Citation Nr: 18160389
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 17-15 546
DATE:	December 26, 2018
ORDER
Entitlement to service connection for bilateral shin splints, to include as secondary to the service-connected bilateral plantar fasciitis, is denied.
Entitlement to service connection for a lung disorder, to include a disability manifested by shortness of breath, is denied.
Entitlement to an initial rating in excess of 30 percent for the service-connected bilateral plantar fasciitis is denied.
REMAND
Entitlement to a total disability rating based on individual unemployability is remanded.  
FINDINGS OF FACT
1. At no time during the appeal period has the Veteran been found to have a diagnosis of bilateral shin splints.
2. At no time during the appeal period has the Veteran been found to have a lung disorder, to include a disability manifested by shortness of breath.
3. For the entire appeal period, the Veteran’s bilateral plantar fasciitis has manifested as no more than a moderate disability with pain on manipulation and use of the feet.
CONCLUSIONS OF LAW
1. Bilateral shin splints, to include as secondary to the service-connected bilateral plantar fasciitis, were not incurred or aggravated as a result of active service, to include as secondary to service connected bilateral plantar fasciitis. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018).
2. A lung disorder, to include a disability manifested by shortness of breath, was not incurred or aggravated as a result of active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018).
3. The criteria for an initial evaluation in excess of 30 percent for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5276 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from March 1978 to May 1984.
A rating decision dated September 2015 granted service connection for bilateral plantar fasciitis and assigned an initial 30 percent disability rating effective March 19, 2015.
The matter of entitlement to a TDIU has been raised by the record and by statements made by the Veteran. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability for an initial or increased rating, it is part of the claim for benefits for that underlying disability. Thus, a TDIU claim is properly before the Board on appeal.
Service Connection
Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2018). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of service as shown by the service record, the official history of each organization in which the Veteran served, the Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012).
In order to prevail on the issue of entitlement to service connection, there must be (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 present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A Veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). 
Medical evidence is required to demonstrate a relationship between a current disability, and the continuity of symptomatology is demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact, and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc).  To establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-517 (1995).  
1. Entitlement to service connection for bilateral shin splints, to include as secondary to the service-connected bilateral plantar fasciitis
The Veteran asserts that he is entitled to service connection for bilateral shin splints as the disability is related to his active service. He alternatively contends that his shin splints are secondary to his service-connected bilateral plantar fasciitis and ankle conditions. Service treatment records are negative for complaint, diagnosis, or treatment for shin splints. Post-service medical treatment records similarly do not reflect diagnosis or treatment for shin splints.
At an August 2015 VA examination, the examiner opined the Veteran did not currently or previously have shin splint stress fractures, achilles tendonitis, achilles tendon rupture, or any other tibial stress syndrome.
The Veteran’s lay statements of record are competent insofar as they report symptomatology which is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that he asserts a nexus between his claimed bilateral shin splints and his active duty, the Board finds them to be less probative, as the Veteran is not shown to possess expert knowledge which would enable him to render such a nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, his lay statements concerning a nexus between his claimed disability and active service do not constitute competent medical evidence and lack probative value. The Board gives greater probative weight to the August 2015 VA examiner’s opinion as it is both well-reasoned and thorough, having considered the entire record, including the Veteran’s medical history and contentions, and provide specific medical evidence for the opinions rendered. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
After review of the record, the Board finds that the Veteran is not entitled to service connection for bilateral shin splints. See 38 C.F.R. §§ 3.303, 3.304. The August 2015 VA examiner found the Veteran to have no current diagnosis of bilateral shin splints. There is simply no competent and probative evidence of record to contradict the examiner’s conclusion.  Medical treatment notes are silent concerning any current diagnosis of any shin splints.
Further, the evidence does not support the Veteran’s assertions regarding the current existence of shin splints. A review of his available service treatment records does reflect complaint of and treatment for shin splints during active service, and post-service evidence does not establish that he has a current diagnosis of shin splints. To that end, the Board notes that, at no time during the current appeal, has the Veteran been found to have shin splints or any tibial stress syndrome on examination. In the absence of proof of an underlying diagnosis of bilateral patella syndrome, there can be no valid claim as to that issue. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of any current bilateral patella syndrome condition, the Board must conclude the Veteran does not currently suffer from any such disability and must thus deny the Veteran’s claim as to that particular issue. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).
