Citation Nr: 23013377 Decision Date: 03/06/23 Archive Date: 03/06/23 DOCKET NO. 18-34 919 DATE: March 6, 2023 ORDER Entitlement to a 50 percent rating from February 9, 2018 for bilateral pes planus is granted. Entitlement to service connection for a right hip strain, to include as secondary to service-connected bilateral foot and knee disorders, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the symptoms of bilateral pes planus more nearly approximated the 50 percent criteria due to significant impairment from extreme tenderness of the bilateral plantar surfaces that is not relieved by orthopedic shoes or appliances. 2. Right hip strain did not have onset in service, is not etiologically related to service, and is not caused or aggravated by service-connected disorders of the bilateral feet or knees. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran is unable to secure or follow a substantially gainful occupation for which he has training and experience due to symptoms and impairment from service-connected bilateral feet and knee disorders. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent for bilateral pes planus have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (DC) 5276. 2. The criteria for service connection for right hip strain due to service or service-connected disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Army from August 1977 to February 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2017 and March 2018 rating decisions of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge and transcript of the proceeding is of record. This matter was remanded by the Board in September 2021, and has been returned for further appellate review. 1. Entitlement to 50 percent rating for bilateral pes planus from February 9, 2018 is granted. The Veteran seeks an evaluation higher than 30 percent for service-connected pes planus. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). The Veteran's bilateral pes planus with degenerative changes of the bilateral first metatarsal phalangeal joints is rated under 38 C.F.R. § 4.71a, DC 5276, for acquired flatfoot. The Board finds DC 5276 to be appropriate rather than DC 5299-5276 because pes planus is specifically listed in the rating schedule and the degenerative changes of the first metatarsophalangeal joint have been considered in the separately assigned rating under DC 5299-5280. Under DC 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. The Veteran attended a VA examination in April 2022. At that time the Veteran reported symptoms of throbbing pain in the feet that was only partially relieved by a lidocaine patch. The Veteran stated his gait was altered as a result. For VA rating purposes, the examiner identified current flat foot symptoms of accentuated pain on use and on manipulation of both feet, swelling, characteristic calluses, extreme tenderness of the plantar surfaces improved by orthopedic shoes or appliances, decreased longitudinal arch height of the feet, and weight-bearing line over or medial to the great toe. The examiner found the Veteran did not have marked deformity, inward bowing of the Achilles' tendon, or marked inward displacement and severe spasm of the Achilles' tendon on manipulation of one or both feet. The examiner found there was pain on physical examination that caused functional loss. The contributing factors of disability for both feet included less movement than normal, weakened movement, swelling, deformity, instability of station, disturbance of locomotion, interference with sitting and standing, pain, fatigue, weakness, lack of endurance, and incoordination. The examiner went on to opine that functional ability during flare-ups and/or after repeated use over time was significantly limited due to the symptom of throbbing pain with repeated use. The Veteran had bilateral foot pain in active and passive motion, in weight-Bearing and in nonweight-bearing, and on rest/non-movement. The Veteran required occasional use of a cane due to his symptoms. His symptoms were not so severe that functioning is so diminished that amputation with prosthesis would equally service the Veteran. In a June 2022 addendum, the VA examiner clarified that the Veteran was still symptomatic despite use of arch supports/built up shoes and orthotics, thus correcting the finding in the April 2022 report to the contrary. VA secured another examination report in December 2022. At that time the Veteran again reported throbbing pain that was unrelieved by medication or orthotics, and occurred even when he was sitting. The Veteran did not report flare-ups, but he did report increased bilateral foot pain when walking or standing for prolonged periods of time. For both feet, the examiner documented accentuated pain on use and manipulation of both feet, indication of swelling on use, characteristic calluses, extreme tenderness of the plantar surfaces unrelieved by orthopedic shoes or appliances, decreased longitudinal arch height of one or both feet on weight-bearing, and weight-bearing line over or medial to the great toe that was also impacted by hallux valgus. There was no objective evidence of marked deformity or marked pronation, no inward bowing of the Achilles' tendon, and no marked inward displacement and severe spasm of the Achilles' tendon. The Veteran did not have Morton's neuroma or metatarsalgia. Pain was noted on examination and caused functional loss of both