Citation Nr: 0332944 Decision Date: 11/25/03 Archive Date: 12/10/03 DOCKET NO. 98-07 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for chronic laryngitis. 2. Entitlement to service connection for a right hip disability. 3. Entitlement to service connection for hemorrhoids. 4. Entitlement to service connection for a bilateral knee disability. 5. Entitlement to an evaluation in excess of 10 percent for residuals of right elbow surgery. 6. Entitlement to an evaluation in excess of 10 percent for plantar fasciitis, left foot. 7. Entitlement to an evaluation in excess of 10 percent for plantar fasciitis, right foot. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. M. Panarella, Counsel INTRODUCTION The veteran served on active duty from November 1974 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 1998 and May 1999 rating decisions of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). The Board observes that the RO granted service connection for migraines and dermatographism, recurrent urticaria, in an April 2000 hearing officer decision. Subsequent to that decision, the veteran submitted medical evidence relevant to her migraines and skin disorder. However, it is unclear whether the veteran intended this evidence to serve as a Notice of Disagreement to the initial disability evaluations assigned in the April 2000 rating decision. Therefore, these issues are referred to the RO for further clarification. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The medical evidence of record does not establish the presence of current laryngitis, hoarseness, or vocal cord polyps related to the veteran's period of active service. 3. The medical evidence of record does not establish the presence of a current right hip disability related to the veteran's period of active service. 4. The medical evidence of record establishes the presence of hemorrhoids since the veteran's period of active service. 5. The medical evidence of record does not establish the presence of a current bilateral knee disability related to the veteran's period of active service. 6. The veteran's residuals of right elbow surgery are manifested by pain and weakness upon prolonged repetitive use. 7. The veteran's plantar fasciitis, left foot, is characterized by moderately severe impairment. 8. The veteran's plantar fasciitis, right foot, is characterized by moderately severe impairment. CONCLUSIONS OF LAW 1. Chronic laryngitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 3.303, 3.304, 3.307, 3.309 (2003). 2. A right hip disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 3.303, 3.304, 3.307, 3.309 (2003). 3. Hemorrhoids were incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 3.303, 3.304, 3.307, 3.309 (2003). 4. A bilateral knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 3.303, 3.304, 3.307, 3.309 (2003). 5. The criteria for an evaluation in excess of 10 percent for residuals of right elbow surgery have not been met. 38 U.S.C.A. § 1155, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.1-4.14, 4.40-4.46, 4.73, Diagnostic Code 5308 (2003). 6. The criteria for an evaluation of 20 percent for plantar fasciitis, left foot, have been met. 38 U.S.C.A. § 1155, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5284 (2003). 7. The criteria for an evaluation of 20 percent for plantar fasciitis, right foot, have been met. 38 U.S.C.A. § 1155, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5284 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) became law. The VCAA applies to all pending claims for VA benefits, and redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant of the information and evidence necessary to substantiate a claim for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159 (2002). In this case, VA's duties have been fulfilled to the extent possible. First, VA must notify the veteran of evidence and information necessary to substantiate her claim and inform her whether she or VA bears the burden of producing or obtaining that information or evidence. See 38 U.S.C. § 5103A (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the present case, the veteran was informed of the evidence needed to substantiate her claims by means of several documents including the March 1998 and May 1999 rating decisions, the April 2000 Hearing Officer decision, the April 1998 and December 1998 Statements of the Case, and the January 1998, December 1998, May 1999, April 2000, and May 2003 Supplemental Statements of the Case. The veteran was specifically advised of the provisions of the VCAA in letters from the RO dated May 2001 and July 2003. In these documents, the veteran was informed of the basis for the denial of her claims, of the type of evidence that she needed to submit to substantiate her claims, and of all regulations pertinent to her claims. She was also informed as to which evidence and information was her responsibility, and which evidence would be obtained by the RO. Therefore, the Board finds that these various documents and letters provided to the veteran satisfy the notice requirements of 38 U.S.C.A. § 5103 of the new statute. In a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02- 7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30 day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.A. § 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The Court found that the 30 day period provided in 38 C.F.R. § 3.159(b)(1) to respond to a VCAA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one year period provided for response. The Board concedes that the May 2001 letter provided to the veteran by the RO contained a time limit that is now impermissible under the aforementioned court precedent. However, the Board finds this error to be harmless because the RO continued to request and to obtain evidence beyond the pertinent date. In fact, the May 2003 Supplemental Statement of the Case and the July 2003 letter did not contain the impermissible time limit and the veteran was informed that she may continue to submit evidence. Therefore, the Board finds that the veteran was cognizant of her right to submit evidence and that she was not prejudiced by the language contained in the May 2001 letter. VA must also make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). Here, the RO considered service medical, military hospital, VA, and private medical records. The RO also afforded the veteran several VA medical examinations and the veteran presented testimony at a personal hearing. Accordingly, the Board finds that the RO has fulfilled its duty to assist the veteran and that no further action is necessary to comply with the VCAA. I. Service Connection According to the law, service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2003). Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The mere fact of an in-service injury is not enough; there must be chronic disability resulting from that injury. If there is no evidence of a chronic condition during service, or an applicable presumption period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b) (2003). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2003). In addition, if certain diseases, such as arthritis, become manifest to a compensable degree within one year after the veteran's military service ended, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309 (2003). A. Chronic Laryngitis The service medical records show that the veteran had hoarseness and laryngitis in May 1983, and April and May 1985. An ENT consultation performed in February 1986 suggested the presence of vocal cord nodules, and the veteran was referred for speech therapy in August 1986. In September 1986, the veteran presented with chronic laryngitis and hoarseness secondary to vocal cord misuse. She had a history of being a drill sergeant for three years. The veteran thereafter underwent speech therapy for several months. The retirement examination of October 1996 contained no relevant complaints or objective findings. At an October 1997 VA examination, the veteran denied any problems with vocal cord nodules. The examination report contained no relevant findings, and physical examination of the head, neck, mouth, and throat was normal. At her personal hearing before the RO in September 1999, the veteran testified that her laryngitis began when she served as a drill instructor. She continued to become hoarse when she had to talk louder or longer than normal. She had received no medical treatment following discharge from service. In a report submitted in May 2000, Marianne Klemm, D.O., wrote that she had been the veteran's primary care physician since the veteran's discharge from the Army. The veteran presented with a history of nodules on the vocal cords due to her assignment as a drill instructor. Dr. Klemm stated that the nodules should be monitored in order to prevent any cancerous changes but that there had been no perceptible change in the quality of the veteran's voice. An attached June 1998 treatment record shows that the veteran reported a history of vocal cord polyps with no current problems with her voice. That entry, as well as a February 1999 entry, revealed a normal examination of the head, neck, mouth, and throat. At an April 2003 VA examination, the veteran reported a history of hoarseness and vocal cord nodules. She complained of worsening hoarseness with extensive talking and sneezing. She smoked one-half pack of cigarettes per day. She also complained of stuffiness of her nose and indigestion and heartburn. Upon examination, moderate acid reflux disease was discovered. The vocal cords had irritation from the reflux but no nodules or other abnormality were present. The examiner commented that there appeared to be no disease process other than possible allergic rhinitis and acid reflux. Based upon the above facts, the Board finds that the preponderance of the evidence is against service connection for chronic laryngitis. While the service medical records show episodes of hoarseness and laryngitis, the medical evidence fails to establish the presence of a chronic or current disability. The service medical records subsequent to 1987, including the retirement examination, contain no complaints or findings of hoarseness or laryngitis. Likewise, the post-service medical records refer to a history of vocal cord nodules but contain no treatment or diagnosis of hoarseness or laryngitis. Notably, the recent VA examination found no vocal cord nodules. Rather, the irritation of the vocal cords was determined to be caused by acid reflux. The Board notes that the veteran has been awarded service connection for gastroesophageal reflux disease. Accordingly, service connection is denied. B. Right Hip Disability As an initial matter, the Board notes that the RO granted service connection for left hip bursitis in a May 2003 rating decision. Therefore, the only remaining issue before the Board is whether service connection for a right hip disability is also warranted. The service medical records show that the veteran complained of bilateral hip pain in January 1983. She had no history of trauma. Tenderness of the bilateral trochanteric bursa was present but the x-ray report was normal. The veteran was assessed with overuse syndrome and continued to have tenderness over the trochanteric bursa the following month. Subsequent treatment concerned only the left hip. At the October 1996 retirement examination, the veteran reported multiple joint pain, including the hips. No objective findings were made and the veteran was diagnosed with diffuse arthralgias. At an October 1997 VA examination, the veteran's hips exhibited a full range of motion, with no crepitus or muscle wasting. She was assessed with a normal examination of the hips. At her personal hearing before the RO in September 1999, the veteran testified that her hip pain began in approximately 1983; however she had not been diagnosed with a hip pathology and received no current treatment. Treatment records