dr. M.B. believed that this in-service symptom was a manifestation of the bipolar disorder in service.  Dr. M.B. also submitted numerous medical journal articles in support of her opinion.  

An October 2020 statement from the Veteran's spouse, C.G., indicated that when she first met the Veteran in 2000, he was quiet and reserved.  She did not see him again for a year.  When she met him again, he was more talkative but still in his shell.  She hired the Veteran to pain her house, and she realized he had a mental disorder when she came home to find that he had thrown paint on her dog for barking.  She also indicated he was drinking at work.  Despite this behavior, C.G. and the Veteran began dating.  On their honeymoon, he was hostile, and they barely had any interaction, which was the opposite of his mood at their wedding.  He became angry and pushed her down.   He periodically had outbursts of violence, but she excused it.  The Veteran only kept in touch with his friends who were Veterans.  He required that both the television and radio be on at the same time.  He must keep his mind busy to drown out his thoughts.   

After a review of the evidence, both lay and medical, the Board finds that a preponderance of the evidence is in favor of the service connection claim for an acquired psychiatric disability, to include bipolar disorder with major depression, anxiety, and depression (excluding PTSD which is discussed separately below).  The February 2020 and April 2020 positive nexus opinions were well-reasoned and based on an examination of the Veteran, review of the claims file, review of medical journal articles, and consideration of the lay evidence of record.  The Board notes that, although the Veteran has been afforded a VA psychiatric examination, no etiology opinion was provided.  Although the Board could remand to obtain one, the February 2020 and October 2020 private medical opinions are highly probative of the issues, and a remand is unnecessary to adjudicate the claim.  

Resolving all reasonable doubt in favor of the Veteran, a preponderance of the evidence is in favor of the claim, and service connection for an acquired psychiatric disorder (excluding PTSD) is granted.

6. Service connection for PTSD is denied. 

The Veteran asserts he has PTSD from his experiences in boot camp, including seeing a fellow Marine step on a mortar and racial discrimination.  See June 2018 VA 21-0781.    

To prevail on a service connection claim, the Veteran must show that he has been diagnosed with PTSD during, or shortly before, the appellate period.  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Specifically, for psychiatric disorders, a current diagnosis under DSM-V is required for compensation for psychiatric disabilities.  Without a specific diagnosis of PTSD under the DSM-V criteria, the Veteran cannot meet the requirements of service connection.  Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020).    

The Board concludes that the Veteran does not have a current diagnosis of PTSD and has not had one at any time during, or shortly before, the claim period.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

While the Veteran believes he has PTSD, he is not competent to provide a psychiatric diagnosis in this case.  Psychiatric disorders are medically complex and diagnosing them requires specialized medical education.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  

Of note, the Veteran submitted two private medical opinions relating other psychiatric diagnoses to service and to other service-connected disabilities, and neither of the private clinicians diagnosed him with PTSD.  Consequently, the Board gives more probative weight to the competent medical evidence than the lay evidence of record.

Finally, the Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

7. Service connection for obstructive sleep apnea (OSA) is granted. 

The Veteran contends that the OSA is caused or aggravated by his other service-connected disabilities and the medications prescribed to treat those disabilities.  See October 2020 brief.  

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  

38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995).

As an initial matter, the Veteran has now been awarded service connection for an acquired psychiatric disability herein (excluding PTSD), and he is also service connected for bilateral knee and foot disabilities.  The Veteran has also been diagnosed with OSA in a May 2010 sleep study.  See June 2010 private treatment record.  Therefore, the issue in this case is whether the service-connected acquired psychiatric, knee, and foot disabilities caused or aggravated the OSA.  

In April 2020, the Veteran submitted an April 2020 disability benefit questionnaire (DBQ) and etiology opinion from Dr. M.B., a physician.  The Veteran reported that his knee and feet pain woke him several times a night, causing him to remove his CPAP mask.  He did not always remember to put it back on.  Not using his CPAP as directed led to increased daytime fatigue, decreased focus, and frequent naps.  Dr. M.B. also indicated the medical research showed that there was a link between chronic pain and disrupted sleep.  Specifically, there was a "bidirectional relationship" between pain and sleep disturbances.  Dr. M.B. reported that pain increased fragmented sleep, impaired sleep quality, and disrupted normal sleep architecture.  After reviewing the claims file, the medical literature, and interviewing the Veteran, Dr. M.B. concluded that it was at least as likely as not that the pain from the service connected knees and feet, medications to treat those disabilities, his mental health symptoms, and the psychiatric medications prescribed to treat his mental health disabilities, caused or permanently aggravated the OSA.   Dr. M.B. submitted numerous medical journal articles to support the etiology opinion. 

After a review of the evidence, both lay and medical, the Board finds a preponderance of the evidence is in favor of the claim.  Dr. M.B.'s well-reasoned opinion was based on a review of the claims file, a review of medical research, and an interview of the Veteran.  The Board notes that the Veteran was not afforded a VA examination for the OSA and a VA etiology opinion was not obtained.  Nevertheless, one is not necessary to adjudicate the claim.  The April 2020 medical opinion is highly probative, and the Board affords it great weight.  

Resolving any reasonable doubt in favor of the Veteran, service connection for OSA secondary to the service-connected knee, feet, and psychiatric disabilities is granted.  

Increased Rating

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 

"Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 

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 required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to 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).  

Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself 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.").

Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability.  38 C.F.R. § 4.14.  However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "marked," "moderately severe," "severe," and "pronounced."  See Sellers v. Wilkie, 30 Vet. App. 157 (DC 5280 does not define 'severe,' or generally associate that term with specific symptoms").  Rather than applying a mechanical formula, the Board must instead evaluate all the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through the senses.  See Layno, 6 Vet. App. 465, 469.  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F.3d 1372, 1377.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

As a foundational matter, ratings based on function impairment of the upper extremities are predicated upon which extremity is the major extremity, with only one extremity being considered major.  38 C.F.R. § 4.69.  The medical evidence in this case reflects that the Veteran is right-hand dominant.  Therefore, his right upper extremity is his major extremity.

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

8. Increased rating claim for the bilateral feet, including the bilateral pes planus and bilateral hallux valgus

a)	Factual Background

In April 2014, the Veteran reported a history of painful raised areas beneath his toes on the right foot.   April 2014 VA x-ray studies of the right foot showed medium sized bunions with degenerative changes and hallux valgus deformities, unchanged since the previous examination.  He also had second and third hammer toes.  Additional April 2014 VA treatment records showed the Veteran had an abnormal foot shape and foot deformity.  He had thick, deformed imbedded nails that affected footwear use and caused pain.  

