FOOT INJURIES, OTHER

KATHLEEN K. GALLAGHER · 2017 · Case ID: 1725768

MIXED

Summary

The Veteran, who served from October 1950 to March 1952, appeals the denial of an increased rating for his left heel wound residuals with fractured healed left calcaneus and traumatic arthritis, and the denial of service connection for bilateral knee disorder, left hip disorder, and low back disorder, claimed as secondary to his service-connected left foot conditions. The Board denied the increased rating for the left heel condition, finding that the evidence did not support a rating higher than 20 percent under Diagnostic Code 5284, as the Veteran's foot disability remained moderately severe and did not approximate severe impairment. The Board noted that while the Veteran experienced pain and required assistive devices, the objective medical evidence did not demonstrate a level of impairment warranting a higher rating. The Board also considered other diagnostic codes for foot disabilities but found none applicable for a higher rating. For the secondary claims of bilateral knee disorder, the Board found the evidence in equipoise, granting service connection based on the benefit of the doubt. However, for the left hip and low back disorder claims, the Board found the medical opinions insufficient due to lack of rationale and internal conflict, remanding these claims for addendum opinions on the etiology and service connection. The Board noted that the TDIU claim was separately adjudicated and not perfected for appellate review.

Rationale

Evidence did not support rating higher than 20% under DC 5284.; Disability remained moderately severe, not approximating severe impairment.; No other applicable diagnostic codes for higher rating found.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5284

Docket No.

06-13 946

Full Decision Text

Citation Nr: 1725768
Decision Date: 07/06/17 Archive Date: 07/18/17

DOCKET NO. 06-13 946 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUES

1. Entitlement to a rating higher than 20 percent for left heel wound residuals with fractured healed left calcaneus and traumatic arthritis.

2. Entitlement to service connection for a bilateral knee disorder, status post bilateral knee replacements, to include as secondary to service-connected left heel wound residuals and/or left foot drop.

3. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected left heel wound residuals and/or left foot drop.

4. Entitlement to service connection for a low back disorder, to include as secondary to service-connected left heel wound residuals and/or left foot drop.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel

INTRODUCTION

The Veteran had active duty from October 1950 to March 1952.

These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in November 2005 and April 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The April 2006 rating decision was issued by a special expedited processing unit ("Tiger Team") at the RO. The November 2005 rating decision concerned the increased rating claim now on appeal, and the April 2006 rating decision addressed the service connection issues.

The Veteran provided testimony at a hearing conducted by a Decision Review Officer at the RO in August 2010. He also provided testimony at a hearing conducted by the undersigned Veterans Law Judge (VLJ) via video-conference in August 2011. Transcripts of both hearings are of record.

In October 2011 the Board remanded the claims for additional development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).

FINDINGS OF FACT

1. The Veteran's left heel wound residuals with fractured healed left calcaneus and traumatic arthritis have been manifested by pain and stiffness, with flare-ups in symptoms triggered by prolonged walking and standing and with weight bearing, throughout the period relevant to the current appeal; the level of impairment demonstrated by the Veteran's foot disability amounts to no more than a moderately severe level of impairment for the entire rating period on appeal.

2. The evidence of record is in equipoise as to whether the Veteran's bilateral knee disorder, status post bilateral knee replacements, was caused or aggravated by the service-connected left heel wound residuals and/or left foot drop.

CONCLUSIONS OF LAW

1. The criteria for a disability rating greater than 20 percent for left heel wound residuals with fractured healed left calcaneus and traumatic arthritis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2016).

2. The requirements for establishing service connection for bilateral knee disorder, status post bilateral knee replacements, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016).
The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b
. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016).
The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). Here, VCAA notice was provided by correspondence in December 2004, June 2005 and January 2006. The claims were last adjudicated in September 2016.

Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post-service treatment records and VA examination and opinion reports were obtained. Based on a review of the record, the Board finds that there is no indication that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Moreover, the AOJ has substantially complied with the previous remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues herein decided.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

By a rating decision in June 1952, the RO granted service connection for left heal fracture calcaneus and traumatic arthritis and assigned separate 20 percent disability. He contends he is entitled to a higher disability rating.

The Board also notes that, secondary to service-connected left heel wound residuals with fractured healed left calcaneus and traumatic arthritis, service connection has been established for neurological manifestations characterized as left foot drop. This disability is separately rated and not on appeal at this time.

The Veteran's left heel wound residuals with fractured healed left calcaneus is currently evaluated as 20 percent disabling under the criteria found at 38 C.F.R § 4.71a, Diagnostic Code 5284 for other foot injuries. Under Diagnostic
rating decision in June 1952, the RO granted service connection for left heal fracture calcaneus and traumatic arthritis and assigned separate 20 percent disability. He contends he is entitled to a higher disability rating.

The Veteran's left heel wound residuals with fractured healed left calcaneus is currently evaluated as 20 percent disabling under the criteria found at 38 C.F.R § 4.71a, Diagnostic Code 5284 for other foot injuries. Under Diagnostic Code 5284, a 10 percent rating is warranted for a foot injury which is moderate in degree. A 20 percent rating is warranted for a moderately severe foot injury. A 30 percent rating is warranted for a severe foot injury. A 40 percent rating may be assigned if there is actual loss of use of the foot.

On VA examination in December 2004, the Veteran reported cramping in his toes at night which required him to get out of bed and walk around. He also complained of tingling in the medial side of the foot. Physical examination showed a scar on the medial side of the left heel just at the insertion of the Achilles tendon and calcaneus. The scar on the medial side of the heel was depressed, but nontender. His feet showed good dorsalis pedis pulses, bilaterally, but absent posterior tibial pulses, bilaterally. His left foot showed hammertoe formation of the left second toe. The skin was normal with good hair growth and no evidence of ulceration. The Veteran's balance was observed to be poor as he was somewhat unsteady on his heels. His gait was normal without a limp. X-rays showed mild spurring of the plantar aspect of the calcaneus. The examiner opined that the Veteran suffered minimal residuals from his self-inflicted in-service gunshot wound, mainly cramping in his foot at night and some tingling in his foot of unknown etiology.

On VA examination in September 2005, the Veteran complained of left for pain with walking. He also related soreness on the top of his toes and reported that his right foot did not bother him. The Veteran had been given special shoes, but he did not require a cane or a crutch for ambulation. He was able to drive his car, but he was unable to engage in other activities such as dancing, shopping or go to fairs or flea markets where he had to do a lot of walking. Physical examination showed left foot hammertoes of the second, third and fourth toes with deformity of 55 degrees on the second, 60 degrees on the third and 53 degrees on the fourth. Pedal pulses were absent, bilaterally, although a very weak dorsalis pedis pulse could be felt on the left. There was no skin breakdown, callous formation or nail bed changes. December 2004 left foot x-rays of his left foot and ankle showed mild spurring of the plantar aspect of the calcaneus with vascular calcifications in the foot and no evidence of osteoarthritis of the ankle, although there was some calcification at the insertion of Achilles tendon. X rays of his left foot and ankle done on September 2005 showed no osteoarthritis of the ankle. There was a small spur of the os calcis. The left foot x-ray showed vascular calcifications. The examiner diagnosed gunshot wound of the left heel with no evidence of residual fracture, osteomyelitis or osteoarthrosis, but with subjective complaints of increasing pain in his foot.
Objectively, there was no change in the findings in the last nine months since his previous examination and the x-ray studies were also unchanged.