The preponderance of the evidence weighs against the claim for service connection for bilateral shin splints, to include as secondary to the service-connected bilateral plantar fasciitis. There is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.
2. Entitlement to service connection for a lung disorder, to include a disability manifested by shortness of breath
The Veteran also asserts that his claimed lung condition, to include shortness of breath, is related to his active service. Initially, the Board notes service treatment records reflect an incident of sudden pneumothorax in February 1980.
An August 2015 VA examination report also noted the Veteran’s February 1980 sudden left side chest pain and dyspnea which was diagnosed as pneumothorax of the left chest. However, after examination the examiner opined that the Veteran’s claimed lung condition was less likely than not related to service. As rationale he stated the in-service pneumothorax had resolved, it was an acute condition which resolved as expected, and it did not result in any current problems. No other current respiratory condition was diagnosed.
Medical treatment notes reflect normal lung respiration and rhythm without wheezing, rales, or crackles heard. No post-service medical treatment notes reflect a diagnosis or treatment of any lung condition.
Again, the Veteran’s lay statements of record are competent insofar as they report symptomatology which is capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran asserts a nexus between his claimed lung condition and his active duty, the Board finds them to be less probative, as the Veteran is not shown to possess expert knowledge which would enable him to render such a nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, his lay statements concerning a nexus between his claimed disability and active service do not constitute competent medical evidence and lack probative value. The Board gives greater probative weight to the August 2015 VA examiner’s opinion as it is both well-reasoned and thorough, having considered the entire record, including the Veteran’s medical history and contentions, and provide specific medical evidence for the opinions rendered. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
As such, the Board finds the Veteran is not entitled to service connection for a lung condition, to include shortness of breath. See 38 C.F.R. §§ 3.303, 3.304. The August 2015 VA examiner found the Veteran to have no current diagnosis of or medical treatment for any lung condition. There is simply no competent and probative evidence of record to contradict the examiner’s conclusion, and medical treatment notes are silent concerning any current diagnosis of a lung disorder, to include a disability manifested by shortness of breath, at any time during the appeal period. As detailed earlier, in the absence of proof of an underlying diagnosis, there can be no valid claim as to that issue. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the preponderance of the evidence weighs against the Veteran’s claim of entitlement to service connection for a lung disorder, to include a disability manifested by shortness of breath. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.       
Increased Rating
Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119 (1999).
In regard to rating claims involving the musculoskeletal system, regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2018). The factors of disability reside in reductions of normal excursion of movements in different planes, and ratings should consider (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.), (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.), (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.), (d) excess fatigability, (e) incoordination or impaired ability to execute skilled movements smoothly, and (f) pain on movement, swelling, deformity or atrophy of disuse and instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. 38 C.F.R. § 4.45 (2018).
3. Entitlement to an initial rating in excess of 30 percent for the service-connected bilateral plantar fasciitis
The Veteran asserts that a higher initial rating for his bilateral plantar fasciitis is warranted. He is currently rated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5276, effective March 19, 2015.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, a 30 percent rating is warranted for severe bilateral pes planus, characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral pes planus, characterized by 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, Diagnostic Code 5276.
Pertinent evidence of record includes an August 2015 VA examination report. The examination report records the Veteran’s complaints of daily pain in feet and legs, trouble walking, and sleep disturbances with frequent flare-ups and pain with prolonged walking. The examiner diagnosed bilateral plantar fasciitis. The examiner also noted pain accentuated with use and pain on manipulation of both feet. Specifically, the examiner noted pain on movement, pain on weight-bearing and non weight-bearing, disturbance of locomotion, interference with standing and sitting. No swelling on use, marked deformity or pronation, marked inward displacement and severe spasm of the tendo achillis on manipulation, characteristic callouses, or tenderness of plantar surfaces was noted. Finally, the examiner found the Veteran’s bilateral plantar fasciitis interfered with his employment because he was unable to stand or walk for an extended period of time.