May 2014 VA treatment records noted he used toe separators and toe sleeves. He rated his pain as an 8 out of 10 on a 10-point pain scale in the left foot.  He was referred to an orthopedist for a footwear evaluation.

June 2014 VA treatment records noted therapeutic shoes for acquired deformities of the toes with foot pain were ordered, which he received in August 2014.  He indicated that they helped with the foot pain a great deal. 

The Veteran was afforded a VA examination in June 2015.  The examiner, a physician's assistant, diagnosed the Veteran with bilateral pes planus (flat foot) and bilateral hallux valgus.  The Veteran did not use braces but used Apex shoes with inserts.  The Veteran had persistent bilateral foot pain of the plantar surfaces and balls of the feet.  He had worsening pain over the medial aspect of the great toes with tenderness to palpation, and the right 2nd and 3rd hammer toes were also causing pain.  He had hallux rigidus of both great toes.  The right hallux valgus was measured to 30 degrees, and the left hallux valgus was measured to 20 degrees.  The Veteran denied flareups in his feet.  He described his functional loss as his symptoms interfered with ambulation.  On physical examination, the examiner found the Veteran had pain that was accentuated on use, accentuated pain on manipulation, characteristic callouses, decreased longitudinal arch height, and objective evidence of marked deformity of the feet, bilaterally.  He did not have swelling, extreme tenderness of the plantar surface, marked pronation, or lower extremity deformity, other than pes planus, that caused alteration of the weight-bearing line in either foot.  He had inward bowing of the Achilles tendon in both feet, but he did not have severe spasm of the achilles tendon on manipulation.  The weight bearing line did not fall over, and it was not medial to, the great toe in either foot.  He used built-up shoes and orthotics bilaterally with relief.  The Veteran had right foot second and third hammer toe.  The hallux valgus and hallux rigidus symptoms were mild to moderate bilaterally, and the Veteran had not had surgery on either foot.  The Veteran did not have pes cavus (clawfoot), malunion or nonunion of tarsal or metatarsal bones, or additional foot injuries.  On physical examination, there was pain bilaterally that contributed to the Veteran's disability with pain on movement, pain on weight-bearing, pain on non weight-bearing, disturbance of locomotion and interference with standing.  Pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability during flare-ups or with repeated use over time in either foot.  No additional functional loss with repeated use over time was found.  The Veteran's functional impairment was not so severe that he would be equally well served by amputation and prosthetic.  Right foot degenerative or traumatic arthritis was shown on x-ray studies.  The Veteran's foot pain with decreased range of motion of the toes affected his ability to walk, stand, and climb or descend stairs or ladders.  The examiner noted there was no additional limitation of motion after repetitive motion testing, weakened movement, excess fatigability, and/or incoordination; however, the examiner noted that during his usual day to day activities the Veteran could have additional loss of motion, increased pain, and decreased functional capacity during flare-ups and with repeated use over time, which could not be estimated as the examiner did not have access to the Veteran outside the clinical setting.  

The Veteran had pain in his feet and knees in March 2016 VA treatment records. He was taking Vicodin and Tramadol for pain.  On physical examination, hammer toes were noted on the right foot.  No lesions were noted.  He had decreased pedal pulses.  No assessment was made for the feet. 

October 2015 VA treatment records diagnosed the Veteran with a corn lesion.  He had bunions on both feet and a history of wearing orthotic shoes.  

In September 2016 VA treatment records, the Veteran had feet and knee pain since service.  It was difficult for him to walk far because of his flat feet.  He experienced feet aches and cramps when he walked.  The Veteran had throbbing pain in both feet rated as 8 out of 10 on a 10-point pain scale that was worse with activity.  Opioids relieved the pain. Walking, stress, and lifting increased the pain.

November 2016 VA treatment records showed the Veteran had right foot and low back pain rated 8 out of 10 on a 10-point pain scale.  He had increased pain with cold, lifting, stress, and walking.   He had cramps and pain in his feet at night and in the morning.  He had pain in the arch of foot bilaterally.  He was prescribed diclofenac in June 2016, but he ran out and did not refill the prescription.  He was provided orthotic shoes a year ago, but they were worn out.

In a November 2016 VA examination, the examiner, a physician's assistant, diagnosed the Veteran with flat foot (pes planus), hallux valgus, and plantar fasciitis.  The Veteran ambulated with an antalgic, somewhat flat foot type gait.  He did not wear a brace.  He was not wearing special shoes or inserts at the examination, but they had been ordered since his last pair had worn out.  He was able to do yard work and drive his truck, but he was not working.  The Veteran had persistent bilateral foot pain on the plantar surfaces and balls of his feet, right worse than left.  He had short lived flare-ups of the pain in the plantar aspect.  He had worsening pain over the medial aspect of the great toes. He was tender to palpation of the right great toe laterally, and redness was visible over the medial aspect of the right great toe, 2nd digit, and 3rd digit.  He had hallux rigidus of both great toes.  The hammer toes of the right 2nd and 3rd toe also caused pain.  On examination, he had a pressure type sore on the right 2nd and 3rd toes caused by right foot hallux valgus, which was measured to 30 degrees.  There was a very small pressure sore beginning on the 2nd digit of the left foot, and the left foot hallux valgus was also measured to 20 degrees.  Walking was painful and the Veteran did not run anymore.  He continued to drive without a problem.  He had early signs of diabetic neuropathy of both feet with symptoms of tingling and burning on the plantar area.  There was no pain on the dorsum area of the feet.  He also had a history of spinal stenosis on MRI studies.  The Veteran indicated that flare-ups of foot pain impacted his ability to ambulate properly for short periods of time.  He did not report functional impairment of the feet regardless of repetitive use. The Veteran had accentuated pain on use of the feet, accentuated pain on manipulation, characteristic callouses, decreased longitudinal arch height, and marked deformity, bilaterally.  The Veteran did not have swelling, extreme tenderness of the plantar surfaces, or marked pronation.  The weight bearing line did not fall over, or medial to, the great toe in either foot.  The bilateral hallux valgus and hammertoes caused alterations of the weight-bearing line.  The Veteran had inward bowing of the Achilles tendon in both feet, but he did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation.  He had hammer toes of the 2nd and 3rd toe on the right foot and the 2nd toe on the left foot.  The examiner found that the Veteran had mild to moderate symptoms bilaterally due to the hallux valgus disabilities.  The examiner did not note hallux rigidus.  No acquired pes planus, malunion or nonunion of tarsal and metatarsal bones, or additional foot injuries were noted.  The Veteran had not had foot surgery.  The Veteran exhibited objective pain on examination, and pain on movement, pain on weightbearing, disturbance of locomotion, interference with standing, and pain with some footwear were additional contributing factors.  Pain, weakness, fatigability, or incoordination did not significantly impair functional ability during flare-ups or with repeated use over time.  No other functional loss during flare-ups or with repeated use over time was found.  The functional impairment was not so severe that an amputation and prosthetic would equally serve the Veteran.  No imaging studies were conducted.  It was noted that foot pain impacted his ability to ambulate and prolonged standing.  The examiner concluded it was at least as likely as not that the Veteran's plantar fasciitis was related to the service-connected foot disabilities.  The examiner indicated that there was no additional limitation of motion after repetitive use testing, no weakened movement, excess fatigability, or incoordination; however, the examiner noted that during his usual day to day activities and the Veteran could have additional loss of motion, increased pain, and decreased functional capacity during flare-ups and with repeated use over time, which could not be estimated as the examiner did not have access to the Veteran outside the clinical setting.  