A private treatment record in July 2006 noted that the Veteran's gait was not antalgic. He exhibited some weakness in his left foot, and reported symptoms which the clinician associated with foot drop.
On VA examination in October 2011, the Veteran reported limping associated with the left foot drop. He required special shoes and a cane for ambulation. Examination revealed no Morton's neuroma, hammertoes, metatarsalgia, hallux valgus, hallux valgus, acquired claw foot, bilateral weak foot and pea cavus. There was no evidence of malunion or nonunion of tarsal or metatarsal bones. The Veteran's left foot injury was described as moderately severe, yet the examiner found that it had no impact his ability to work. X-rays revealed no
He exhibited some weakness in his left foot, and reported symptoms which the clinician associated with foot drop.
On VA examination in October 2011, the Veteran reported limping associated with the left foot drop. He required special shoes and a cane for ambulation. Examination revealed no Morton's neuroma, hammertoes, metatarsalgia, hallux valgus, hallux valgus, acquired claw foot, bilateral weak foot and pea cavus. There was no evidence of malunion or nonunion of tarsal or metatarsal bones. The Veteran's left foot injury was described as moderately severe, yet the examiner found that it had no impact his ability to work. X-rays revealed no abnormalities.

On VA examination in December 2015, the Veteran complained of intermittent left foot pain, rated as 7 out of 10 in severity, with flare-ups in symptoms, including pain and stiffness. Reportedly the pain had worsened over the years and he took tramadol for back pain and left foot pain with relief. He required arch support inserts, bilaterally. The Veteran used a cane for ambulation and occasionally used a wheelchair. The Veteran reported that prolonged standing and movement with weight bearing worsened the pain. On examination, there was no objective evidence of pain and the Veteran denied any pain. The foot condition did not chronically compromise weight bearing. There was weakened movement, limited motion, incoordination, pain on movement, pain on weight bearing, instability, disturbance of locomotion, and pain with prolonged standing. The examiner found that pain, weakness, and incoordination significantly limited the Veteran's functional ability during flare-ups or when the left foot was used repeatedly over a period of time. The examiner noted weakness in the left foot and marked decreased range of motion and incoordination that made it easier to trip and fall, especially on uneven surfaces. X-rays failed to show arthritis or other abnormalities. Functioning is not so diminished that amputation with prosthesis would equally serve the Veteran. The examiner noted a left lateral foot scar measuring 4cm in length by 0.3cm wide. The scar was linear, superficial, horizontal, well healed, and nontender. There was a second scar on the proximal medial left foot that measured 2.5 cm in length and was 1.5 cm wide. This scar was depressed. The scar was well healed, nontender, superficial and non-linear. The examiner opined that the Veteran's left foot condition impacted his ability to do physical work, but he remained able to do sedentary work. The examiner described the Veteran's left foot disability as moderate in severity.

In light of findings above, the Board concludes that a rating in excess of 20 percent rating based upon Diagnostic Code 5284 is not warranted for the left foot throughout the appeal period. Given the symptomatology described on the examination and treatment reports noted above, the overall disability picture does not more closely approximate severe impairment of the left foot.

Here, the Veteran's service-connected left foot disability has been manifested by pain with prolonged standing and with weight bearing, as well as limited motion due to pain, weakness and incoordination. He endorsed flare-ups in symptoms effectively treated with over-the-counter medication. He also required assistive devices for ambulation and shoe inserts. The Veteran has complained of stiffness and cramps. There was no swelling, heat or redness. There was no history of hospitalization or surgery during the appeal. The skin was normal. Examinations revealed no evidence of hallux valgus, hallux rigidus, acquired pes cavus, Morton's neuroma, metatarsalgia, or nonunion/malunion of the tarsal or metatarsal bones. The Veteran did not have "inward" bowing of the Achilles tendon or inward displacement. The examiners throughout have described the severity of the Veteran's left foot disability as no more than moderately severe. As such, the overall disability of the left foot related to left heel wound residuals with fractured healed left calcaneus and traumatic arthritis has remained no more than moderately severe under Diagnostic Code 5284. While the Veteran has described pain with walking and standing and weight bearing, this does not in the Board's judgment demonstrate more than moderately severe functional impairment of the foot, and there is no evidence suggesting that the left heel wound residuals with fractured healed left calcaneus and traumatic arthritis, is productive of symptoms that meet or approximate what may be described as severe functional impairment of the left foot. Thus, a rating in excess of 20 percent under Diagnostic Code 5284 for either foot is also not warranted.

