Citation Nr: 9934429 Decision Date: 12/09/99 Archive Date: 12/16/99 DOCKET NO. 96-35 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased (compensable) disability rating for cervical dysplasia. 2. Entitlement to an increased (compensable) disability rating for bilateral pes planus and heel spurs. 3. Entitlement to service connection for an eye disability. 4. Entitlement to service connection for a blocked ureter. 5. Entitlement to service connection for painful joints. 6. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Reichelderfer INTRODUCTION The veteran served on active duty from June 1984 to June 1994. This appeal arises from a rating decision of April 1995 from the New Orleans, Louisiana, Regional Office (RO). This decision will address the issues of increased disability ratings for cervical dysplasia and pes planus. The remand that follows will address the service connection issues. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's increased rating claims has been developed. 2. The veteran's cervical dysplasia produces at most moderate symptoms. 3. The medical evidence does not show severe symptoms that are the chronic residuals of infections, burns, chemicals, or foreign bodies. 4. The medical evidence does not show that the veteran's gynecological disability is under continuous treatment. 5. There is flattening or loss of the longitudinal arch and subjective complaints of pain. 6. There is no evidence of the weight bearing line being over or medial to the great toe, or bowing of the tendo achillis. There was no pain on manipulation. 7. There is no evidence of disability related to the heel spurs. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating for cervical dysplasia are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.116a, Diagnostic Codes 7612, 7615 (1994); 38 C.F.R. §§ 4.7, 4.20, 4.116, Diagnostic Codes 7612, 7615 (1999). 2. The criteria for an increased (compensable) disability rating for bilateral pes planus and heal spurs are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.14, 4.20, 4.31, 4.71a, Diagnostic Codes 5276, 5284 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board of Veterans' Appeals (Board) finds that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, plausible claims have been presented. The veteran has not indicated that additional relevant evidence of probative value may be obtained which has not already been sought and associated with the claims folder. Accordingly, the Board finds that the duty to assist, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. The severity of a disability is ascertained by application of the criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities contained in 38 C.F.R. Part 4 (1999) (Schedule). The ratings are based on the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991). 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 (1999). The use of manifestations not resulting from service- connected disease or injury in establishing the service- connected evaluation, and the evaluation of the same disability manifestations under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (1999). Where the Schedule does not list a specific disability, the disability will be rated under criteria where the functions affected, anatomical localization, and symptomatology are analogous. 38 C.F.R. § 4.20 (1999). Where the Schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). Cervical dysplasia Following issuance of a supplemental statement of the case in February 1997, the veteran provided additional medical records and underwent a VA examination. A supplemental statement of the case has not been issued that addresses these records relative to the issue of an increased disability rating for cervical dysplasia. However, since the evidence received does not address the cervical dysplasia, a supplemental statement of the case is not necessary. Therefore, the Board will proceed with consideration of the veteran's claim without referral of this issue to the RO for a supplemental statement of the case. Cf. 38 C.F.R. §§ 19.31, 19.37 (1999). In a rating decision in April 1995, service connection for "cervical dysplasia; condyloma; s/p [status post] cryo procedure" was granted with a noncompensable disability rating assigned. The noncompensable rating has remained in effect since that time. Under the criteria that were in effect at the time the veteran initiated her claim, Diagnostic Code 7612 for "Cervicitis" and Diagnostic Code 7615 for "Oophoritis" provide that a non compensable rating is warranted for mild symptoms. Moderate symptoms warrant a 10 percent rating and severe symptoms that are chronic residuals of infections, burns, chemicals, foreign bodies, etc. warrant a 30 percent rating. 38 C.F.R. § 4.116a, Diagnostic Codes 7612, 7615 (1994). The gynecological rating criteria were revised in 1995. 