December 2016 VA treatment records the Veteran had corn lesions and bunions on both feet.  He was diagnosed with flat feet.  He had a history of orthotic shoe use.  His gait, range of motion, and skin were normal. The Veteran wanted new orthopedic shoes, which were ordered.

January 2017 private treatment records reported the Veteran had a history of foot pain, with onset three months earlier.  He had pes planus, hallus valgus over the right foot and bunions on left foot.  His pain was described as burning.  Palpation of the right and left lower extremities showed tenderness.  Left foot exhibited flat plantar aspect with a bunion.  The right foot showed a flat plantar aspect with valgus deformity, and the 2nd toe overlapped the big toe.

The Veteran contacted his congressional representative in January 2017 because he disagreed with the proposed reduction in the ratings for the service-connected feet disabilities.  The nature and severity of his symptoms were unchanged.

The Veteran reported he had been wearing custom inserts in February 2017 private treatment records.  He had burning along his left big toe without radiation.  He had cramping in his feet at rest and with walking.  The assessment was hallux valgus, pain, cramps, and claudication.  X-ray studies were performed, and the impression was bilateral hallux valgus deformity of the 1st MTP joints. 

The Veteran was afforded another VA foot examination in June 2017.  The examiner, a physician, diagnosed the Veteran with bilateral flat foot (pes planus), hammer toes, hallux valgus, hallux rigidus, plantar fasciitis, and degenerative arthritis.   The Veteran had severe cramps in his feet.  He had to use dividers, described as soft padding wraps encircling his great and 2nd toe, to prevent callous formation.  He had a burning sensation in the right great toe, and both great toes were painful at the metatarsophalangeal areas on the sole, medial, and dorsal aspects.  He had less pain in the other toes, but the pain started in the toes and traveled back through the center of the foot and into the heels.  He denied worsening pain on first standing and walking.  He became off balance when he put pressure on the right great toe.  The right great toe limited walking, exercise, and ability to climb.  He had orthopedic shoes and used arch supports, which helped.  The Veteran had flare-ups of the feet that limited the distance he could walk.  He had accentuated pain on use, characteristic callouses, and decreased longitudinal arch height, bilaterally.  He did not have accentuated pain on manipulation, swelling, extreme tenderness of plantar surfaces, marked deformity, or marked pronation.  The Veteran used arch supports with relief.  The weight-bearing line fell over or medial to the great toe bilaterally.  Other than the pes planus, no other lower extremity deformity caused alteration of the weight-bearing line.  The Veteran did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation.  The Veteran had hammer toes of the third and fourth toes on the right toe and second toe on the left foot.  The examiner noted the hammer toes were unrelated to military service and were not caused by the flat feet.  The Veteran had mild to moderate hallux valgus symptoms, and he had not had surgery for the hallux valgus.  The Veteran did not have Morton's neuroma metatarsalgia.  He did not have hallux rigidus, but the examiner commented that the hallux limitus was the same as hallux rigidus.  The Veteran was diagnosed with hallux limitus in January 2011 and hallux rigidus was diagnosed in June 2017, but neither condition was caused by or due to the service-connected pes planus.  The Veteran did not have acquired pes planus, malunion or nonunion of tarsal or metatarsal bones, foot injuries, or surgical procedures.  The examiner indicated the Veteran exhibited pain on examination.  The examiner then noted that there was no objective pain on examination, only subjective pain, which was limited to the first metatarsal joint and bunion.  Pain on weight-bearing after approximately 100 yards and disturbance of locomotion contributed to the bilateral foot disability.  Pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability during flare-ups or with repeated use over time.  No other functional loss during flare-ups or with repeated use over time was noted.  Dorsalis pedis and posterior tibial pulses were palpable bilaterally, were 2+, and were symmetrical.  He had good capillary filling time, bilaterally.  No lower extremity edema, varicosities, or open wounds were found.  Pedal sensation was intact bilaterally.  No Babinski response was found.  He had a limping gait, used a cane in the left hand, with an apparent shorter weight bearing phase on the right leg.  The Veteran was unclear whether the cause was right hip, right knee, or right foot.  He was able to perform a reasonable heel walk, toe walk, and toe-heel walk without pain or much difficulty.  The Veteran regularly used a cane for his normal mode of locomotion, primarily for the right knee.  The functional impairment of the feet was not of the severity of that the Veteran would be equally served by amputation and use of a prosthetic.  Imaging studies showed degenerative arthritis in both feet.  The first metatarsophalangeal joint arthritic changes were related to the hallux valgus and to aging.  On this examination, there was no findings of plantar fasciitis currently.  The examiner indicated it was diagnosed more than 20 years after service and was unrelated to either the flat feet or the hallux valgus.  The first metatarsophalangeal joint arthritic changes are age related and related to the hallux valgus.  The arthritis of the other toe joints was unrelated to the hallux valgus or flat feet.  The examiner indicated that the Veteran could have additional limitations in range of motion, endurance, joint function, and pain, but to comment on these symptoms would require mere speculation and statements made by the Veteran were entirely subjective.  