from Dr. Klemm show that the veteran complained of back, hip, and knee pain in November 1999. There was no pain on palpation of either hip joint and range of motion was essentially normal. The veteran was assessed with low back pain. The following month, the veteran presented for a follow-up of her back and hip pain and she was assessed with sciatica. In March 2000, the veteran reported back pain radiating into her hips and was again assessed with sciatica. At an April 2003 VA examination, the veteran complained of hip pain after prolonged standing and certain activities. Upon examination, tenderness of the left hip was observed. The veteran could flex the right hip to 120 degrees with some complaints of pain. The examiner commented that there was no documentation of right hip problems during active service. The veteran was diagnosed with a normal right hip. After a review of the above facts, the Board finds that a preponderance of the evidence is against service connection for a right hip disability. The Board acknowledges that the veteran was seen for right hip pain during active service in 1983. However, the x-ray report was normal and she was assessed with overuse syndrome at that time. The remainder of the service medical records contains no findings of a right hip disability, indicating that the earlier condition was acute. The veteran has continued to complain of multiple joint pain, including the right hip. However, the record contains no medical evidence of a current right hip disability. Dr. Klemm attributed the veteran's hip pain to her low back disability, and no physician has identified a separate right hip disability. In the absence of a current disability related to the period of active duty, service connection must be denied. C. Hemorrhoids The service medical records show that the veteran complained of exacerbation of her hemorrhoids in March 1990. The physician found no internal hemorrhoids, but noted some external tags. The veteran was assessed with pruritis, rectocele, and cytocele. The veteran's retirement examination of October 1996 contained no relevant complaints or objective findings. At a November 1997 VA examination, the veteran complained of external hemorrhoids. Objectively, several skin tags and two external hemorrhoids were present. At her personal hearing before the RO in September 1999, the veteran testified that she was diagnosed with hemorrhoids in 1990 and that she continued to use nonprescription medication. Treatment records of Dr. Klemm show that the veteran reported a history of hemorrhoids in November 1999. At an April 2003 VA examination, the veteran reported no current symptoms due to her hemorrhoids. She chose to not undergo the rectal examination. Granting the veteran the benefit of the doubt, the Board finds that service connection for hemorrhoids is warranted based upon the above evidence. The veteran apparently had external hemorrhoids in service and the November 1997 VA examination documented the presence of hemorrhoids. The Board finds the veteran's testimony concerning the continuity of the hemorrhoids to be credible. Accordingly, service connection is granted. D. Bilateral Knees The service medical records show that the veteran had subluxing patella in September 1978. That same month, the veteran reported pain of the bilateral patella for the past 12 to 24 months. She was assessed with subluxing patella and chondromalacia. In January 1983, the veteran complained of bilateral knee pain. The physical examination was negative except for crepitus and percussion. The provisional diagnosis was bilateral chondromalacia, with a subsequent impression of overuse syndrome. In August 1984, the veteran complained of right knee pain and was assessed with muscle strain. In February 1993, the veteran complained of multiple joint pain, including the left knee. In another entry, the veteran complained of bilateral hip and knee pain. Slight swelling of the knees was observed and the veteran was assessed with questionable muscle strain. At the retirement examination of October 1996, the veteran reported multiple joint pain, including the knees. No objective findings were made and the veteran was diagnosed with diffuse arthralgias. At an October 1997 VA examination, the veteran's knees had full range of motion, with no deformity, swelling, instability, or laxity. The left knee exhibited slight crepitus with range of motion. The veteran was assessed with normal examination of the knees. At her personal hearing before the RO in September 1999, the veteran testified that her knee pain began in approximately 1983; however she had not been diagnosed with a knee pathology and received no current treatment. Records from Dr. Klemm show that the veteran complained of knee pain in November 1999. The knees had no redness, swelling, or effusion, and had an essentially full range of motion. The April 2003 VA examination contains no specific complaints or diagnoses regarding the knees; however, examination of the lower extremities was normal. Based upon the above facts, the Board finds that a preponderance of the evidence is against service connection for a bilateral knee disability. Although the veteran had episodes of knee pain in service, the record fails to contain any objective evidence of a current bilateral knee disability. The VA examinations and the private medical records reveal no bilateral knee disability, and the veteran testified that she had received no medical care for her knees. In the absence of a current disability, service connection may not be granted. The appeal is denied. II. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civilian occupations. See 38 U.S.C.A. § 1155 (West 2002). Separate Diagnostic Codes identify various disabilities. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the veteran took exception with the initial rating award, VA must consider all evidence of the veteran's disability as is necessary to evaluate the severity from the effective date of service connection through the present. It is not only the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses is to be avoided. Disabilities from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. See 38 C.F.R. § 4.14. When assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation which is due to pain which is supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movement in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. With any form of arthritis, it is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. See 38 C.F.R. § 4.59. A. Right Elbow Surgery The record shows that the RO granted service connection for residuals of right elbow surgery in a July 1997 rating decision and assigned a noncompensable evaluation effective from May 1997. In the March 1998 rating decision, the RO confirmed and continued the noncompensable evaluation and the current appeal ensued. At an October 1997 VA examination, the veteran complained of elbow pain after performing repetitive tasks for several hours. Upon examination, the surgical scar of the right elbow was asymptomatic and nontender. The right elbow had 130 degrees of flexion with a strong hand grip. However, on the pronator test, there was positive repetitive motion versus resistance on the medial aspect of the elbow. The veteran was diagnosed with status post elbow surgery, chronic medial epicondylitis with over use, normal range of motion. At her personal hearing before the RO in September 1999, the veteran testified that she had weakness and numbness of the elbow after performing repetitive tasks. She treated the condition with ice and rest. She had not received medical care for the right elbow since leaving the military. Records from Dr. Klemm reflect that the veteran injured her right elbow in September 1998 when she fell down stairs. An April 2003 VA examination, the veteran complained of tenderness of the elbow and stated that pain caused by repetition of movement was the major problem. She wore an elbow protector at night to straighten the arm. Upon examination, tenderness was present in the posterior aspect of the joint. Strength of the arm and hand was normal, with no atrophy of musculature. The elbow extended to 0 degrees, flexed to 130 degrees, and had supination and pronation to 90 degrees. The x-ray report showed degenerative changes of the elbow. The veteran was diagnosed with early degenerative joint disease. The veteran's residuals of right elbow surgery have been assigned a 10 percent schedular evaluation by analogy to 38 C.F.R. § 4.73, Diagnostic Code 5308 (2003). This Diagnostic Code provides that impairment of Muscle Group VIII of the major upper extremity warrants a noncompensable rating if it is slight, a 10 percent rating if it is moderate, a 20 percent rating if it is moderately severe or a 30 percent rating if it is severe. Muscle Group VIII consists of the muscles arising from the external condyle of the humerus (the extensors of the carpus, the fingers and the thumb, and the supinator. It controls the functions of wrist, finger and thumb extension and abduction of the thumb. A moderate muscle injury is shown when there is a through and through or deep penetrating wound of short track from a single bullet or small shell or shrapnel fragment, without explosive effect of high velocity missile, and there are residuals of debridement, or prolonged infection. See 38 C.F.R. § 4.56. Further, service department records or other evidence of in-service treatment for the wound must be shown, with consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. Id. A moderately severe injury to a muscle must be a through and through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, and intermuscular cicatrization. A history post- wounding of prolonged hospitalization in service for treatment, and a record of consistent complaint of the cardinal signs and symptoms of muscle disability, and if present, evidence of inability to keep up with work requirements must be shown. A severe muscle injury contemplates even greater symptomatology. Id. Applying the above criteria to the facts of this case, the Board finds that the preponderance of the evidence is against the assignment of the next higher evaluation. In this regard, the Board observes that the veteran's right elbow disability is manifested by pain and weakness following prolonged repetitive use. This symptomatology is contemplated in the criteria for a moderate muscle injury. On the contrary, neither the medical evidence or the subjective complaints of the veteran reflect the symptomatology contemplated for a moderately severe muscle injury. In the alternative, the Board has considered rating the right elbow residuals based upon limitation of motion of the joint involved. However, the application of these Diagnostic Codes would not afford the veteran a higher evaluation. See Diagnostic Codes 5003, 5010, 5206, 5207 (2003). Accordingly, the appeal is denied. B. Plantar Fasciitis The record shows that the RO granted service connection for plantar fasciitis of the left foot in a May 1999 rating decision and assigned a 10 percent evaluation effective from May 1997. The veteran disagreed with this initial evaluation and the present appeal ensued. The RO granted service connection for residuals of right heel surgery in a July 1997 rating decision and assigned a noncompensable evaluation effective from May 1997. In the March 1998 rating decision, the RO confirmed and continued the noncompensable evaluation and the current appeal ensued. In a May 1999 rating decision, the RO recharacterized the veteran's right foot disability as plantar fasciitis and increased the assigned evaluation to 10 percent, effective from May 1997. At an October 1997 VA examination, the veteran complained of bilateral foot pain, especially when taking the first steps in the morning. She tried to sit as often as possible while working. Upon examination, there were high arches bilaterally with callus formation on the