The Veteran has reported that his left foot pain at times became so
the left foot related to left heel wound residuals with fractured healed left calcaneus and traumatic arthritis has remained no more than moderately severe under Diagnostic Code 5284. While the Veteran has described pain with walking and standing and weight bearing, this does not in the Board's judgment demonstrate more than moderately severe functional impairment of the foot, and there is no evidence suggesting that the left heel wound residuals with fractured healed left calcaneus and traumatic arthritis, is productive of symptoms that meet or approximate what may be described as severe functional impairment of the left foot. Thus, a rating in excess of 20 percent under Diagnostic Code 5284 for either foot is also not warranted.

The Veteran has reported that his left foot pain at times became so severe that it interfered with his mobility and he was unable to walk long distance or stand for long period of time. However, the medical evidence shows that that the Veteran was able to ambulate with special shoes with inserts and a cane, with occasional use of a wheelchair for shopping and other activities that require prolonged walking. The evidence does not show that manifestations of his foot disability results in any additional functional loss so as to more closely approximate a severe level of impairment, or worse, to warrant entitlement to a higher disability rating under Diagnostic Code 5284 for any period. 38 C.F.R. §§ 4.3, 4.7.

The VA disability rating schedule includes nine separate diagnostic codes for foot disabilities. Eight of them are associated with a specific condition, or conditions, while one of them, Diagnostic Code 5284, refers generally to "Foot injuries, other." The Board has considered whether there is an applicable diagnostic code other than Diagnostic Code 5284 which would provide the Veteran with a higher evaluation, or a separate evaluation but finds that there is not.

Here, there are no other diagnostic codes pertinent to the foot that would provide a basis for a higher rating. During the pendency of the claim, there has been no evidence of foot weakness, or acquired claw foot. Therefore, a higher evaluation under Diagnostic Code 5277 for bilateral weak foot or Diagnostic 5278 for acquired claw foot is not warranted. There is no evidence of Morton's disease, hallux valgus or hallux rigidus, or pes planus, therefore, a higher evaluation under Diagnostic Codes 5276, 5279, 5280 and 5281 is not warranted. There is further no evidence of malunion or nonunion of the tarsal or metatarsal bones such that an increased rating under Diagnostic Code 5283 is warranted. To the extent the examiners in 2004 and 2005 noted hammertoes, the highest possible evaluation is 10 percent under Diagnostic Code 5282, and therefore, assigning a rating under this Diagnostic Code would not afford the Veteran a higher disability rating. 38 C.F.R. § 4.71a.

The Board has considered other provisions which might provide for a higher evaluation with respect to the issue on appeal, including 38 C.F.R. §§ 4.40 and 4.45, as they relate to pain and any resulting functional impairment due to pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, Diagnostic Code 5284 does not evaluate the Veteran's foot disability with respect to range of motion; therefore, sections 4.40 and 4.45, with respect to pain on motion, are not applicable. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996).

Further, the Board has considered whether the scars associated with the service-connected left foot warrant separate, compensable disability ratings. The Board notes that two amendments were made to the criteria for rating the skin, effective August 30, 2002, and October 23, 2008. 67 Fed. Reg. 49,596 (July 31, 2002); 38 C.F.R. § 4.118 , Diagnostic Codes 7800 to 7833 (2002); 73 Fed. Reg. 54,708 (September 23, 2008); 38 C.F.R. § 4.118 , Diagnostic Codes 7800 to 7805 (2016). Generally, in a claim for an increased rating, the Board considers both the former and current schedular criteria where the rating criteria are amended during the course of an appeal. However, the amendments to the rating criteria in 2002 occurred before the Veteran filed this increased rating claim, and the amended regulations effective in October 2008 are only applicable to claims received on or after October 23, 2008, or if the claimant expressly requests consideration under the new criteria, which has not been
2002); 73 Fed. Reg. 54,708 (September 23, 2008); 38 C.F.R. § 4.118 , Diagnostic Codes 7800 to 7805 (2016). Generally, in a claim for an increased rating, the Board considers both the former and current schedular criteria where the rating criteria are amended during the course of an appeal. However, the amendments to the rating criteria in 2002 occurred before the Veteran filed this increased rating claim, and the amended regulations effective in October 2008 are only applicable to claims received on or after October 23, 2008, or if the claimant expressly requests consideration under the new criteria, which has not been done in this case. As his claim for increased ratings was received prior to2008, the most recent amendments are not applicable in this instance and will not be applied in this case.