The Veteran was afforded another foot examination in September 2017.  The examiner, a physician, diagnosed the Veteran with flat feet (pes planus) and hallux valgus.  The Veteran's feet felt "real sore." He had pain around the big toe joint, and he had flare-ups in the left big toe.  He used orthopedic shoes, inserts, and antiinflammatory medications.  The orthotics indicated helped some but not completely.  The Veteran reported pain around the 1st metatarsal phalangeal joint bilaterally.  The Veteran did not have flare-ups of the feet.  The Veteran described the functional loss as pain with prolonged walking.  The Veteran had accentuated pain with use, accentuated pain on manipulation, decreased longitudinal arch height, marked deformity, and marked pronation, bilaterally.  There was no swelling, characteristic callouses or extreme tenderness of the plantar surfaces.  The Veteran did not have inward or marked inward bowing of the Achilles tendon or severe spasm of the Achilles tendon.  The weight-bearing line did not fall over or medial to the great toes.  The hallux valgus symptoms were mild or moderate bilaterally, but he had not had surgery for hallux valgus.  The hallux rigidus was mild or moderate on the right foot, and the examiner noted the right great toe had lost all motion and the left toe motion was greatly reduced but not rigidus.  The Veteran did not have Morton's neuroma, hammer toes, acquired pes cavus, malunion or nonunion of tarsal or metatarsal bones, foot injuries, or other conditions.  Pain was noted on examination.  Less movement than normal, pain on movement, pain on weight-bearing, deformity, disturbance on locomotion, and interference with standing contributed to the Veteran's disability.  The Veteran had increasing pain when he walked.  During flare-ups and with repeated use over time, the Veteran had worsening pain when walking, which limited his walking further bilaterally.  The Veteran regularly wore accommodative sleeves over the great toes and wore specialty shoes for the extra width.  He also regularly used orthotics.  The functional impairment of the feet was not so severe as to be equally served by amputation and prosthesis.  Imaging studies had been conducted which showed degenerative or traumatic arthritis in the feet bilaterally.  The examiner indicated that there was no additional limitation of motion after repetitive use testing, no weakened movement, excess fatigability, or incoordination; however, the examiner noted that during his usual day to day activities and the Veteran could have additional loss of motion, increased pain, and decreased functional capacity during flare-ups and with repeated use over time, which could not be estimated as the examiner did not have access to the Veteran outside the clinical setting.  

At a September 2017 DRO hearing, the Veteran asserted that his bilateral foot disabilities had worsened.  He had one toe that was on top of the other toe, and it had been that way since the military.  The only way to correct these toes were to break them and reset them.  He had flat feet.  The Veteran's spouse reported that he hobbled around the house.  He was unable to get up until sensation came back into his lefts.  His spouse testified that his feet bothered him extensively.  He spent an hour per day replacing pads, dressing, and tape on his feet so that he could bear to wear shoes.  He constantly had raw spots, rashes, and fungus on his feet.  He had callouses from one toe rubbing against the other.  It affected his ability to drive.  Every week, he cut a callous of his little toe.  He also used home-made splints between his toes.  Surgery had been recommended.  He had cramps in his feet at night. He required the use of a cane to walk.  The Veteran also testified that one examiner indicated his feet had improved because he was not wearing his orthotic shoes; however, the Veteran did not wear them to that examination because they had worn out and a new pair had been ordered. He had received two new pair of orthotic shoes in January, and one pair was already worn out.  

The Veteran sent in multiple pictures of his left foot with bandages separating his toes in September 2017.

The Veteran sister, T.S., submitted a statement in November 2019.  T.S. reported that the Veteran complied about his legs and feet.  He did not walk or stand often, and he seemed to be in a lot of pain.  He was no longer active like he used to be.  

In October 2020, the Veteran submitted a statement from C.G., his wife.  C.G. met the Veteran in 2000, and he had struggled with his knees and feet since that time.  They hurt all the time.   He became angry and irritable when he had to walk a lot of if his feet hurt severely.  He was only able to walk approximately one block before he had to sit down, or he might be able to walk two blocks, but then he would limp.  He was in tremendous pain and used a cane for support.  He was unable to put constant weight on his feet so standing was difficult and painful.  He fidgeted and shifted after standing for more than 5 minutes.  His feet swelled when he sat down, and he often sat with them elevated.  His feet often went numb.   He was unable to carry anything of weight without a dolly because of the foot pain.  C.G. indicated he was unable to lift dog food onto a cart at the store and used a tractor and dolly at home to lift and carry things.   He used a zero-turn lawnmower to mow the lawn, but he still required breaks for his feet.  He no longer took baths because it was difficult to get up and down himself. 

 

b)	Earlier Effective Date and Rating Period on Appeal

As an initial matter, the Board notes the Veteran's attorney disagreed with the September 13, 2015 effective date assigned for the 50 percent rating for the bilateral pes planus and hallux valgus.  Additionally, the Veteran's attorney implicitly asserts that a higher rating should be assigned for the foot disabilities as early as 2011.  See April 2021 brief.  The Veteran recites evidence beginning in September 2011, although he offers no specific argument or supporting analysis as to why the increased rating claim should begin in 2011.  

As a relevant procedural history, the Veteran was granted service connection for the bilateral pes planus with hallux valgus in an April 2009 rating decision, effective October 20, 2004.  Subsequently, the Veteran filed an increased rating claim for the bilateral pes planus with hallux valgus in August 2011.  The RO issued a December 2011 rating decision granting a higher rating of 10 percent for the bilateral pes planus with hallux valgus, effective August 9, 2011.  The Veteran submitted a timely December 2011 notice of disagreement.  Subsequently, the RO issued an April 2013 statement of the case, and the Veteran perfected his appeal to the Board in an April 2013 VA Form 9.  Two additional supplemental SOCs were issued in October and November 2014.  In April 2015, the Veteran submitted a statement in which he requested to "withdraw all issues on appeal and just file for an increase..." for the bilateral foot disabilities.  

Written withdrawals of claims on appeal are governed by 38 C.F.R. § 20.204(b) (redesignated as 38 C.F.R. § 19.55(b), effective February 19, 2019).  Written withdrawals are valid when they include the name of the veteran, the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn.  38 C.F.R. § 20.204(b)(2) (redesignated as 38 C.F.R. § 19.55(b), effective February 19, 2019).  The withdrawal is effective on receipt by VA.  38 C.F.R. § 20.204(b)(3) (redesignated as 38 C.F.R. § 19.55(b), effective February 19, 2019).  For written withdrawals, there is no requirement that the Veteran have a full understanding of the consequences of the decision to withdraw.  Hembree v. Wilkie, 33 Vet. App. 1 (2020).  Here, the April 2015 correspondence includes the Veteran's name, his claims file number, and a statement indicating his intent to withdraw "all issues on appeal."  Thus, the April 2015 withdrawal of the increased rating claim for the bilateral pes planus with hallux valgus was valid.   

