Citation Nr: 18154129
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 15-09 845
DATE:	November 29, 2018

ORDER
New and material evidence having been presented, the claim of entitlement to service connection for a lumbar spine disability is reopened. 
An initial rating in excess of 10 percent disabling for left foot metatarsalgia is denied.
An increased rating of 20 percent, but no higher, for left foot plantar fasciitis is granted.

REMANDED
The issue of entitlement to service connection for a lumbar spine disability is remanded for additional development.

FINDINGS OF FACT
1. The claim of entitlement to service connection for a lumbar spine disability was originally denied in an April 1998 rating decision.  The decision was not appealed and no new and material evidence was submitted within one year of the decision; the decision became final.
2. Evidence received since the unappealed April 1998 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disability.  
3. The Veteran is currently in receipt of the maximum rating allowed for his service-connected left foot metatarsalgia.
4. Signs and symptoms associated with the Veteran’s left foot plantar fasciitis amount to a moderately severe foot injury.  The Veteran is able to stand and walk for limited periods of time, albeit with difficulty.

CONCLUSIONS OF LAW
1. The April 1998 rating decision that denied the claim of entitlement to service connection for a lumbar spine disability is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 
2. New and material evidence has been submitted, and the claim of entitlement to service connection for a lumbar spine disability is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).
3. An initial rating higher than 10 percent for metatarsalgia of the left foot is precluded by law.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5279.
4. The criteria for an increased initial 20 percent rating, but no higher, for left foot plantar fasciitis are met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1971 to September 1973.
The matters addressed herein are before the Board of Veterans’ Appeals (Board) from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.
New and Material Evidence
To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim.  38 U.S.C. § 5108. “New evidence” means existing evidence not previously submitted to VA.  38 C.F.R. § 3.156(a).  “New evidence” means existing evidence not previously submitted to VA.  38 C.F.R. § 3.156(a).  “Material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim. Id.  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”  Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  
In this case, the RO initially denied the Veteran’s claim for service connection for a back disability in an April 1998 rating decision.  The claim was denied both because there was no current diagnosis, and no evidence of a relationship between an alleged back disability and service.  The Veteran did not submit a notice of disagreement and no new and material evidence was received by VA within one year of the issuance of the rating decision.  As such, the rating decision became final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).
Since the April 1998 rating decision, new and material evidence has been received in the form of VA treatment records and a December 2013 VA examination diagnosing anterolisthesis L5/S1 and degenerative disk disease of the lumbar spine.  As this evidence confirms the presence of a current low back disability, it relates to an unestablished fact that is necessary to substantiate the Veteran’s claim.  Thus, new and material evidence has been received, and the claim for service connection for a low back disability is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 
Increased Rating
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § Part 4.  Separate diagnostic codes identify the various disabilities.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support.  38 C.F.R. § 4.10.
Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous...”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period 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 based on facts found.  Id.
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.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3.
In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan. The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a “competent” source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”).
The Veteran asserts that he is entitled to an initial rating greater than 10 percent for both his service connected left foot metatarsalgia and left foot plantar fasciitis because the conditions cause significant pain and difficulty with ambulation. 
Entitlement to an initial rating in excess of 10 percent for left foot metatarsalgia
The Veteran’s metatarsalgia of the left foot is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5279.  This diagnostic code provides for a maximum 10 percent rating for metatarsalgia, anterior (Morton’s disease), unilateral, or bilateral.  Metatarsalgia is “pain and tenderness in the metatarsal region.”  Dorland’s Illustrated Medical Dictionary 1145 (32d ed. 2012).