To warrant a compensable rating under the applicable criteria, a scar would need to involve the head, face or neck and have at least one character of disfigurement under Diagnostic Code 7800; to be deep or cause limited motion and affect an area or areas exceeding at least 6 square inches or 39 square centimeters under Diagnostic Code 7801; be superficial and affect an area or areas of 144 square inches or 929 square centimeters or greater under Diagnostic Code 7802; to be superficial and unstable under Diagnostic Code 7803; to be superficial and painful on demonstration under Diagnostic code 7804; or to cause some limitation of the function of the part affected under Diagnostic Code 7805. 38 C.F.R. § 4.118, Diagnostic Code 7800-7805 (2007).

In this case, the left foot scarring does not involve the head, face, or neck and there is no evidence that any of the scars is deep, causes any limitation of motion or function, affects an area exceeding at least 6 square inches (39 square centimeters), or is unstable. There is also no evidence that any of the scars was painful on demonstration.

Therefore, separate, compensable ratings for left foot scarring are not warranted at any time during the appeal.

The Board observes that the severity of the Veteran's symptomatology in his left foot have been relatively constant throughout the period of this appeal, and therefore, "staged" ratings are not warranted. Hart, supra. At no point does the record reflect more severe symptoms than those associated with the 20 percent disability ratings assigned under Diagnostic Codes 5284.

As the preponderance of the evidence is against the claim for a higher rating, the appeal is denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Other Consideration

The Board has also considered the potential application of 38 C.F.R. § 3.321 (b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected left foot disability is fully contemplated by the rating criteria whether considered individually or in conjunction with additional service connected disability. Mittleider v. West, 11 Vet. App. 181 (1998).

In this case, there is no objective evidence, or allegation, suggesting that the disability picture presented by the Veteran's left foot disability is exceptional or that the schedular criteria are inadequate. The Board does not find any symptoms or functional impairment that is not already encompassed by the currently assigned 20 percent schedular ratings for the left foot disorder. As stated above, the Veteran's foot disability is manifested by pain with increased pain after prolonged walking or standing, or with weight bearing. The schedular criteria under Diagnostic Code 5284 does not delineate such symptomatology in the criteria and, instead, more generally considers the overall disability picture, without limitation of factors for consideration; therefore, these more specific findings and impairments may be considered when assessing the overall degree of severity for a rating under Diagnostic Code 5284. In this case, the Board finds that the Veteran's left foot disorder is appropriately considered to more nearly approximate a moderately severe level of impairment and, accordingly, contemplates all of the encompassed symptomatology. Additionally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, there
; therefore, these more specific findings and impairments may be considered when assessing the overall degree of severity for a rating under Diagnostic Code 5284. In this case, the Board finds that the Veteran's left foot disorder is appropriately considered to more nearly approximate a moderately severe level of impairment and, accordingly, contemplates all of the encompassed symptomatology. Additionally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, there are no additional symptoms that have not been attributed to a specific service-connected disorder. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Thus, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996).