Subsequently, the Veteran submitted a formal claim for an increased rating for the bilateral pes planus and hallux valgus on the appropriate VA promulgated claims form in May 2015.  The RO issued a June 2015 rating decision, which increased the rating for the bilateral pes planus to 30 percent.  Less than a year later, the Veteran submitted a September 2015 VA Form 21-526EZ for an increased rating for bilateral pes planus.  The RO issued another rating decision in January 2016, continuing the 30 percent rating for the bilateral pes planus.  The Veteran again submitted a February 2016 VA Form 526-EZ and an October 2016 VA Form 526 EZ for an increased rating for the bilateral pes planus and hallux valgus, which was less than one year from the prior rating decision.  The RO issued a January 2017 rating decision granting separate noncompensable ratings for the right and left hallux valgus and proposing a reduction in rating for the bilateral pes planus from 30 percent to noncompensable.  The Veteran submitted another May 2017 VA Form 526-EZ requesting an increased rating for the bilateral hallux valgus and bilateral pes planus.  The RO issued a December 2017 rating decision, granting a rating of 50 percent for the bilateral pes planus, effective September 13, 2017.  Subsequently, the RO issued a February 2018 rating decision that found CUE in the December 2017 rating decision that assigned a noncompensable rating for the right foot hallux valgus and the left foot hallux valgus, and assigned a 10 percent rating for each foot effective August 2017.  The Veteran submitted a May 2018 notice of disagreement, and this appeal ensued.  

To determine the appeal period applicable for the increased rating claim the bilateral pes planus, 38 C.F.R. § 3.156(b) must be considered.  38 C.F.R. § 3.156(b) notes that if new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  See also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005)

After reviewing the evidence, both lay and medical, the Board finds that new and material evidence was received in the one-year period following the June 2015 rating decision.  Therefore, the June 2015 rating decision did not become final, and the rating period for the foot disabilities, to include bilateral pes planus, right foot hallux valgus, and left foot hallux valgus, relates back to the May 2015 formal claim, to include, if warranted the year prior to the May 2015 formal claim if the increase can be ascertained within that year.  

c)	Service connection for bilateral plantar fasciitis is granted. 

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  

38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Here, the Veteran is service-connected for bilateral pes planus and hallux valgus.  He has also been diagnosed during the appellate period with bilateral plantar fasciitis.  As noted above, the November 2016 VA medical opinion concluded the bilateral plantar fasciitis was at least as likely as not related to the service-connected bilateral foot disabilities.  The November 2016 VA medical opinion is probative as it was based on a physical examination of the Veteran.  Thus, resolving any reasonable doubt in favor of the Veteran, service connection for the bilateral plantar fasciitis on a secondary basis is granted.  

d)	Rating criteria for bilateral pes planus and plantar fasciitis

The rating criteria pertaining to musculoskeletal disabilities were revised effective February 7, 2021.  The rating criteria for diagnostic codes 5276 (flat foot, acquired), 5277 (weak foot), 5278 (claw foot), 5279 (metatarsalgia), 5280 (hallux valgus), 5281 (hallux rigidus),  5282 (hammer toe), 5283 (malunion of tarsal or metatarsal bones), and 5284 (foot injuries) were not substantively changed.  

Under the amended rating code, DC 5269 (plantar fasciitis) was added effective February 7, 2021.  The rating criteria provides that a 30 percent rating is warranted when there is no relief from both non-surgical and surgical treatment, bilaterally.  Note 1 indicates that a 40 percent rating is warranted if there is actual loss of the use of the foot.  Note 2 instructs that if a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable.  Prior to February 7, 2021, under the old rating criteria, bilateral plantar fasciitis was rated by analogy to flat foot under Diagnostic Code 5276, as the symptoms of the two disabilities are similar in nature.  

The Veteran's bilateral pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot.  Under Diagnostic Code 5276, a 10 percent rating is warranted for moderate bilateral or unilateral pes planus with weight-bearing line over or medial to great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet; a 30 percent rating is warranted for severe bilateral pes planus as shown by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities; and a maximum 50 percent rating is warranted for pronounced bilateral acquired flatfoot with symptoms such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a, Diagnostic Code 5276.  

e)	Prior to September 13, 2017, a 50 percent rating, but no higher, for the bilateral pes planus with bilateral plantar fasciitis is granted.

Prior to May 11, 2015, the Veteran was assigned a 10 percent rating under DC 5276 for the bilateral flat feet with hallux valgus.  Beginning May 11, 2015 to September 12, 2017, the Veteran was assigned a 30 percent rating for the bilateral pes planus.  The Veteran contends higher ratings are warranted during this period on appeal.  The Board notes that during the appellate period, as discussed further below, the RO granted separate ratings for the right and left foot hallux valgus, effective July 29, 2015.  

After resolving all reasonable doubt in the Veteran's favor, the Board finds that a 50 percent rating, but no higher, is warranted prior to September 13, 2017.  

When a Veteran has plantar fasciitis and pes planus, these disabilities are rated together because their symptoms are so similar in nature, to award separate disability ratings for each would violate the rule against pyramiding.  See 38 C.F.R. § 4.14.  

The Board finds that the most probative evidence shows the Veteran's bilateral pes planus with plantar fasciitis symptoms more nearly approximated a pronounced disability.  He had an antalgic gait, ambulated with a cane, used Apex shoes with inserts without relief, had persistent bilateral foot pain of the plantar surfaces and balls of the feet, accentuated pain on use of the feet, accentuated pain on manipulation of the feet, characteristic callouses, decreased longitudinal height on weight bearing in both feet, marked deformity of both feet such as pronation, and bilateral inward bowing of the achilles tendon.  The Veteran also had pain on movement, pain on weight-bearing, pain on non weight-bearing, disturbance of locomotion, and interference on standing during the entire period on appeal.  See April 2014, May 2014, June 2014, August 2014, October 2015, November 2015, March 2016, September 2016, November 2016, December 2016, January 2017, and February 2017 VA treatment records; June 2015, November 2016, June 2017, and September 2017 VA examinations; and January 2017 statement. 

The most probative evidence of record is the September 2017 VA examination, which found that the Veteran had bilateral pes planus symptoms of marked pronation, objective evidence of marked deformity, characteristic callouses, accentuated pain on manipulation of the feet, and accentuated pain with use of the feet that was not improved by orthotic shoes.  Furthermore, the Veteran has consistently and credibly reported extreme pain in the plantar surface and cramping of both of his feet throughout the appellate period.  The Veteran is competent to report painful feet on use and manipulation in the plantar surface, and the Board has no reason to doubt his credibility.  Additionally, the Veteran's January 2017 statement also indicated that his bilateral pes planus has been approximately the same severity throughout the appellate period.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995).    After a review of the evidence, both lay and medical, the Board finds that the bilateral pes planus more nearly manifests symptoms that warrant a 50 percent rating for the entire appellate period.  