feet. The contributing factors of disability were less movement than normal, weakened movement, swelling, instability of station, disturbance of locomotion, interference with sitting, interference with standing, fatigue, weakness, and lack of endurance. The examiner documented that pain did significantly limit functional ability with repeated use over time. Specifically, the Veteran had increased bilateral foot pain that limited prolonged standing and walking. The Veteran had bilateral foot pain in active and passive motion, in weight-Bearing and in nonweight-bearing, and on rest/non-movement. The Veteran required occasional use of a cane due to his symptoms. His symptoms were not so severe that functioning is so diminished that amputation with prosthesis would equally service the Veteran. The April 2022 VA examination, June 2022 addendum, and December 2022 VA examination reports document worsening pain, described as throbbing, that significantly limited functional impairment with repeated use. Those reports further document the presence of extreme tenderness of the plantar surfaces that is not improved by orthopedic shoes or appliance. Resolving any reasonable doubt in the Veteran's favor, the pes planus symptoms more nearly approximated the criteria for a 50 percent rating due to the extreme tenderness of the plantar surfaces that significantly limited functional ability with repeated use. The increased rating claim is fully granted. 2. Entitlement to service connection for a right hip disability is denied. The Veteran seeks entitlement to service connection for a right hip disability, which asserts has existed chronically and/or is caused or aggravated by an altered gait from his service-connected left and right knee disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran was diagnosed with right hip strain by a February 2018 VA examiner, so there is a current disability during the appeal period. Although there is a current diagnosis of right hip strain, the more probative evidence of record shows right hip strain was not incurred in service. At a May 2018 VA medical appointment, the Veteran reported having right hip pain during his time in service. That testimony is unsupported by the objective medical records. The service treatment records (STRs) are silent for any hip related conditions or complaints. The February 1979 separation examination did not include any abnormal hip findings, and the Veteran did not report any hip problem on the February 1979 report of medical history at separation. The medical records do not report hip symptoms until 2002. An October 2002 spinal examination report included in the Veteran's SSA records documents the Veteran had a work-related back injury. On examination, the ranges of motion of both hips were limited by pain and there was decreased strength of the bilateral hips. No specific hip diagnosis was advanced, and the Veteran did not report any prior hip injury or symptoms. VA treatment records from as early as 1998 show treatment for other conditions, but do not document any hip complaints. A January 2023 VA examiner who reviewed the relevant evidence assessed that there was no evidence of any hip condition in service, at separation, or until 2002. The examiner cited the May 2018 VA treatment note, but highlighted that there were no hip complaints at separation or within a year of separation. The examiner noted that the clinical findings at separation also matched the Veteran's subjective report of medical history. The examiner stated that it was highly unlikely and medically implausible that hip strain had existed since service without the Veteran seeking some kind of treatment for over 20 years. The January 2023 examiner's conclusion is adequate because it was based on an accurate reporting of the facts, fully addressed the relevant lay and medical evidence, and the examiner provided a rationale to support the conclusion. The absence of any mention of a right hip condition in the treatment records prior to 2002 is probative evidence that no chronic right hip condition existed since service, in contrast to the May 2018 testimony. The absence of evidence cannot be substantive negative evidence without a proper foundation to demonstrate that such silence tends to prove or disprove a relevant fact. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). "The absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded." Id. In this case, the May 2018 statements reporting a long history of symptoms of the claimed disability are contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to his right hip. See AZ v. Shinseki, 731 F.3d 1303, (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing Fed. R. Evid. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). The Veteran reported other conditions at separation, but none related to the right hip. He was treated for other medical conditions prior to the 2002 mention of hip pain, but he did not report any hip symptoms. His failure to report any complaints related to the hip at that time is persuasive evidence that he was not then experiencing any relevant problems and outweighs his May 2018 recollection to the contrary. Overall, the evidence persuasively weighs against a finding that a right hip condition had onset in service, or that a right hip condition has existed chronically since service. The evidence of record also does not support a finding that the diagnosed right hip strain is otherwise related to service or a service-connected disability of the feet or knees. In compliance with the prior remand directives, VA obtained addendum opinions in January 2023 regarding the etiology of the claimed right hip strain. The January 2023 examiner opined that the diagnosed right hip strain was not directly related to the Veteran's period of service. The examiner supported that opinion by explaining how a right hip disability was not shown in service or until 2002, as discussed above. The examiner further opined that the right hip strain was not caused or aggravated by an altered gait due to the service-connected bilateral foot and knee disabilities. The examiner stated that established medical literature, including a specific textbook of orthopedics, did not support a relationship between a condition of the knees or feet and the right hip unless in the case of rare exceptions. Those exceptions included when there is a 5 percent leg length discrepancy and/or chronic exaggerated Trendelenburg gait. The examiner explained that the Veteran did not have a leg length discrepancy per review of the evidence. Further, the bilateral nature of the knee and foot conditions supported an equal distribution of biomechanical forces, which further eliminated gait accommodation as a likely cause or aggravating factor. Similarly, the examiner opined that the right hip strain had not been aggravated beyond its natural course due to any cause. The examiner explained that strain was generally an acute injury and it may become chronic without the benefit of therapy, however, there was no evidence in this Veteran's case that right hip strain had been aggravated. The examiner again reiterated how the evidence did not support a finding of aggravation by a leg length discrepancy or gait accommodation. The January 2023 addendum opinion is adequate and complied with the Board's remand directives. The examiner addressed all relevant evidence, considered the lay testimony, addressed all theories of entitlement, and provided clear rationales to support their conclusion. The opinion is afforded significant probative weight. There is no medical opinion in the file linking the right hip strain to a service-connected disability. Although the Veteran has expressed his belief that his right hip condition is a progression of his bilateral foot and knee conditions, as a lay person he lacks the medical expertise necessary to provide a medical opinion on the etiology of right hip strain. As a result, his lay opinion cannot be afforded probative weight. His lay testimony was considered by a competent medical provider who opined against the claim. In sum, the evidence persuasively weighs against a finding that right hip strain had onset in service, or is otherwise etiologically related to service or a service-connected disability. The criteria for service connection for right hip strain are not met and the claim must be denied. As the evidence of record persuasively weighs the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 3. Entitlement to a TDIU is granted. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). On his June 2020 Application for a TDIU, the Veteran wrote that he was prevented from securing or following any substantially gainful occupation due to disabilities of the feet, knees, back, bowels, hearing loss, and high blood pressure. He reported that he last worked full time on March 29, 2020 as a housekeeper at a VA facility. The record also shows he previously worked as a machine operator for 10 years. See October 2021 private mental health evaluation. In July 2020, the Veteran wrote that he was not able to work because of problems originating in his feet that had affected his knees, hips, and back. He reported he was harder to walk every day. Service connection is not in effect for a back disorder, a bowel disorder, hearing loss, or high blood pressure. As a result of this decision, pes planus is rated at 50 percent from February 9, 2018. Thus, the schedular criteria for a TDIU are met from that date because there is a single disability rated at least 40 percent and the new combined disability rating is at least 70 percent. See 38 C.F.R. § 4.25. The Veteran underwent a VA medical examination in June 2020. That examiner found that due to the Veteran's knee problems, he would have difficulty with activities that required prolonged walking, climbing stairs and ladders, jumping, running, pushing, pulling, and lifting objects. The examiner found the Veteran would be capable of sedentary employment. A June 2020 VA treatment record documents the Veteran was a recently retired VA employee and that he had retired due to worsening knee pain. April 2022 and December 2022 VA examiners documented symptoms of severe throbbing pain that impaired the Veteran's ability to perform prolonged standing and walking. (Continued on the next page) Resolving any reasonable doubt in the Veteran's favor, the record shows that the Veteran is precluded from the type of physically strenuous work for which he has the experience and training. The occupational and functional impairments described by the 2020 and 2022 VA examination reports indicate the Veteran would be unable to perform his regular duties as a machine operator or janitor/custodian due to impairment of the feet and knees, so entitlement TDIU is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.