In sum, the preponderance of the evidence is against referral for extraschedular consideration of the evaluation of the Veteran's left foot disability. Consequently, the benefit-of-the-doubt rule does not apply, and referral for extraschedular consideration is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009), where the Court held that a TDIU claim is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, during the pendency of the Veteran's appeal, the RO considered and denied the Veteran's claim for entitlement to a TDIU in a July 2015 rating decision; the Veteran has not appealed, nor has the Veteran made any statements that his left foot disability affects his employment since the denial. Such adjudication constitutes a permissible bifurcation of the TDIU claim from the increased rating claim on appeal. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006); Holland v. Brown, 6 Vet. App. 443, 447 (1994); see also Locklear v. Shinseki, 24 Vet. App. 311 (2011). Given the foregoing, the Board concludes that the TDIU claim was separately adjudicated and not perfected for appellate review.

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to
. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a).

The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340.
If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303(b).

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) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a).

During the pendency of this appeal, there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the overall intention of the amendment to 38 C.F.R. § 3.310 (b) was to implement the Allen decision, the amended 38 C.F.R. § 3.310 (b) clearly institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. Clearly, the new regulation is restrictive and the Board shall not give impermissibly retroactive effect to the new regulation in this case. Since the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which clearly favors the claimant. See 38 C.F.R. § 3.310 (effective October 10, 2006).

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
connection granted. Clearly, the new regulation is restrictive and the Board shall not give impermissibly retroactive effect to the new regulation in this case. Since the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which clearly favors the claimant. See 38 C.F.R. § 3.310 (effective October 10, 2006).

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 evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54.

The Veteran contends that he currently suffers from a bilateral knee disorder that was caused or aggravated by his service-connected left wound residuals and/or left foot drop. He specifically asserts that as a result of the service-connected left foot disorders he developed an altered gait which caused him to develop arthritis in the knees.

The evidence of record shows that the Veteran has been diagnosed with bilateral knee osteoarthritis status post-bilateral total knee replacement. Accordingly, the first element of service connection, a current disability, is met.

The service treatment records do not document any complaints history or findings consistent with a bilateral knee disorder, nor was arthritis in either knee shown within one year of discharge from service.

However, the as noted above, the Veteran's contention is that his bilateral knee disorder is secondary to his service-connected left foot disorders. Thus, the determinative question in this case is whether his bilateral knee disability is caused or aggravated by his service-connected diabetes left foot drop and/or left heel wound residuals. On this point, the Board finds that there is evidence for and against the claim. 38 C.F.R. § 3.310 (2016).

A September 2004 private medical record shows that the Veteran was seen for an injury to the lateral side of his status post-left knee replacement. A fall injury was noted to have occurred earlier that month, at which time the Veteran fell hard over a pallet. The assessment was contusion and mild sprain of the left knee. Subsequent treatment records document treatment for a bilateral knee disorder.

A March 2006 letter from a private physician, F.C.C., MD, noted that the Veteran underwent bilateral knee replacement as a result of arthritis which was secondary to his drop foot disorder, which was caused by his [service-connected] left heel wound residuals. The physician did not adequately support his opinion with a discussion of the underlying medical principles involved in reaching his conclusion.

On VA examination in November 2011, the examiner noted a history of bilateral knee replacement for arthritis in April 2000. The Veteran reported onset of knee pain from arthritis approximately 15 years earlier. He had knee injections which did not help and subsequently underwent bilateral total knee replacement. The Veteran asserted that his left foot disorders altered his gait and caused him to develop bilateral knee arthritis. He was unable to recall when he gait became altered, but stated that he noticed it since at least 1993 after he underwent back surgery. The examiner indicated that while the onset of gait disturbance was unclear, an altered gait could lead to early arthritis. Accordingly, the examiner opined that arthritis of both knees and the resulting total knee replacements was at least as likely as not aggravated by the left foot injury and the left foot drop.