60 Fed.Reg. 19855 (1995). The criteria of Diagnostic Code 7612 for disease or injury of the cervix and Diagnostic Code 7615 for disease, injury, or adhesions of the ovary provide that disability will be rated under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (Diagnostic Codes 7610 through 7615). These criteria provide that a noncompensable rating is warranted for symptoms that do not require continuous treatment. A 10 percent rating is warranted for symptoms that require continuous treatment and a 30 percent rating is appropriate where symptoms are not controlled by continuous treatment. 38 C.F.R. § 4.116, Diagnostic Codes 7612, 7615 (1999). During the pendency of the veteran's claim and appeal, the gynecological rating criteria were revised. The veteran is entitled to have the claim evaluated under both the new and old criteria, and have to criteria most favorable to the claim applied. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Therefore, both the old and new gynecological rating criteria will be considered. The report of a December 1994 VA gynecological examination notes that the veteran complained of constant lower quadrant pain and that she was most sensitive to any pressure such as tight clothing. The report notes the abdomen was soft with some mild trigger points bilaterally in the lower quadrant area. The report also notes the uterus was tender. The veteran presented testimony in December 1997 before the undersigned member of the Board. She testified that she had abdominal tenderness that limited her bending over. She testified that she didn't take medication for her condition. The gynecological rating criteria do not provide guidance as to what constitutes mild, moderate, and severe symptoms. However, the veteran's claims of abdominal pain are supported by the examination report that notes the uterus was tender and there were abdominal trigger points. Therefore, her complaints of pain due to pressure and difficulty bending over would indicate the veteran's disorder approximates no more than moderate disability. Under the provisions of Diagnostic Codes 7612 and 7615, moderate disability is a 10 percent disability rating. The symptoms shown in the medical evidence do not show severe symptoms that are the chronic residuals of infections, burns, chemicals, foreign bodies to warrant a higher rating. 38 C.F.R. § 4.116a, Diagnostic Codes 7612, 7615 (1994); 38 C.F.R. §§ 4.7, 4.20 (1999). As noted, the veteran's gynecological condition is a 10 percent disability rating under rating criteria in effect at the time she initiated her claim. A greater disability rating under the revised rating criteria requires that the veteran have symptoms that are not controlled by continuous treatment. However, the medical evidence does not show that the veteran receives treatment for her gynecological disability and she testified that she took no medication for it. Accordingly, the preponderance of the evidence is against her claim for an increased disability rating under the revised rating criteria. 38 C.F.R. § 4.116, Diagnostic Codes 7612, 7615 (1999). Based on the above, the evidence warrants a 10 percent disability rating for cervical dysplasia. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.116a, Diagnostic Codes 7612, 7615 (1994); 38 C.F.R. §§ 4.7, 4.20, 4.116, Diagnostic Codes 7612, 7615 (1999). Pes planus In an April 1995 rating decision, service connection for "pes planus and heel spurs, bilateral, left foot post operative" was granted with a noncompensable disability rating assigned. A June 1998 rating decision revised the description of the veteran's disability to "bilateral pes planus and heel spurs; p.o. [post operative] left foot" and continued the noncompensable rating. Under the criteria of Diagnostic Code 5276, entitled "Flatfoot, acquired," a noncompensable disability rating is warranted for mild pes planus with symptoms relieved by built up shoe or arch support and a 10 percent rating is warranted for unilateral or bilateral moderate symptoms with weight- bearing line over or medial to great toe, inward bowing of the tendo achillis, and pain on manipulation and use. A 20 percent rating is appropriate for unilateral symptoms and a 30 percent rating is appropriate for bilateral symptoms that are severe with 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 disability rating is warranted for unilateral symptoms and a 50 percent rating is warranted for bilateral symptoms that are pronounced with 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 (1999). Under the criteria of Diagnostic Code 5284, entitled "Foot injuries, other" a 10 percent disability rating is warranted for moderate residuals, a 20 percent rating is warranted for moderately severe residuals, and a 30 percent disability rating is warranted for severe residuals. With loss of use of the foot, a 40 percent disability rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (1999). The report of a November 1994 VA examination notes there was some flattening of the longitudinal arch of the feet. The report notes there were no abnormalities