Citation Nr: 1760252
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 16-31 097 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky

THE ISSUES

1. Entitlement to service connection for flatfeet/hammertoes.

2. Entitlement to a compensable initial rating for right foot hallux valgus.

3. Entitlement to a rating in excess of 10 percent for left knee degenerative changes and degenerative joint disease.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Mary E. Rude, Counsel

INTRODUCTION

The Veteran served on active duty from January 1978 to January 1981 and December 1985 to March 2001.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.

REMAND

Flatfeet/Hammertoes

The Veteran contends that he has a bilateral foot disorder, other than right foot hallux valgus and hyperkeratosis plantaris palmaris et acuta, which was incurred during his active duty service. The Veteran wrote in June 2012 that he did not have flatfeet, but instead had high arches which were inflamed and burned, as well as swollen toes. The Veteran’s representative has also argued that the Veteran has a left foot disorder that is aggravated by his service-connected right foot hallux valgus.

The Veteran’s service treatment records show treatment for flatfeet, corns, and callosities. In July 2000, he was treated for plantar fasciitis. On his June 2000 Report of Medical History, the Veteran marked “yes” for foot trouble.

At a March 2012 VA examination, the examiner found that the Veteran did have hammertoes, but that there was not a showing of a resulting chronic disability during service or a continuity of symptoms since service. The examiner also found no evidence of a nexus, stating that “If there is evidence of current disability, but no evidence of chronicity on active service nor continuity of symptoms after service, there can be no finding of a nexus as regards direct service connection.” The Board finds that this medical opinion is inadequate, as it appears to completely disregard the possibility that a disability could be found to be related to service, pursuant to 38 C.F.R. § 3.303(a) (2017), even though there is no evidence of chronicity pursuant to 38 C.F.R. § 3.303(b) (2017). The opinion also disregards the Veteran’s lay assertions that he has experienced pain and swelling in his toes since his service.

The Board therefore remands this issue in order to obtain a new VA medical examination regarding the Veteran’s current foot disorders and their etiologies. The examiner is also asked to discuss the Veteran’s different foot diagnoses, as it is unclear from the Veteran’s assertions and the current medical records which of the Veteran’s symptoms are attributable to which disorder.

Additionally, the Veteran’s VA treatment records show regular treatment for painful calluses. At the March 2012 examination, the Veteran was diagnosed with hyperkeratosis plantaris palmaris et acuta, which was found to be related to the calluses and lesions the Veteran experienced in service. The Board notes that while the Veteran has frequently complained of painful calluses in connection with this claim, in a July 2012 rating decision, the Veteran was granted entitlement to service connection for hyperkeratosis plantaris palmaris et acuta. Any symptoms associated with this diagnosis have therefore already been assigned a rating, and are not currently on appeal.

Right Foot and Left Knee Disorders

The Veteran wrote in June 2012 that he had severe pain and instability while walking, and that he had swelling, bruising, burning pain, popping, locking, and spasms in his knee. In July 2016, the Veteran wrote that he had fallen multiple times due to his knee and feet, causing him to need emergency room treatment and require hospitalization.

The Veteran attended a VA examination for his knee in March 2012, and while flare ups were noted, there was no estimation of the functional impairment during flare ups, and also the examiner did not report where evidence of painful motion began. See C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995).

A June 2015 VA foot examination found that the Veteran had right foot hallux valgus. The Veteran reported that he had to wear flip-flips to keep the pressure off of his feet. He reported having pain and flare ups at least once a week. The examiner found that the Veteran had mild or moderate symptoms of right hallux valgus. The examiner did not find that the Veteran had pain, weakness, fatigability, or incoordination that limited functional ability during flare-ups or during repetitive use, and did not find any other functional loss during flare ups or during repetitive use.

The Veteran also attended a VA knee examination in July 2015. The Veteran reported having flare ups and stated that any repetitive motion hurts his knees. Range of motion testing was performed both before and after repetitive motion. The examiner noted that there was no pain on exam prior to repetitive motion, but stated that there was pain and lack of endurance after repetitive motion. The examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare ups, and indicated that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare up. Joint stability testing was not performed.