By contrast a VA examiner in December 2015, noted a history of bilateral total knee replacement in 2000 with residual osteoarthritis. The examiner opined that the bilateral knee osteoarthritis was less likely
ait and caused him to develop bilateral knee arthritis. He was unable to recall when he gait became altered, but stated that he noticed it since at least 1993 after he underwent back surgery. The examiner indicated that while the onset of gait disturbance was unclear, an altered gait could lead to early arthritis. Accordingly, the examiner opined that arthritis of both knees and the resulting total knee replacements was at least as likely as not aggravated by the left foot injury and the left foot drop.

By contrast a VA examiner in December 2015, noted a history of bilateral total knee replacement in 2000 with residual osteoarthritis. The examiner opined that the bilateral knee osteoarthritis was less likely than not incurred in or caused by service. A review of the claims file and examination of the Veteran supported a finding that bilateral knee osteoarthritis was most likely age-related. Additionally, the examiner opined that it was less likely than not that any diagnosed bilateral knee disorder was caused or aggravated by the Veteran's service-connected left heel wound residuals and/or left foot drop. No rationale in support of the opinions rendered was provided.

In April 2016 a VA medical examiner rendered an opinion report addressing the Veteran's claim for service connection for bilateral knee osteoarthritis. The examiner noted that there was contradictory evidence in the claims file regarding the etiology of the Veteran's bilateral knee disorder. Specifically, the examiner noted the 2011 VA examiner's findings that the Veteran's bilateral knee arthritis status post-replacement was at least as likely as not aggravated by the service-connected left foot injury with left foot drop, and the opinion of the VA examiner in 2015 who opined that the Veteran's bilateral knee condition was less likely than not to have been aggravated by the Veteran's service-connected left heel wound residuals and/or left foot drop.

The examiner noted that although arthritis of a foot could cause gait disturbances, which could the contralateral knee to move in an abnormal way, which could cause arthritis in that knee over time, there was no evidence of it causing bilateral arthritis. Here the Veteran's knee arthritis was bilateral, which was indicative of onset of the condition at relatively the same time, which in turn indicated that the nidus for the knee injuries was the same for each knee. Moreover, the Veteran's foot drop was mild in severity and it did not require wearing a foot brace of any kind. Thus it was unlikely to have caused any severe or moderate issues with gait disturbance, which would also lead to the conclusion that his knees were not aggravated by his foot condition. After reviewing all of the evidence in the claims file, the examiner opined that it was less likely than not that the Veteran's bilateral knee arthritis and subsequent bilateral knee replacements were aggravated beyond the natural progression by his service connected left foot injury.

The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of balance. In this matter, the Board is of the opinion that this point has been attained, based on the medical opinion of the private physician in March 2006 and the VA examiner in November 2011, which support a finding that the Veteran's left foot disorders altered the Veteran's gait, which was known to cause early arthritis, and therefore, the left foot disorders as likely as not aggravated his bilateral knee osteoarthritis status post-total knee replacement. The Board acknowledges that the VA examiners in 2015 and 2016 provided negative nexus opinions. However, the VA examiner in 2015 provided no rationale in support of the opinion. Concerning the opinion of the VA examiner in 2016, the examiner conceded that an altered gait could cause arthritis of the knee, however, he concluded that the left foot disorders did not cause or aggravate the bilateral knee disability because the left foot drop was mild in severity. The Board finds that the basis for the opinion rendered is inconsistent with the evidence of record as the Veteran's left foot drop has been manifested by moderately severe injury of the sciatic nerve.

Resolving all reasonable doubt in the Veteran's favor, the weight of the competent and credible medical evidence demonstrates a nexus between the Veteran's current bilateral knee disability and the service-connected left foot drop and left heel wound residuals. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Therefore, service connection for bilateral knee osteoarthritis as secondary to the service connected condition of left foot disorders is granted. 38 U.S.C.A. § 5107(b) (West 2014);
, the weight of the competent and credible medical evidence demonstrates a nexus between the Veteran's current bilateral knee disability and the service-connected left foot drop and left heel wound residuals. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Therefore, service connection for bilateral knee osteoarthritis as secondary to the service connected condition of left foot disorders is granted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102; Gilbert, supra.