The Board acknowledges that the Veteran believes the currently assigned 10 percent rating does not adequately compensate him for the functional impairment he experiences as a result of his metatarsalgia. However, when a condition is specifically listed in the schedule, rating by analogy is not appropriate. In other words, an analogous rating may be assigned only where the service-connected condition is unlisted. Instead, a listed condition should be rated under the DC that specifically pertains to it. See Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015); See also Suttman v. Brown, 5 Vet. App. 127, 134 (1993).  Because metatarsalgia is a specifically listed condition under the schedule there is no other DC that may be appropriately considered in order to increase the rating for metatarsalgia. The Board finds that a higher rating cannot be awarded as a 10 percent rating is the highest schedular evaluation allowed under DC 5279 and there are no other applicable diagnostic codes.  
Entitlement to an initial rating in excess of 10 percent for left foot plantar fasciitis 
The December 2013 rating decision on appeal granted the Veteran service connection and assigned a 10 percent rating for left foot plantar fasciitis under 38 C.F.R. § 4.71a, DC 5276, effective from May 2013.  Although the RO assigned the 10 percent disability rating for plantar fasciitis analogously to flat feet, the Board finds that DC 5284 is also applicable, as the Veteran’s plantar fasciitis in this case stems from a foot injury.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board therefore will evaluate whether either DC 5276 or DC 5284 may serve as a basis for the award of a rating higher than 10 percent.  Before proceeding with this analysis, the Board notes that the Veteran is separately service-connected for the residuals of a fracture of the left third metatarsal head with arthritis and hallux valgus, for which he is in receipt of a 20 percent rating.  The adequacy of that rating is not currently before the Board.  Thus, the Board will exclude from its consideration the signs and symptoms attributable to the residuals of the fracture (and metatarsalgia) in determining whether a rating higher than 10 percent is warranted for plantar fasciitis.
Under DC 5276 for unilateral acquired flatfoot, a 10 percent rating is warranted for moderate bilateral plantar fasciitis where the weight-bearing lines are over or medial to the great toes and there is inward bowing of the tendon Achillis and pain on manipulation and use of the feet.  A 20 percent rating is awarded for unilateral flatfoot, which is severe with manifestations of objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities.  A 30 percent rating is warranted for unilateral acquired flatfoot with pronounced symptoms, with manifestations of marked pronation, extreme tenderness of plantar surfaces of the foot, marked inward displacement and severe spasm of the tendon Achillis on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a, DC 5276. 
Under Diagnostic Code 5284, a higher 20 percent rating is warranted for a moderately severe disability of the foot, and a 30 percent rating for a severe disability of the foot. 38 C.F.R. § 4.71a, DC 5284.
Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.
On VA foot examination in December 2013, the Veteran principally complained of heel pain, as relates to plantar fasciitis.  He indicated that the pain increased if he walked for more than 30 minutes.  Physical examination revealed tenderness of the plantar aspect of the left heel.  Based on the examination, the VA examiner opined that the Veteran would have a moderate impairment in performing physical labor.
The Board finds that when applying DC 5276 the preponderance of the evidence is against a rating in excess of 10 percent at any time since the grant of service connection for left foot plantar fasciitis.  The evidence of record does not demonstrate findings analogous to severe impairment, with manifestations of objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, swelling on use, and characteristic callosities, as would warrant a 20 percent rating.  
However, the evidence does support a higher 20 percent rating under DC 5284.   Although the rating schedule does not define what is moderate or moderately severe, given the Veteran’s pain and difficulty with ambulation the Board finds the evidence most closely approximates a condition that is moderately severe in nature.  A rating higher than 20 percent is not warranted.  Although his heel pain makes it difficult for him to walk, the Veteran remains able to stand and walk for limited periods, such that his plantar fasciitis disability may not be found to be severe.
Resolving doubt in favor of the Veteran, the Board finds that the criteria for an initial compensable rating of 20 percent for the Veteran’s left foot plantar fasciitis are met.
Reasons for Remand
The issue of entitlement to service connection for a lumbar spine disability is remanded for additional development.
The Veteran asserts that his lumbar spine disability was caused by his active duty service, as it is related to a fall he sustained in service.