The Veteran’s representative has argued that the VA examination failed to adequately address the question of flare ups. The Board agrees, especially in light of the fact that the Veteran did report having flare ups at his VA examinations, but it is unclear why the examiner simply indicated that the Veteran had no further functional loss during such flare ups. The Board also finds that these examinations do not adequately address the question of whether the Veteran has further functional limitation due to pain. The Veteran has also asserted that he feels instability in his knees while walking, but joint stability testing was not performed on the Veteran’s knee.

The Board therefore remands these issues so that new and adequate examinations can be held prior to further adjudication.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Provide the Veteran with another opportunity to submit a completed release form (VA Form 21-4142) authorizing VA to request any additional, relevant private treatment records, including any emergency room treatment or hospitalization related to foot disorders, knee disorders, or falls. The Veteran should be advised that he can also submit those records himself. If the Veteran provides a completed release form, then request the identified treatment records. All attempts to secure those records must be documented in the Veteran’s claims file, and he and his representative should be notified of any unsuccessful efforts.

2. Request all relevant VA treatment records from the Robley Rex VA Medical Center in Louisville, Kentucky, and its affiliated facility, the Shiveley Community Based Outpatient Clinic, since August 2016. All records obtained should be associated with the claims file. If the AOJ cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond.

3. Schedule the Veteran for an appropriate VA examination with a qualified examiner to address the nature, severity, and etiology of his foot disorders. The examiner must specify in the report that all VBMS records have been reviewed. Any indicated evaluations or studies should be conducted.

Based on examination findings, medical principles, and historical records, including available service treatment records, the examiner must discuss:

a) Evaluate the current severity of the Veteran’s right foot hallux valgus.

The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, the examiner MUST indicate whether, and to what extent, the Veteran experiences functional loss of the due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible.

The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his foot symptoms and/or after repeated use over time.

Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.

b) What are the Veteran’s other current diagnoses of the bilateral feet, either currently or since the Veteran submitted his September 2011 claim? Please specifically discuss the Veteran’s past diagnoses of hammertoes, flatfeet, and plantar fasciitis.

c) What, specifically, are the symptoms associated with each current foot diagnosis found? Can these symptoms be separated from the symptoms of the Veteran’s already service-connected hyperkeratosis plantaris palmaris et acuta and right foot hallux valgus?

d) For all diagnoses of the bilateral feet that are found, other than hyperkeratosis plantaris palmaris et acuta and right foot hallux valgus, is it at least as likely as not that the disorder had its onset during, or was otherwise related to any event or injury in the Veteran’s service?

Please specifically address the Veteran’s assertions that he first began experiencing foot pain and foot problems while still in service.

e) For all diagnoses of the bilateral feet that are found, other than hyperkeratosis plantaris palmaris et acuta and right foot hallux valgus, was the disorder either (i) caused or (ii) aggravated (worsened beyond the natural progression) by his service-connected right foot hallux valgus?

A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.

4. Schedule the Veteran for an appropriate VA orthopedic examination with a qualified examiner to address the severity of his left knee disability. The examiner must specify in the report that all VBMS records have been reviewed. Any indicated evaluations or studies should be conducted.

Perform all necessary tests to determine the current severity of the Veteran’s left knee disability. In evaluating the Veteran, the examiner should report the complete range of motion findings for both the right and left knee. The examiner should address whether the joints exhibit weakened movement, excess fatigability or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination, both before and after repetitive motion testing.

The examiner is asked to specifically test the range of active motion, passive motion, weight-bearing motion, and nonweight-bearing motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not possible or necessary in this case, he or she should clearly explain why that is so.

The examiner MUST indicate whether, and to what extent, the Veteran experiences functional loss of the left knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion.

The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his knee symptoms and/or after repeated use over time.

Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.

A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.

5. Thereafter, the readjudicate the issues. If any benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

_________________________________________________
Lesley A. Rein
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).4

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