As the Veteran is in now in receipt of the highest schedular rating for acquired flat feet with plantar fasciitis prior to September 13, 2017, there is no basis to award a rating higher than 50 percent.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Finally, the Board notes that neither the Veteran nor his attorney raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

f)	Beginning September 13, 2017, a rating higher than 50 percent for the bilateral pes planus with bilateral plantar fasciitis is denied.

The Veteran contends that beginning September 13, 2017, he is entitled to a rating higher than 50 percent for the bilateral pes planus. 

As noted above, the rating criteria pertaining to musculoskeletal disabilities were revised effective February 7, 2021; however, the rating criteria pertaining to pes planus, Diagnostic Code 5276, were not substantively changed.  The criteria under DC 5276 are noted above.  

As the Veteran is in receipt of the highest schedular rating for acquired flat foot with plantar fasciitis, there is no basis to award a higher rating.

The Board has also considered the other Diagnostic Codes pertaining to the foot.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017).  In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them.  Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)).  The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms.  Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016)).  Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule.  Id.  

Here, the Veteran's disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code.  In this regard, Diagnostic Code 5277 to 5284 are not applicable.  When a condition is specifically listed in the rating schedule, it may not be rated by analogy.  Copeland, 27 Vet. App. at 333.  As such, there is no legal basis upon which to award a higher schedular rating for bilateral pes planus.  See Sabonis, 6 Vet. App. at 430.

As discussed above, a separate rating for the plantar fasciitis is not warranted as that would violate the rule against pyramiding by compensating the Veteran for the same symptoms twice.  See, 38 C.F.R. § 4.14. 

The Board also considered whether a rating higher than 50 percent was warranted under the amended rating criteria for plantar fasciitis, Diagnostic Code 5269, which was added to the DC effective February 7, 2021.  Nevertheless, the highest schedular rating under DC 5269 is 40 percent for loss of use of the foot.  There is no evidence that the Veteran's bilateral pes planus with plantar fasciitis more nearly manifests as loss of use of either foot; thus, a higher rating under DC 5269 is not warranted.  

As the Veteran has been assigned the maximum schedular disability rating for bilateral pes planus with plantar fasciitis, the appeal is denied.

Finally, the Board notes that neither the Veteran nor his attorney raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

g)	Appellate period applicable to the claim for a compensable rating for right foot hallux valgus and left foot hallux valgus

As discussed in detail above, the Veteran was granted service connection for the bilateral pes planus with hallux valgus in an April 2009 rating decision, effective October 20, 2004.  Subsequently, the Veteran filed an increased rating claim for the bilateral pes planus with hallux valgus in August 2011.  The RO issued a December 2011 rating decision granting a higher rating of 10 percent for the bilateral pes planus with hallux valgus, effective August 9, 2011.  The Veteran submitted a timely December 2011 notice of disagreement, and the Veteran perfected his appeal to the Board in an April 2013 VA Form 9.  In April 2015, the Veteran submitted a statement in which he requested to "withdraw all issues on appeal and just file for an increase..." for the bilateral foot disabilities.  Here, as discussed above, the April 2015 withdrawal of the increased rating claim for the bilateral pes planus with hallux valgus was valid.   

The bilateral pes planus with hallux valgus disabilities were initially rated together until the January 2016 rating decision assigned separate ratings for the right foot hallux valgus (noncompensable rating effective July 29, 2015), the left foot hallux valgus (noncompensable rating effective July 29, 2015), and the bilateral pes planus (continued the 30 percent rating that had previously been assigned to the combined bilateral pes planus with hallux valgus).  As discussed above in subsection (a), because the foot disabilities, to include the bilateral pes planus, right foot hallux valgus, and left foot hallux vagus, were originally rated as one disability and the Veteran appealed  the assigned rating, the rating period is the same for the right and left foot hallux valgus as the bilateral pes planus.  Therefore, because the June 2015 rating decision did not become final, the rating period on appeal relates back to the May 2015 claim (to include the one year prior to the formal claim if the increase in disability can be ascertained during that period), but no earlier.  

h)	Prior to May 29, 2017, a 10 percent rating, but no higher, for the right foot hallux valgus (bunions) and a 10 percent rating, but no higher, for the left foot hallux valgus (bunions) is granted.  

Prior to May 29, 2017, the Veteran's right and left foot hallux valgus are each rated as noncompensable under 38 C.F.R. § 4.71a, DC 5280.  

After a review of the evidence, both lay and medical, the Board finds that prior to May 29, 2017, the Veteran's right and left foot hallux valgus warrants a 10 percent disability rating for each foot.  Southall-Norman, 28 Vet. App. at 346; see also 38 C.F.R. § 4.59.  The competent and credible medical and lay evidence of record shows that the Veteran experienced functional loss with pain on motion, pain on weight-bearing in the big toe, and worsened pain with prolonged standing and walking due to the right and left foot hallux valgus disabilities.

The Board has considered whether separate or increased evaluations are warranted under any other diagnostic codes pertaining to foot disabilities.  However, there exist no medical or lay evidence of record showing weak foot, pes cavus, metatarsalgia, malunion/nonunion of the tarsal/metatarsal bones, or scars. Thus, Diagnostic Codes 5277, 5278, 5279, 5283, and 7804 are not warranted.  38 C.F.R. §§ 4.71a, 4.118.  

In addition, a separate rating under Diagnostic Codes 5003 or 5010, which pertains to degenerative and traumatic arthritis, would violate the rule against pyramiding, as the Veteran's pain on use of the feet is already compensated under DC 5276, and in any event, a rating greater than 10 percent is not available under DC 5003.     See 38 C.F.R. § 4.14.

The Board notes the Veteran has been diagnosed with hammer toes of both feet; however, these disabilities have not been awarded service connection.  Therefore, DC 5282 is not for application.  The Board also notes that the Veteran has been diagnosed with plantar fasciitis which has been related to the service-connected disabilities; however, this condition is discussed above relative to the rating criteria of the bilateral pes planus.

