Citation Nr: 0308924 Decision Date: 05/12/03 Archive Date: 05/20/03 DOCKET NO. 97-33 499A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial compensable evaluation for a ganglion cyst of the right (minor) wrist. 2. Entitlement to an initial evaluation greater than 10 percent for plantar fasciitis of the left foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh INTRODUCTION The veteran served on active duty from May 1963 to December 1966 and from August 1991 to November 1991. Additionally, he served in the Army National Guard of South Carolina from August 1977 to August 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, granted the veteran service connection for a ganglion cyst of the right (minor) wrist (effective from October 7, 1996, the date the original claim for this disability was filed) and plantar fasciitis of the left foot (effective from June 10, 1996, the date the original claim for this disability was filed). Initially, noncompensable evaluations were assigned to each disability. In the course of this appeal a 10 percent rating was assigned for the plantar fasciitis, effective from June 10, 1996. As this is not the maximum rating provided by the applicable schedule the issue remains in appellate status. See AB, Appellant, v. Brown, 6 Vet. App. 35 (1993). In December 1999 the Board remanded the case to the RO for additional evidentiary and procedural development. Thereafter, in a February 2002 rating decision/Supplemental Statement of the Case, the RO confirmed the noncompensable rating assigned to the ganglion cyst of the right wrist and the 10 percent rating assigned to plantar fasciitis of the left foot. The veteran now continues his appeal. We note that this case is based on an appeal of a rating decision which had granted the veteran's original claims for service connection for a ganglion cyst of the right wrist and plantar fasciitis of the left foot. Consideration must therefore be given regarding whether the case warrants the assignment of separate ratings for each service-connected disability for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In the present case, we must evaluate the evidence pertaining to the ganglion cyst of the right wrist for the period from October 7, 1996 to the present and the pertinent evidence for plantar fasciitis of the left foot for the period from June 10, 1996 to the present. FINDINGS OF FACT 1. For the period from October 7, 1996 to the present time, the veteran's service-connected ganglion cyst of his right wrist affects his minor upper extremity and is manifested by pain only on extreme dorsiflexion beyond 70 degrees, with no functional loss due to pain, incoordination, weakness, or fatigability. 2. For the period from June 10, 1996 to July 25, 1999, the veteran's service-connected plantar fasciitis of the left foot was manifested by symptomatology analogous to moderately disabling unilateral pes planus. 3. For the period commencing on July 26, 1999, the veteran's service-connected plantar fasciitis of the left foot was manifested by symptomatology analogous to severely disabling unilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for a ganglion cyst of the right (minor) wrist for the period from October 7, 1996 to the present have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5015-5215 (2002). 2. The criteria for an initial evaluation greater than 10 percent for plantar fasciitis of the left foot for the period from June 10, 1996 to July 25, 1999 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2002). 3. The criteria for 20 percent evaluation, and no higher, for plantar fasciitis of the left foot for the period commencing on July 26, 1999 have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veterans Claims Assistance Act of 2000, implemented in 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001), now requires VA to assist a claimant in developing all facts pertinent to a claim for VA benefits, including a medical opinion and notice to the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the VA Secretary, that is necessary to substantiate the claim. VA has issued regulations to implement the Veterans Claims Assistance Act of 2000. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002)). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The provisions of the VCAA and the implementing regulations are accordingly applicable. See Holliday v. Principi, 14 Vet. App. 280 (2001) (the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). We note that the RO has provided the veteran with express notice of the provisions of the VCAA in correspondence dated in September 2002, in which it provided the veteran with an explanation of how VA would assist him in obtaining necessary information and evidence. The veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of the remand which occurred during this appeal in December 1999. He has also been provided with VA examinations which address the increased rating claims on appeal. Finally, he has not identified any additional, relevant evidence that has not otherwise been requested or obtained. The veteran has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him. (See Quartuccio v. Principi, 16 Vet. App. 183 (2002).) As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating the claims. For these reasons, further development is not necessary to meet the requirements of 38 U.S.C.A. §§ 5103 and 5103A. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 1991 & Supp. 2001). The standard of review for cases before the Board are as follows: when there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 4.3 (2002). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a (claimant) need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. At 54. (a.) Entitlement to an initial compensable evaluation for a ganglion cyst of the right (minor) wrist. The veteran's service medical records indicate that the veteran was treated for a ganglion cyst of his right wrist which occurred as a result of an accidental fall onto the wrist during one of his periods of active duty. He reported in his medical history that he was left-handed. On October 7, 1996 the veteran submitted his original claim for service connection for a ganglion cyst of his right wrist. He was granted service connection for this disability in a February 1997 rating decision. Evidence pertaining to the veteran's right wrist consists of oral testimony presented at an RO hearing, VA outpatient medical records and VA examination reports. The report of a VA examination in June 1997 shows that his ganglion cyst had been surgically removed. However, he still complained of experiencing right wrist pain with activity. Physical examination revealed a well-healed surgical scar measuring approximately 1.5 centimeters long. He displayed normal range of motion with 70 degrees of dorsiflexion and 80 degrees of palmar flexion although the examiner remarked that the veteran needed encouragement to flex his wrist. He reported pain on carpal metacarpal joint grind but the right had was otherwise deemed by the examiner to be unremarkable. X-rays of his right wrist revealed the presence of some carpal metacarpal arthritis of his thumb with narrowed joint space. Mineralization and articulation of the bones were within normal limits and there was no soft tissue swelling. The pertinent diagnosis was mild carpal metacarpal joint arthritis of the right thumb. At a September 1998 RO hearing the veteran testified, in pertinent part, that he experienced pain in his right wrist when he dorsiflexed it all the way back. An outpatient treatment report dated October 1998 shows that the veteran presented with complaints of right wrist pain. The report of a July 2000 VA examination shows that the veteran complained of right wrist pain related to his service-connected ganglion cyst. He denied having any fatigue, weakness or incoordination with the use of the wrist other than somewhat painful motion with extreme flexion. He described the pain on flexion as being of a sharp, stabbing and radiating type, but denied experiencing any tingling sensations or numbness in his digits. When he weather changed he would feel a dull aching pain in his wrist. Physical examination shows that the scar on his right wrist, residual of his prior surgical removal of the ganglion cyst, was well-healed with no tenderness to palpation. There was no effusion, erythema or warmth associated with the right wrist joint. Although he experienced severe pain over his wrist on extreme dorsiflexion greater than 70 degrees, the examiner deemed him to have full range of motion on dorsiflexion to 70 degrees and plantar flexion from zero to 80 degrees without limitation, pain or weakness or laxity. The veteran's right wrist had ulnar deviation from zero to 40 degrees and radial deviation from zero to 20 degrees. X-rays of the right wrist noted minimal degenerative disease in the distal interphalangeal joint of the thumb with no other abnormality observed. The assessment was right wrist pain secondary to an accidental fall during service, status post surgical removal, with pain only on extreme dorsiflexion of his right wrist greater than 70 degrees but otherwise with intact range of motion with no weakness or fatigability. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2002). Separate diagnostic codes identify the various disabilities. 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 (2002). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2002). A thorough evaluation of a musculoskeletal or orthopedic disability for rating purposes requires consideration of any functional loss due to pain, incoordination, weakness, or fatigability. 