Service treatment records (STRs) show that in September 1971 the Veteran was treated for injuries sustained in a fall.  The STRs do not, however, show that the Veteran reported injuring his back in that fall.  The Veteran nevertheless asserts that he felt pain in his back following that fall, but did not seek treatment for the back because the foot and hand injuries he sustained were more severe. The Veteran has further stated that he has had continuing low back pain since the fall in service. 
The Veteran did receive treatment for back pain while in the service, in July 1973, but no medical note correlated the treatment in 1973 with the fall in 1971. The Veteran has stated that he had continuing back pain since the service, and he went to a chiropractor in 1997 to try and get relief of his neck and back pain. 
In December 2013 the Veteran underwent VA lumbar spine examination, as a result of which the examiner opined that it was less likely than not that the Veteran’s lumbar spine disability was incurred in or caused by the claimed in-service injury, event or illness.  The examiner reasoned that there was no documented in-service injury of the spine during the 1971 fall, the only documented in-service treatment for the back occurred two years after the fall, and made no mention of prior injury, and there was no evidence supportive of a recurrent disability following the 1973 treatment, as the Veteran’s lumbar spine was found to be normal on examination prior to separation from service.  
While the Board regrets the additional delay, due to deficiencies in the December 2013 nexus opinion, the Veteran’s claim of entitlement to service connection for a lumbar spine disability must be remanded. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 
The December 2013 VA opinion is inadequate as it does not sufficiently address the Veteran’s reports of continuity of low back pain since service.  The VA examiner also did not acknowledge that the Veteran sought treatment from a chiropractor for his back in 1997.  Nor did the examiner discuss the possibility of the Veteran’s low back pain being caused by a fall, or multiple falls, due to his service connected left foot conditions. 
The Veteran asserts that he fractured his pelvis in his fall during service, and that his back pain is related to the leg length discrepancy that resulted from the pelvic fracture.  VA clinical records do support his statement as far as there being a leg length discrepancy.  The record also shows several incidents where he reported falling, which could possibly account for his current low back disability.   
The Board acknowledges that the Veteran is competent to report his continuing low back pain since separation from service.  It has been established that evidence concerning continuity of symptoms after service is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds the Veteran to be a reliable historian of his experiences and perceived pain since service. See id.; See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, the Veteran’s history of the onset of his low back pain, as well as the chronicity of his low back pain must be addressed by the VA examiner. 
As such, the Veteran should be afforded another VA examination in order to adequately address whether the Veteran’s lumbar spine disability is related to his service. 
Accordingly, the case is REMANDED for the following action:
1. With any necessary assistance from the Veteran, obtain and associate with the claims file all outstanding VA treatment records and VA hospital records related to the Veteran’s claim.
2. Schedule the Veteran for a lumbar spine examination for the purpose of determining whether the Veteran’s low back condition is related to his service.  
The examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding his symptomatology, buddy statements, and undertake any necessary studies or tests.  Then, based on the results of the examination(s), the examiner is asked to address each of the following:
a. The examiner should diagnose all current low back disabilities found to be present.
b. The examiner must opine as to whether it is at least as likely as not that the fall in service caused the Veteran to injure his back, or caused a pelvic fracture, thereby leading to his current low back condition being related to or having its onset in service, to include as a result of a leg length discrepancy caused by the fall in service.
c. The examiner must specifically address the Veteran’s assertions that he injured his low back during his fall in service, and that he has continued to have low back pain since that event. 
d. The examiner must opine as to whether it is at least as likely as not that the Veteran’s current low back condition was caused by a fall, or multiple falls, caused by his service connected left foot conditions. 
In issuing the low back disability opinion, the examiner is reminded that the Veteran is competent to report symptoms such as low back pain during and post service.  
The examiner should provide a complete rationale or explanation for all opinions reached.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999).

							(CONTINUED ON NEXT PAGE)


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112. 

 
S. C. KREMBS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Temple, Associate Counsel 

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