Medical treatment records noted July 2014 reflects the Veteran’s continuous complaints of bilateral heel and arch pain with a prescription for orthotic inserts and night splints.
After reviewing the above evidence, the Board finds that for the entire appeal period the Veteran’s bilateral plantar fasciitis more closely approximated a 30 percent disability rating under Diagnostic Code 5276. There is no evidence indicating that the Veteran had marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, or symptoms not improved by orthopedic shoes or appliances. Instead, the evidence of record reflects that the Veteran’s bilateral plantar fasciitis manifested as severe pain on use and manipulation of both feet without swelling, evidence of marked deformity, characteristic callouses, inward bowing, or displacement. Thus, the Board finds that the Veteran’s bilateral plantar fasciitis warrants no more than the currently assigned initial 30 percent rating. 
The Veteran is competent to report certain obvious symptoms of disability, but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran’s service connected disability has been provided by the medical professionals who have examined him. The overall medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).
The Veteran’s representative alternatively asserts the Veteran is entitled to extraschedular consideration for his service-connected bilateral plantar fasciitis. After review of the evidence, the Board finds that no such referral is necessary.
In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant’s service connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.
Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as “marked interference with employment” and “frequent periods of hospitalization.” Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. Id. 
After comparison of the Veteran’s disability picture with the schedular rating criteria’s contemplated symptoms, severity thereof, and functional impairments therefrom, the Board finds that the Veteran’s level of severity and symptomatology of his service-connected bilateral plantar fasciitis is contemplated by the established criteria found in the rating schedule. Accordingly, the Board finds that the evidence does not present such an exceptional or unusual disability picture that the available schedular evaluations for the service-connected bilateral plantar fasciitis disability are inadequate. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. 
Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 
In short, the rating criteria reasonably describe the Veteran’s disability level and symptomatology. No higher rating, for which the case would have to be rated on an extraschedular basis, is appropriate in this case. Thus, the Board has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321 (b)(1) is not warranted.
In addition, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366, 369-7 (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). 
When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim for an initial rating in excess of 30 percent for bilateral plantar fasciitis.   
REASONS FOR REMAND
Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded.
A claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) may be properly before the Board if such a claim is alleged or raised by the record. Here, the Veteran’s representative indicated in correspondence dated November 2018 that the Veteran’s service-connected bilateral plantar fasciitis impairs the Veteran’s employment ability. See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Additionally, the August 2015 VA examiner noted that the Veteran’s service-connected disability impacts his ability to work. Thus, on remand, the AOJ should provide the Veteran with a notification letter concerning his claim of entitlement to TDIU that complies with the notification requirements of 38 U.S.C. § 5103 (a) (2012), 38 C.F.R. § 3.159 (b) (2018) and VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to the Veteran, for completion and return to VA. A medical opinion is also necessary.
The matters are REMANDED for the following action:
1. Provide the Veteran with a notification letter concerning his claim of entitlement to TDIU that complies with the notification requirements of 38 U.S.C. § 5103 (a) (2012), 38 C.F.R. § 3.159 (b) (2018). Specifically, this letter must set forth the criteria for establishing entitlement to a TDIU and include information on the evidence required in this regard, the Veteran’s and VA’s respective duties for obtaining evidence, and how VA determines disability evaluations and effective dates. The RO should also provide a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to the Veteran, for completion and return to VA. 
2. Then, afford the Veteran an appropriate VA examination to determine his level of functional impairment due to his service-connected disabilities. The examiner is hereby informed that the Veteran’s current service-connected disabilities include:  bilateral plantar fasciitis (30%), PTSD (30%), right ankle tendonitis (10%), left ankle tendonitis (10%), and allergic rhinitis (0%).  All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The electronic claims file must be made accessible to the examiner.
The examiner is asked to opine as to the effect of the Veteran’s service-connected disabilities on his employability—taking into account the Veteran’s educational and occupational history.  Rationale for all opinions expressed should be provided.
 
THERESA M. CATINO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Peden, Associate Counsel 

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