ORDER

A rating higher than 20 percent for left heel wound residuals with fractured healed left calcaneus and traumatic arthritis is denied.

Service connection for a bilateral knee disorder, status post bilateral knee replacements, is granted.

REMAND

The Veteran contends that he currently suffers from a left hip disability and low back disorder as secondary to his service-connected left wound residuals and/or left foot drop. He specifically asserts that as a result of the service-connected left foot disorders he developed an altered gait which caused him to develop the claimed disabilities.

The evidence of record shows that the Veteran has been diagnosed degenerative joint and disc disease of the lumbar spine. Additionally, an October 2004 clinical treatment note contained a diagnosis of post-traumatic bursitis of the left hip and a VA examiner in December 2015 diagnosed hip strain.

A March 2006 letter from a private physician, F.C.C., MD, noted that the Veteran had strain, affecting his left hip and lower back, all of which was "caused by the effects" of his [service-connected] left foot wound residuals.

On VA examination in November 2011, the examiner noted a diagnosis of degenerative disc disease requiring surgery in 1993 for disc protrusion. Accordingly, the examiner opined that the back condition was not caused by or aggravated the left foot condition because gait disturbance associated with the left foot disorders did not caused disc disease, but rather the opposite. With respect to the left hip, the Veteran reported a history of left hip pain for several years. The examiner noted that no diagnosis was ever made and imaging studies of the left hip revealed no abnormalities. As such, an opinion regarding the left hip complaints was not rendered.

On VA back examination in December 2015, the examiner noted osteopenia and multilevel degenerative changes of the lumbar spine, which required surgery in 1993. Following a review of the claims file and an examination of the Veteran, the examiner opined that the Veteran's lower back condition was less likely than not incurred in or caused by service. The examiner indicated that the Veteran's low back condition was most likely age-related. The examiner further found that it was less likely than not that any diagnosed low back disorder was caused or aggravated by the Veteran's service-connected left heel wound residuals and/or left foot drop.

Concerning the left hip, the Veteran reported a history of bilateral hip strain with residual left hip pain for the last four to five years. The examiner opined that it was less likely than not that any diagnosed left hip disorder was incurred in or caused by service. It was also noted that it was less likely than not that any left hip disability was caused or aggravated by the Veteran's service-connected left heel wound residuals and/or left foot drop. The examiner based the opinion on a finding that that the Veteran's bilateral hip strain was acute, self-limiting, and would not result in chronic sequelae.

The Board finds that the medical opinions of record addressing the Veteran's claims are insufficient (lacking rationale, internal conflict) to decide the claims on appeal and an addendum medical opinions are needed. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Allen, 7 Vet. App. at 448. To date, an adequate opinion addressing the etiology of left hip condition and low back disorder has not been obtained, and therefore a remand is necessary in order to provide an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Accordingly, the case is REMANDED for the following action:

1. Forward the Veteran's claims file to an appropriate VA examiner for an addendum opinion to determine the Veteran's left hip disability and/or low back disorder were caused or aggravated by a service-connected disability. If the examiner determines that the Veteran should be provided another VA examination, one should be scheduled. Following review of the file, the examiner should provide
. To date, an adequate opinion addressing the etiology of left hip condition and low back disorder has not been obtained, and therefore a remand is necessary in order to provide an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Accordingly, the case is REMANDED for the following action:

a. Is it at least as likely as not that any diagnosed left hip, and/or low back disorder, is the result of the Veteran's active military service? Please explain why or why not.
b. Is it at least as likely as not that any diagnosed left hip and/or low back disorder is caused or aggravated (made permanently worse beyond the natural progression of the disease) by the Veteran's a service-connected disability, to include left heel wound residuals and/or left foot drop? Please explain why or why not.

2. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented.

3. Then, adjudicate the Veteran's claims on appeal. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response.

The appellant has the right to submit additional evidence and argument on the matter or 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).

____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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