Moreover, as the Veteran's diagnosed bilateral hallux valgus disability is explicitly listed in the rating schedule, Diagnostic Code 5284 (applicable to other foot injuries) is also not for application.  Dorland's Illustrated Medical Dictionary, 32nd Edition, defines a bunion is defined as "abnormal prominence of the inner aspect of the of the first metatarsal head, accompanied by bursal formation and resulting in a lateral or valgus displacement of the of the great toe."  Similarly, hallux valgus is defined as "angulation of the great toe away from the midline of the body toward the other toes; the great toe may ride under or over the other toes."  As a hallux valgus is a bunion, a separate rating under Diagnostic Code 5284 is not warranted.  When a condition is specifically listed in the rating schedule, it may not be rated by analogy.  Copeland v. McDonald, 22 Vet. App. at 333.  

As the Veteran's service-connected bilateral hallux valgus has herein been awarded the maximum schedular rating available for hallux valgus, a higher rating is not applicable.  38 C.F.R. § 4.71a, Diagnostic Code 5280. 

Accordingly, prior to May 19, 2017, the preponderance of the evidence is in favor of an initial 10 percent rating for the right foot hallux valgus and a 10 percent rating for the left foot hallux valgus.  38 C.F.R. § 4.59.

Finally, the Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

i)	Beginning May 19, 2017, a rating higher than 10 percent for the right foot hallux valgus and a rating higher than 10 percent for the left foot hallux valgus is denied.   

The Veteran contends that he is entitled to a rating higher than 10 percent for the right foot hallux valgus and a rating higher than 10 percent left foot hallux valgus.

For the entire period on appeal, the Veteran's right foot hallux valgus and left foot hallux valgus have been assigned a 10 percent rating for each foot under 38 C.F.R. § 4.71a, Diagnostic Code 5280, for unilateral hallux valgus.  Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus severe if equivalent to amputation of great toe.  A maximum 10 percent rating is also warranted for unilateral hallux valgus operated with resection of metatarsal head.  38 C.F.R. § 4.71a, Diagnostic Code 5280.  

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

The Board has also considered the other Diagnostic Codes pertaining to the foot.  Here, the Veteran's right foot hallux valgus and left foot hallux valgus is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code.  See Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)).  In addition, the Veteran has a service-connected bilateral pes planus with plantar fasciitis with distinct symptom manifestations.  In this regard, a separate 50 percent rating code for pronounced bilateral pes planus under Diagnostic Codes 5276 has been discussed above. 

Thus, based on the foregoing, the Board finds that the Veteran has been assigned the maximum schedular ratings for his right foot hallux valgus and left foot hallux valgus under DC 5280, and that a rating greater than 10 percent is not warranted for either foot under any other diagnostic code for any period during the pendency of the claim. 

Even if it were possible to rate by analogy, the Veteran's right foot and left foot disabilities would remain at 10 percent as a 10 percent rating is the highest rating that can be assigned for the Veteran's foot disabilities pursuant to the DCs applicable to the evaluation of foot disabilities as described below, in addition to the two diagnostic codes for rating disabilities involving arthritis.  See 38 C.F.R. § 4.71a, DCs 5276-5279, 5281, 5283, 5284, 5003 and 5010.  

The Board notes the Veteran has been diagnosed with hammer toes of both feet; however, these disabilities have not been awarded service connection.  Therefore, DC 5282 is not for application.  The Board also notes that the Veteran has been diagnosed with plantar fasciitis which has been related to the service-connected disabilities; however, this condition is discussed above relative to the rating criteria of the bilateral pes planus.

In addition, a separate rating under Diagnostic Codes 5003 or 5010, which pertains to degenerative and traumatic arthritis, would violate the rule against pyramiding, as the Veteran's pain on use of the feet is already compensated under DC 5276, and in any event, a rating greater than 10 percent is not available under DC 5003.     See 38 C.F.R. § 4.14.

Given the foregoing, the Board finds that schedular ratings higher than 10 percent for the right and left foot disabilities pursuant to DC 5280 for hallux valgus are not warranted.  

As a maximum 10 percent rating is assigned for the right foot and the left foot hallux valgus, a higher rating is not available under DC 5280.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Finally, the Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

9. A rating higher than 10 percent for the service-connected tinnitus is denied.  

The Veteran contends that he is entitled to a rating higher than 10 percent for the tinnitus.  Neither he nor his attorney has asserted a basis for this belief.  

Throughout the entire initial rating period on appeal, the Veteran has been in receipt of a 10 percent disability rating for bilateral tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260.  Under Diagnostic Code 6260, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 

As the maximum schedular rating for tinnitus under Diagnostic Code 6260 has already been assigned, a higher schedular rating is not available, and the Veteran's claim for a disability higher than 10 percent for bilateral tinnitus must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

10. Entitlement to an effective date earlier than August 11, 2017 for the grant of service connection for tinnitus is denied. 

The Veteran contends that an effective date earlier than August 11, 2017 should be assigned for the grant of service connection for the tinnitus disability.  Neither the Veteran nor his attorney have asserted a reason that the Veteran should be granted.  

The effective date for an award of disability compensation based on an original grant of service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

Before March 24, 2015, the terms "claim" and "application" meant a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p).  Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r).  A sympathetic reading as to all potential claims raised by the evidence is required.  Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004).  A claim is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. § 3.155(a).

Prior to March 24, 2015, there was no set form that an informal written claim must take.  The only requirement was that the communication indicated an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought.  Rodriguez v. West, 189 F.3d 1351 (1999).

Under 38 C.F.R. § 3.157(b)(1), a report of examination or hospitalization may constitute an informal claim. However, "[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit."  Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006).  Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing."  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326 27 (Fed. Cir. 2006); but see Sellers v. Wilkie, 30 Vet. App. 157 (2018).  

Beginning March 24, 2015, a specific form prescribed by the Secretary of VA must be submitted for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a).

In this case, the current effective date for the award of service connection for the tinnitus is August 11, 2017, the date VA received the Veteran's formal claim for disability compensation for tinnitus.  See VA Form 21-526EZ.  The Veteran contends that the effective date for the grant of service connection for tinnitus should be earlier than August 11, 2017 but does not indicate what effective date he believes is warranted.  

After reviewing the evidence, both lay and medical, an effective date prior to August 11, 2017 for the grant of service connection for a tinnitus disability is not warranted.

At the outset, the Veteran did not file a formal or informal claim for compensation within one year following his separation from service.

Moreover, there is no evidence prior to the August 11, 2017 VA Form 21-526 that could be construed as a formal claim after March 24, 2015 or construed as a formal or informal claim prior to March 24, 2015 to warrant the assignment of an effective date earlier than August 11, 2017.  38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015); Brokowski, 23 Vet. App. at 84; see also MacPhee, 459 F.3d at 1326-27; Rodriguez, 189 F.3d at 1354.