right third and fifth toes and the left second toe. Pain was present with toe walking and squatting. The veteran could heel walk. The plantar areas anterior to the heels were tender. There was increased sensation and tenderness in the area of the right heel surgery. The veteran was diagnosed with status post right foot surgery with mild hypersensitivity and chronic bilateral plantar fasciitis. In a July 1998 letter, H. John Visser, D.P.M., wrote that the veteran had chronic bilateral heel pain and that a left heel surgical fasciotomy had provided no relief. Her symptoms appeared to be activity induced. Upon examination, she had no neurological deficits. She was referred for a nerve conduction velocity. A July 1998 medical report submitted by Daniel Phillips, M.D., stated that the veteran had a 15 year history of pain of the feet while weight-bearing, currently worse on the right. Upon examination, tenderness was present with the plantar fascia which extended into the region of the tarsal tunnel. Strength, reflexes, and vibratory sensation were intact. Dr. Phillips reviewed the EMG and nerve conduction studies and found that the findings were consistent with bilateral tibial neuropathies in the region of the tarsal tunnels, worse on the right. A September 1998 letter from Dr. Visser stated that the veteran had been treated since June 1998 for chronic plantar fasciitis symptoms. Surgery on the left foot during active service had not relieved the pain. The diagnosis of tarsal tunnel syndrome had been confirmed by nerve conduction velocity and Dr. Visser recommended further surgery of tarsal tunnel decompression of both feet. Additional records from Dr. Visser show that the veteran underwent an instep fasciotomy of the medial and central bands of the right foot and tarsal tunnel decompression of the right foot in February 1999. The surgery was performed due to chronic plantar fasciitis and tarsal tunnel entrapment. Follow-up visits through October 1999 show that the veteran continued to have right foot pain. At her personal hearing before the RO in September 1999, the veteran testified that her feet had spasms and pain after standing for a long period of time. She also had severe pain when she first placed weight on her feet, such as in the morning. She believed that both feet had the same symptomatology. She could no longer run or walk for exercise and had foot pain most of the time. She was currently receiving injections from Dr. Visser for treatment. In a May 2000 letter, Dr. Klemm wrote that the veteran complained of persistent pain and cramping of both feet. Examination of the feet found them to be painful on the plantar surfaces bilaterally, with the greatest pain in the arches. Associated treatment records show that the veteran presented with foot pain in February, August, and December 1999. At an April 2000 VA examination, the veteran reported that her foot pain extended from the heel to the area posterior to the first metatarsal. She could stand for two hours and then developed cramping of the feet and pain of the heels. She also had chronic pain at night. She wore supportive shoes. Upon examination, surgical scars did not interfere with movement. Range of motion was essentially normal but the veteran had tenderness throughout the range of motion and generalized pain throughout the feet. She was assessed with bilateral feet arthralgia. The veteran's plantar fasciitis of the left and right feet have been assigned separate 10 percent schedular evaluations pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2003). This Diagnostic Code provides that a 10 percent evaluation is warranted for moderate foot injuries. A 20 percent evaluation is assigned for moderately severe foot injuries and a 30 percent evaluation is awarded for severe foot injuries. Applying the above criteria to the facts of this case, the Board finds that a 20 percent disability evaluation for each foot more closely approximates the veteran's overall disability picture. In this regard, the Board observes that the veteran has undergone surgery of each foot, with limited success. The bilateral foot disability continues to cause chronic pain and the veteran's ability to stand, walk, or otherwise function is limited by her foot pain on a daily basis. Therefore, the Board finds that the veteran's bilateral plantar fasciitis is productive of moderately severe impairment and the assignment of the next higher evaluation is granted for each foot. Nevertheless, the Board finds that the criteria for an evaluation higher than 20 percent have not been met as the veteran's disability is not productive of severe impairment. The Board has also considered the application of alternative Diagnostic Codes, such as 5276 for flatfeet, but finds that none would afford the veteran a higher evaluation. There is also no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization, related to this disability that would warrant an extraschedular rating. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the provisions of 38 C.F.R. § 3.321(b), is not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran or her representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds no provision upon which to assign a higher rating. Accordingly, an evaluation of 20 percent for each foot, but no more than 20 percent, is granted. ORDER Service connection for chronic laryngitis is denied. Service connection for a right hip disability is denied. Service connection for hemorrhoids is granted. Service connection for a bilateral knee disability is denied. An evaluation in excess of 10 percent for residuals of right elbow surgery is denied. An evaluation of 20 percent for plantar fasciitis, left foot, is granted, subject to the provisions governing the award of monetary benefits. An evaluation of 20 percent for plantar fasciitis, right foot, is granted, subject to the provisions governing the award of monetary benefits. ___________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2