referable to the soles of the feet and there was no evidence of tenderness of the feet. The report indicates there was a small operative scar on the inner aspect of the left heel at the site of a podiatry procedure for "spurs." A November 1994 report of VA X-rays note the bilateral foot films were within normal limits. The report of a January 1998 VA examination notes that when the veteran was standing, she had flat feet and almost total loss of the longitudinal arch. The report notes that in the sitting position, the arch was present. The foot was flexible. There was no evidence of inflammation and no particular tenderness. The diagnosis was bilateral pes planus. The report of a January 1998 VA X-ray of the feet notes an impression of essentially negative study. The veteran presented testimony in December 1997 before the undersigned member of the Board. She testified that she could not do prolonged walking or standing, and standing for long periods of time hurt. She indicated that she had been given inserts for her shoes but her feet had changed. The November 1994 and the January 1998 VA examination reports show that there was flattening or loss of the longitudinal arch. However, there is no evidence of the weight bearing line being over or medial to the great toe. There is also no evidence of bowing of the tendo achillis. Both VA examination reports indicate there was no tenderness. Therefore, there is no pain on manipulation. The examination reports also do not show pain on use and the November 1994 VA examination report shows that her gait was not abnormal. The only disability manifestations of the veteran's pes planus were her subjective complaints of pain. While pain is a factor for moderate disability from pes planus, none of the other factors applicable to moderate pes planus are present. While the veteran testified that she received shoe inserts in service, there is no evidence that they are currently in use. Therefore, the veteran's pes planus more closely approximates mild pes planus. Mild pes planus is a noncompensable disability which is consistent with the currently assigned disability rating. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276 (1999). The description of the veteran's service connected foot disability includes heel spurs. The Schedule does not provide rating criteria for heel spurs. Therefore, the disability will rated under the criteria of Diagnostic Code 5284 since there are no other applicable rating criteria and the anatomical localization and the function affected are analogous. There is no evidence in the record of any disability related to heel spurs. Additionally, both VA X- rays do not show heel spurs. Only the November 1994 VA examination report notes a small post operative scar and there is no indication that this causes disability. Accordingly, the veteran's heel spurs cause at most mild foot disability. Since the requirements for a compensable rating under the criteria of Diagnostic Code 5284 are not met, the disability from heel spurs is noncompensable. 38 C.F.R. §§ 4.7, 4.20, 4.31, 4.71a, Diagnostic Code 5284 (1999). Based on the above, the preponderance of the evidence is against the veteran's claim for an increased disability rating for bilateral pes planus and heel spurs. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.14, 4.20, 4.31, 4.71a, Diagnostic Codes 5276, 5284 (1999). ORDER 1. A 10 percent disability rating for cervical dysplasia is granted, subject to the laws and regulations governing the disbursement of monetary benefits. 2. An increased disability rating for bilateral pes planus is denied. REMAND At the veteran's December 1997 hearing before the undersigned member of the Board, she provided post service medical records for consideration by the RO. Additionally, she underwent a VA examination. The RO considered this additional evidence, however, the June 1998 supplemental statement of the case only addressed the issue of an increased disability rating for the veteran's bilateral foot disability. It did not address the other pending service connection issues. Therefore, the case must be returned to the RO for issuance of a supplemental statement of the case that addresses the evidence received subsequent to the February 1997 supplemental statement of the case. 38 C.F.R. §§ 19.31, 19.37 (1999). Accordingly, this case is REMANDED for the following. The RO should provide the veteran with a supplemental statement of the case that addresses the evidence received since the February 1997 statement of the case was issued. The veteran and her representative should also be apprised of the applicable period of time within which to respond. The case should then be returned to the Board for further consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Additionally, the RO should conduct any additional evidentiary development that may be deemed necessary. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JACK W. BLASINGAME Member, Board of Veterans' Appeals