38 C.F.R. §§ 4.40, 4.45 (2002); DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, we note that the physician who conducted the July 2000 VA examination adequately discussed the question of whether or not there was any functional loss associated with the service-connected right wrist disability. The veteran is left-handed. Therefore, his service-connected ganglion cyst of the right wrist is rated under the criteria for limitation of motion of the wrist of the minor upper extremity which is contained in 38 C.F.R. § 4.71a, Diagnostic Code 5215. The schedule provides for the assignment of a 10 percent evaluation, and no higher, when dorsiflexion is less than 15 degrees. A 10 percent evaluation may also be assigned when palmer flexion is limited in line with the forearm. The evidence in this case clearly demonstrates that the veteran enjoy full range of motion of his right wrist on dorsiflexion, palmar flexion and ulnar and radial deviation without pain except on the extremes of dorsiflexion beyond 70 degrees. There is no functional loss due to pain, incoordination, weakness, or fatigability associated with this disability. Therefore, Diagnostic Code 5215 does not provide a basis for allowing the veteran's claim for a compensable rating for his right wrist disability. Consideration has been made regarding the possibility of rating the veteran's right wrist disability under the schedule for arthritis contained in 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2002), which provides for a 10 percent evaluation when there is radiographic evidence arthritis of a major joint when there is pain on motion but no compensable degree of limitation of motion. However, there is no X-ray evidence of arthritis affecting the veteran's wrist. The X- rays films taken during VA examinations in June 1997 and July 2000 show only the presence of mild arthritic changes affecting the distal joint of the veteran's right thumb which are not associated with his service-connected wrist disability. Therefore, in light of the foregoing discussion, we conclude that the veteran's appeal for a compensable evaluation for a ganglion cyst of the right wrist must be denied. Because the evidence in this case is not approximately balanced with respect to the merits of this issue, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lastly, we find that an assignment of a staged rating for the period from October 7, 1996 to the present is not warranted with regard to this issue on appeal. The noncompensable evaluation for the veteran's ganglion cyst of his right wrist is based on the most severe disability picture presented by the medical evidence associated with the record, which encompassed the effective date of the award for service connection for the disability to the present time. (b.) Entitlement to an initial evaluation greater than 10 percent for plantar fasciitis of the left foot. The veteran's service medical records show onset of a chronic left foot disability due to plantar fasciitis following a foot injury during one of his periods of military service. On June 10, 1996 the veteran submitted his original claim for service connection for plantar fasciitis of the left foot. He was granted service connection for this disability in a February 1997 rating decision. Evidence pertaining to the veteran's plantar fasciitis of the left foot consists of oral testimony presented at an RO hearing, VA and private outpatient medical records and VA examination reports. In a July 1993 statement the veteran's private physician, James A. McQuown, M.D., reported that he had treated the veteran for plantar fasciitis of his left foot. Dr. McQuown's statement shows that the veteran used an orthotic insert in his shoe to help relieve some of his left foot symptoms. Dr. McQuown's opinion was that the veteran's plantar fasciitis prevented the veteran from participating in protracted extensive physical exercises including long marches and running. VA examination in June 1997 shows that the veteran complained of left foot pain with prolonged activity, especially in the morning. Physical examination of his left foot revealed a supple subtalar joint and forefoot with tenderness on the plantar fascia and positive bowstring test. The diagnosis was plantar fasciitis of the left foot. VA radiographic films of the veteran's left foot which were obtained in November 1997 show that the veteran's soft tissues were unremarkable and that there were bone spurs of his superior and inferior calcaneus with reasonably well- maintained joint spaces. The X-ray impression was inferior and superior calcaneal spur. At a September 1998 RO hearing the veteran testified, in pertinent part, that he experienced a burning pain in an area between the toes and heel of his left foot which he described as being 8 1/2 on a scale of 1 to 10, with 10 being the highest level of pain. He treated his symptoms with Tylenol or aspirin at the instructions of his physician, Dr. McQuown. The veteran reported that he experienced left foot pain and discomfort when standing on hard surfaces and also left foot numbness when sitting. He wore a heel cup and customized orthotic shoe inserts for his plantar fasciitis. He was unable to walk for long distances secondary to left foot pain and sometimes had to sit down and elevate his left foot to reduce his symptoms. VA outpatient treatment records dated from 1997 to 1999 show that the veteran received treatment several times per year for complaints relating to left foot pain due to plantar fasciitis. The records indicate that he sometimes needed to have his orthotic inserts upgraded or replaced and that he only received partial relief from his symptoms through use of these prosthetics. The report of a private podiatric evaluation dated July 26, 1999 shows that James S. Zaremba, D.P.M., treated the veteran for complaints of a burning pain in his left arch which also occurred in the morning. He indicated that resting his left foot aided in reducing some