Citation Nr: 0201027 Decision Date: 01/31/02 Archive Date: 02/05/02 DOCKET NO. 98-10 116 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased (compensable) rating for the service-connected residuals of right foot stress injuries, including plantar fasciitis. 2. Entitlement to an increased (compensable) rating for the service-connected genital herpes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from January 1994 to May 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 1997 decision by the RO. FINDINGS OF FACT 1. The service-connected right foot disability manifested by plantar fasciitis currently is shown to be essentially asymptomatic; findings consistent with moderate foot injury are not demonstrated. 2. The service-connected genital herpes is shown to more nearly approximate a disability picture consistent with that of symptoms that require continuous treatment; a disability picture manifested by symptoms not controlled by continuous medication is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for the assignment of an increased (compensable) rating for the service-connected residuals of right foot stress injuries, including plantar fasciitis, are not met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 2001); 38 C.F.R. §§ 4.7, 4.31, 4.71a including Diagnostic Code 5284 (2001). 2. The criteria for the assignment of a 10 percent rating for the service-connected genital herpes are met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 2001); 38 C.F.R. § 4.7, 4.116 including Diagnostic Code 7610 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background A careful review of the service medical records shows that the veteran received treatment for genital herpes and plantar fasciitis of the right foot. During the course of outpatient treatment in mid-March 1995, the veteran gave a history of having had genital herpes, for which she had been prescribed medication, since February 1994. Reportedly, since that time, the veteran had experienced five outbreaks of genital herpes. According to the veteran, her most recent (i.e., sixth) outbreak had begun with itching, but no lesions. When further questioned, the veteran stated that all of her other recurrences had progressed to blister and papule formations. The clinical assessment was that of recurrent HSV, by history. On service separation examination in January 1996, the veteran gave a history of genital HSV and plantar fasciitis, for which she wore shoe inserts. A physical examination conducted at that time was essentially unremarkable, and no pertinent diagnoses were noted. A private treatment record dated in early March 1996 is to the effect that the veteran was home on leave and experiencing an outbreak of genital herpes. Apparently, the veteran was without her medication. Accordingly, additional "replacement" medication was prescribed. A pathology report from a private medical laboratory dated in May 1996 was positive for endocervical herpes simplex. In correspondence of mid-November 1996, the veteran's husband wrote that, on those occasions when the veteran was experiencing an "outbreak" of genital herpes, she became depressed and "didn't feel good." Additionally noted was that the veteran's "outbreaks" lasted anywhere from 3 to 4 weeks. The veteran's husband also commented that, due to the veteran's (right) foot problem, she experienced a hard time running or standing on her feet for long periods of time. Reportedly, on many occasions, the veteran complained of having foot pain. In correspondence of November 1996, the veteran's mother wrote that the "physical and mental devastation" associated with the veteran's genital herpes would "affect her for the rest of her life." According to the veteran's mother, she was continually on oral and external medication for the treatment of pain. The veteran's mother further commented that, as a result of the veteran's foot problems, running was "out of the question," and walking long distances "could be a problem due to the pain involved." In December 1996, a VA general medical examination was accomplished. The veteran's complaints consisted of a genital rash and right foot pain. According to the veteran, in January 1994, she had developed genital herpes, for which medication was prescribed, but which had to be discontinued during her pregnancy. According to the veteran, she had been on no specific medication since that time. When further questioned, the veteran stated that, since discontinuing medication, she had experienced "about five outbreaks" (of genital herpes), the most recent being two months earlier. However, she had been asymptomatic, without any rash, for the past two months. The veteran stated that, on those occasions when a rash occurred, it was accompanied by burning and itching. The veteran further commented that she was currently being followed by a private obstetrician, who had cultured the "rash" in question in June 1996. On physical examination, the veteran's genital area was entirely free of rash. Her skin was noted to be otherwise within normal limits. As to her right foot problems, the veteran noted that, in 1994, she had developed pain in the arch of her right foot, which was diagnosed at that time as plantar fasciitis. According to the veteran, she was given no specific medication or treatment at that time. When further questioned, the veteran reported that her pain was made worse by severe exercise of any kind, but that no specific treatment or medication had been necessary. An examination of the right foot revealed pain in the posterior aspect of the right arch, but with no evidence of arch tenderness, postural abnormality, joint limitation of motion, or tendon or muscle defect. The veteran was able to toe and heel walk, hop, squat, and bear weight on each leg without evidence of pain. According to the VA examiner, any "further statement for DeLuca purposes" would be of a "purely speculative nature." Radiographic studies of the veteran's right foot conducted as part of her examination showed no evidence of any fracture or degenerative change or of any spurs. The pertinent diagnoses were those of history of recurrent genital