As a preponderance of the evidence is against entitlement to an effective date earlier than August 11, 2017 for grant of service connection for the tinnitus disability, the benefit-of-the-doubt rule is not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Finally, the Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

REASONS FOR REMAND

1. Entitlement to service connection for a low back disability, to include as secondary to the bilateral knee or bilateral foot disabilities, is remanded.

The service connection claim for a back disability has now been reopened.  However, a remand of the claim in necessary to obtain adequate VA etiology opinions. 

The October 2008 and March 2012 VA examiners determined that there were no reports or medical evidence of back pain prior to a November 2002 motor vehicle accident (MVA); therefore, both examiners found the back disabilities were more likely related to the MVA and less likely than not caused by service.  They also both reiterated that without complaints of back pain until the 2002 MVA, there was no continuity of symptomatology.  Nevertheless, on review of the file, a July 1995 VA treatment records show the Veteran had back pain and stiffness in his low back, particularly in the morning.  The assessment was back stiffness.  In November 2001, the Veteran sought treatment at VA for "serious back problems."  He reported being treated at Kaiser over the previous 18 months.  His symptoms were exacerbated at night when he was sleeping, resulting in stiffness.  The impression was low back pain.  Thus, the October 2008 and March 2012 opinions are based on a faulty factual premise, and a remand is warranted to obtain an adequate medical opinion as to the etiology of the back disability on a direct basis.  

Additionally, the Veteran also previously asserted that the back disability was caused by or was aggravated by the service-connected feet disabilities and now contends they are also caused or aggravated by the service-connected bilateral knee disabilities.  The RO obtained a March 2012 VA medical opinion as to secondary service connection.  The examiner determined that the back was not caused by either the service-connected feet or knee disabilities; however, no aggravation opinion was provided.  

The Veteran was again afforded a VA back examination in September 2017.  No etiology opinion was provided.  

Therefore, a remand is warranted to obtain an adequate VA medical opinion as to whether the back disability was caused by is aggravated by the service-connected feet and/or knee disabilities.  

2. Entitlement to service connection for a right shoulder disability is remanded; and

3. Entitlement to service connection for a left shoulder disability is remanded.

The Veteran contends that his right and left shoulder disabilities were caused by "stress and strain" in service.  See April 2021 statement.  

The Veteran has been diagnosed with right and left shoulder disabilities during the appellate period.  The Board cannot make a fully-informed decision as to whether service connection for right and left shoulder disabilities is warranted because no VA examiner has provided an opinion as to whether either shoulder disability had onset during or was otherwise related to service, to include wear and tear during service.  Thus, on remand, the Veteran should be afforded a VA examination.  

4. Entitlement to a rating higher than 10 percent for the right knee disability is remanded; and 

5. Entitlement to a rating higher than 10 percent for the right knee disability is remanded.  

The Veteran was afforded VA knee examinations in June 2016, November 2016, June 2017, and September 2017.  These examinations are inadequate in their current forms.  

The June 2016 and November 2016 examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and all of the VA examinations of record fail to comply with Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  The June 2016 and November 2016 VA examinations do not contain passive range of motion measurements in degrees or discuss whether there was pain on non weight-bearing.  In all of the VA examinations, the examiners indicated the Veteran was not being examined after repeated use over time or during a flare-up and indicated that the examiantion findings were neither consistent nor inconsistent with the Veteran's description of his functional loss in these situations.  The VA examiners also concluded that it would require mere speculation to determine whether pain, weakness, fatigability, or incoordiation significantly limited the Veteran's functional ability after repeated use over time or during a flare-up.  While the examiners stated that an opinion could not be provided without resort to speculation, none of the examiners indicated that the speculation was due to lack of knowledge within the medical community.  See Sharp, 29 Vet. App. at 34-36.  

A remand is warranted to afford the Veteran an additional VA examiantion to evaluate the nature and severity of the right and left knee disabilities.  

6. Entitlement to a total disability rating due to individual unemployability is remanded.  

The Veteran is seeking entitlement to a TDIU based on his service-connected disabilities, which now includes an acquired psychiatric disability and OSA.  As such, the TDIU claim is inextricably intertwined with the Board's grant of service connection for the psychiatric and OSA disabilities herein, and the pending assignment of its corresponding rating percentage by the AOJ may affect the award of a TDIU, as well as the potential effective date if granted.  Therefore, consideration of the TDIU must be deferred.

Additionally, VA treatment records indicate the Veteran was working part-time as a pastor for his church during the appellate period.  See November 2014 VA treatment record and February 2020 private medical opinion.  This "employment" was not listed on the Veteran's February 2019 VA Form 21-8940, and it is unclear if his service as a pastor is a paid or unpaid position.  On remand, clarification of the status of his position should be obtained, to include any compensation paid to him for his work in this capacity. 

The matters are REMANDED for the following action:

1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file.

2. Obtain an addendum medical opinion from an appropriate clinician as to the nature and etiology of the lumbar spine disability.  Whether a physical examination of the Veteran is necessary is left to the examiner's discretion.  The Veteran's contentions should be considered. 

After a thorough review of the claims file, the examiner should address the following: 

a) Identify each currently diagnosed low back disabilities, to include arthritis, sciatica, spondylosis, or however diagnosed.

b) Provide an opinion as to whether each back disability had onset during or is otherwise related to service.  

*Consider and discuss the VA treatment records showing complaints of back pain prior to the November 2002 MVA and the in-service treatment of back pain.  See July 1995 and November 2001 VA medical records.  

c) Provide an opinion as to whether each currently diagnosed low back disability was (1) caused by or (2) is aggravated by the service-connected bilateral foot disabilities.  

d) Provide an opinion as to whether each currently diagnosed low back disability was (1) caused by or (2) is aggravated by the service-connected bilateral knee disabilities.  

3. Schedule the Veteran for a VA examination for the right and left knee disabilities with an appropriate clinician.  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.  

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement 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).  

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 based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements.  If it is not possible to provide a specific measurement 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).

4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the right and left shoulder disabilities.  The Veteran's statements should be considered. 

After a thorough review of the claims file, the examiner should address the following: 

a) Identify each currently diagnosed disabilities of the right and left shoulders. 

b) Provide an opinion as to whether each currently diagnosed right and left shoulder disabilities had onset during or is otherwise related to service, to include general "stress and strain" during service.  See April 2021 statement.  

5. Request clarification from the Veteran as to whether his position as a pastor for his church is paid or unpaid, and if it is paid, how much income he earns from this "employment."  See November 2014 VA treatment records and February 2020 private medical opinion.  

(Continued on the next page)

 

6. Readjudicate the remaining claims on appeal.

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Harper, 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.