of his symptoms. Physical examination shows that he displayed point tenderness of the medial tuberosity of his left calcaneus and medial band of his left plantar fascia. Palpation of the ligament presented signs of a tight ligament that was tender to manual pressure. The assessment was continuing plantar myofasciitis of the left foot with heel spur syndrome. He was prescribed orthotics, medications and special exercises and also given injections of pain reliever and corticosteroid at the medial heel of the plantar fascia and inferior heel of the left foot. The report of a July 2000 VA examination shows that the veteran complained of having a constant burning sensation in the arch of his left foot with pain after standing for long periods. Walking a certain distance would bring about onset of a tingling sensation in the area of his left arch. Sometimes flexing his left foot and turning his left toes up caused him to feel a dull aching pain in his left arch with was partially relieving. X-rays revealed degenerative enthesopathy at the attachment of the achilles tendon and plantar aponeurosis posteriorly and inferiorly. Enthesitis and edema were evident at the attachment of the achilles' tendon. As previously stated, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2002). Separate diagnostic codes identify the various disabilities. 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 (2002). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2002). The veteran's service-connected plantar fasciitis of his left foot is currently evaluated as 10 percent disabling. This disability is rated as analogous to flat feet which is rated under the criteria contained in 38 C.F.R. § 4.71a, Diagnostic Code 5276. This Code provides for a 10 percent rating for moderate flat feet, bilateral or unilateral, when the weight- bearing line of the foot is over and medial to the great toe, when there is inward bowing of the tendo achillis, or when there is pain on manipulation and use of the feet. A 20 percent rating is assigned for unilateral severe pes planus, 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 rating is assigned for unilateral pronounced pes planus 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. Here, a thorough review of the veteran's claims file reveals objective evidence of symptomatology contemplated in the criteria for a 20 percent evaluation for unilateral severe flat foot. Although there is no objective evidence of marked deformity (pronation, abduction, etc.), indication of swelling on use, or characteristic callosities, there is evidence of accentuated pain on manipulation and use which is indicated in the veteran's oral testimony and, objectively, in the private podiatric treatment report of Dr. Zaremba which shows that on July 26, 1999, the veteran displayed point tenderness of the medial tuberosity of his left calcaneus and medial band of his left plantar fascia and that his symptoms were severe enough to warrant having pain relievers and corticosteroids injected directly at the site of his plantar fascia and inferior heel of his left foot. Resolving all doubt in favor of the veteran, we find that the constellation of symptomatology associated with his plantar fasciitis of his left foot more closely approximates the criteria for severe unilateral pes planus. (See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).) Therefore, we conclude that the symptoms manifested by the veteran's service- connected unilateral pes planus more nearly approach those of the higher, 20 percent rating, under Diagnostic Code 5276 for severe unilateral pes planus. An increased rating, to 20 percent, will be granted effective on July 26, 1999, based on the date in which the veteran was treated for his severe plantar fasciitis of his left foot by Dr. Zaremba. See Fenderson v. West, 12 Vet. App. 119 (1999). Although we have granted the veteran a 20 percent evaluation for plantar fasciitis of the left foot, we do not find that the assignment of a 30 percent rating is warranted at the present time as the evidence does not demonstrate that the disability is currently manifested by symptoms which more closely approximate marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation that is not improved by orthopedic shoes or appliances. We have considered other provisions which might provide for a higher evaluation with respect to the issue on appeal, including 38 C.F.R. § 4.40, 4.45, as they relate to pain and any resulting functional impairment due to pain (including during flare-ups, as discussed in DeLuca v. Brown, supra). However, Diagnostic Code 5276, acquired flatfoot, 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). ORDER The claim for an initial compensable evaluation for a ganglion cyst of the right (minor) wrist is denied. The claim for an initial evaluation greater than 10 percent for plantar fasciitis of the left foot for the period from June 10, 1996 to July 25, 1999 is denied. An increased evaluation, to 20 percent and no higher, for plantar fasciitis of the left foot commencing on July 26, 1999 is granted. ____________________________________________ G. H. SHUFELT Veterans Law Judge, 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.