herpes, absent at present; and plantar fasciitis of the right foot, without x- ray evidence of disease. In a rating decision in January 1997, the RO granted service connection (and respective non-compensable evaluations) for (genital) herpes and plantar fasciitis, effective on May 23, 1996, the date following the veteran's discharge from service. During the course of private outpatient treatment in mid August 1997, the veteran's vagina showed no evidence of any lesions. The pertinent diagnosis was that of normal gynecologic examination with a history of herpes. The medications prescribed included those of Zovirax and Famvir. In correspondence of mid April-1998, the veteran's private physician stated that she (i.e., the veteran) continued to suffer from herpes which she had "caught while serving in the military service." Additionally noted was that the veteran would have to schedule Cesarean sections for childbirth. In May 1998, in conjunction with the veteran's Substantive Appeal, there were submitted various articles on herpes and plantar fasciitis. In September 2000, there was noted a clinical impression of a normal gynecologic examination, in conjunction with a history of herpes. During the months of November and December 2000, an additional VA medical examination was accomplished. At the time of examination, the veteran stated that, in January 1994, she had received a diagnosis of genital herpes, with recurrent outbreaks. According to the veteran, she experienced a "flare" on approximately a monthly basis. When further questioned, the veteran stated that she had experienced no abnormal bleeding, vaginal discharge, fever, pain, bowel or bladder incontinence, or frequent urinary tract infections. Reportedly, the veteran had been treated on several occasions with both oral medication and topical creams. When questioned, the veteran stated that her most recent "flare- up" had occurred approximately one week earlier. According to the veteran, she was receiving medication (Famvir) for this "flare-up." Regarding her plantar fasciitis, the veteran stated that she had first received a diagnosis of that disability in August 1994. According to the veteran, her plantar fasciitis initially "flared" during her military exercise, "with marching and running." The veteran was therefore given light-duty, but continued to experience "flares." When questioned, the veteran stated that, since 1996, she had experienced no real "flare-ups." However, she had greatly curtailed her exercise and lifestyle, so as not to perform activities which would result in "flares." According to the veteran, on those occasions when she would have a "flare-up," she was very uncomfortable, at least until she was able to rest "for a period of time." When questioned, the veteran stated that, during "flare-ups," she experienced difficulty walking, as well as pain while driving, and an inability to climb stairs. On examination, the veteran's uterus was posterior, with no evidence of any masses, and did not appear to be prolapsed. There was no evidence of adhesions, or of any rectovaginal fistula. There was some evidence of a recent vesicular lesion over the left labia, oval in shape, and approximately 1 by 1 cm., indicative of genital herpes. A musculoskeletal examination showed no sign of any abnormal weight-bearing, to include callosities or "break down." The veteran did, however, exhibit an unusual shoe wear pattern, in that the outside of her right shoe wore out faster than other parts of the shoe. According to the veteran, she did not utilize any devices, such as braces, corrective shoes, crutches, or canes. There was no evidence of flat feet, nor were there any signs of painful motion, edema, instability, weakness or tenderness. At the time of evaluation, the veteran showed no vascular changes or deformities of the feet, such as hammertoe, high arch, or claw foot. Hallux valgus was absent, and the veteran did not require any corrective shoes. The posture of the veteran was within normal limits, as was her gait. The veteran stated that she had experienced no flare-ups for several years "due to curtailing her activity." However, it was unknown whether the veteran's "condition" would reoccur were she to return to exercising on a regular basis. Noted at the time of examination was that the veteran's medical records had been received and reviewed. Those records showed continued herpes outbreaks during the veteran's military service, with Cesarean sections necessary for delivery. A note from 1994 indicated a history of genital herpes, for which the veteran had been placed on Acyclovir. A note from 1995 mentioned recurrent herpes, with the veteran using Zovirax cream. Further records showed an outbreak in November 1995 during pregnancy, at which time the veteran was unable to take oral medication, with the result that she was placed only on Zovirax cream. A note from 1994 showed plantar fasciitis persisting following rest, ice, and nonsteroidal anti-inflammatory medication. A bone scan conducted at that time was negative, and the veteran was placed on light-duty. A note from July 1995 once again indicated plantar fasciitis, with medication and limited activity prescribed, in addition to "stretching exercises." The radiographic studies of the veteran's feet conducted in conjunction with her examination showed negative joint spaces, alignment, articular surfaces, and soft tissues, with no evidence of fracture, malalignment, or foreign bodies in either the left or right foot. The pertinent diagnoses were those of genital herpes, with evidence of a recent outbreak, and the likelihood that the veteran would continue to experience lifetime occurrences; and plantar fasciitis, currently asymptomatic. According to the veteran, she had suffered no recent problems, but had adopted a "greatly altered" lifestyle, not exercising as she once did. Analysis The veteran in this case seeks compensable ratings for her service-connected plantar fasciitis of the right foot and for genital herpes. In pertinent part, it is argued that current manifestations of those disabilities are more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the assigned schedular evaluations. Specifically, in the opinion of the veteran, the current manifestations are sufficient to warrant the assignment of a 30 percent rating for genital herpes and a 10 percent rating for plantar fasciitis. In that regard, disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155 (West 1991 & Supp. 2001); 38 C.F.R., Part 4 (2001). In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 U.S.C.A. §§ 4.1, 4.2 (2001). However, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Though a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). In the case at hand, service connection and the initial non- compensable ratings for the veteran's service-connected plantar fasciitis of the right foot and genital herpes were made effective on May 23, 1996, the date following the veteran's discharge from service. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In Fenderson, the United States Court of Appeals for Veteran's Claims also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. In the present case, a review the record discloses that, while in service, the veteran received treatment both for genital herpes, and for plantar fasciitis of the right foot. However, as of the time of the veteran's separation from service in January 1996, the examination was essentially unremarkable. While on VA examination in December 1996, the veteran gave a history of having had five "outbreaks" of genital herpes, she additionally noted that she had been "asymptomatic, without rash" for the previous two months. The pertinent diagnosis was that of history of recurrent genital herpes, "absent at present." Somewhat later, during the course of private treatment in August 1997, and once again in September 2000, there was noted only a "history" of genital herpes, in conjunction with an essentially normal gynecological examination. Pursuant to applicable law and regulation, the veteran's service-connected genital herpes is rated on the basis of disease or injury of the vulva, including vulvovaginitis, with a noncompensable evaluation warranted where symptoms do not require continuous treatment. An increased, which is to say, 10 percent evaluation is in order where symptoms require continuous treatment. A 30 percent evaluation is warranted where symptoms are not controlled by such continuous treatment. 38 C.F.R. 4.116 including Diagnostic Code 7610 (2001). The Board notes significantly that, as of the time of a recent VA examination in November 2000, there was evidence of a vesicular lesion over the veteran's left labia, indicative of an recent "outbreak" of genital herpes. It is not shown that the veteran has continuously used medication in treatment of her service-connected genital herpes. However, given her mother's recent statement that she was "continually on oral and external medication," the weight of the evidence is to the effect that the veteran must use medication to keep from experiencing an active "outbreak" of genital herpes. It is not demonstrated by the evidence that that her symptoms are not controlled by the continuous use of medication. Thus, given the recurrent nature of the veteran's symptoms, the Board finds that the service-connected disability picture more nearly approximates that warranting the assignment of a 10 percent evaluation. Turning to the issue of an increased rating for the service- connected right foot injury residuals manifested by plantar fasciitis, the Board notes that, while on VA examination in December 1996, there was some pain present in the posterior aspect of the veteran's right arch, that same examination revealed no evidence of arch tenderness, postural abnormality, joint limitation of motion or related tendon or muscle defect. The veteran was able to both toe and heel walk, as well as hop, squat and bear weight on each leg without pain. While on more recent examination in 2000, the veteran stated that she had greatly "curtailed" her activities, it was noted that, since 1996, she had experienced no real "flare-ups" of plantar fascia pain. The examination revealed no signs of painful motion or related edema, instability, weakness or tenderness. In the opinion of the examiner, the veteran's plantar fasciitis was "currently asymptomatic." In order to warrant an increased, which is to say, 10 percent rating, there must be demonstrated the presence of moderate foot injury. 38 C.F.R. 4.71a including Diagnostic Code 5284 (2001). However, as is clear from the evidence, the veteran currently does not manifest findings consistent with moderate disability. In point of fact, her service-connected plantar fasciitis has most recently been described as "asymptomatic," with no evidence of functional loss due to pain, on use or due to flare-ups. See 38 C.F.R. §§ 4.40, 4.59 (2001); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Under such circumstances, the Board finds that a compensable rating is not for application for the service-connected foot disability. In reaching this determination, the Board has given due consideration to the provisions of the recently-passed Veterans Claims Assistance Act of 2000 [Public Law No. 106- 475, 114 Stat. 2096 (2000)], as those provisions impact upon the adjudication of the veteran's current claims. However, following a thorough review of the record, the Board is satisfied that the VA has met its "duty to assist" the veteran in the development of all facts pertinent to her claims. This is to say that the VA has made all reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate her claims, including the scheduling of a VA examination or examinations. Under such circumstances, no further assistance to the veteran is required in order to comply with the VA's duty to assist her mandated by the aforementioned legislation. ORDER An increased (compensable) rating for the service-connected residuals of right foot stress injuries, including plantar fasciitis, is denied. An increased rating of 10 percent for the service-connected genital herpes is granted, subject to the regulations controlling disbursement of VA monetary benefits. Stephen L. Wilkins Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.