Citation Nr: 1004634 Decision Date: 02/01/10 Archive Date: 02/18/10 DOCKET NO. 07-03 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral pes planus with hallux valgus. 2. Entitlement to an initial compensable rating for right knee chondromalacia. 3. Entitlement to an initial compensable rating for left knee chondromalacia. 4. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral knee and foot disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1978 to July 1978, and from April 1980 to May 1980, including periods of reserve duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal. Jurisdiction of the claims file was subsequently returned to the Los Angeles, California, RO. In September 2009, the Veteran appeared and testified at a Travel Board hearing at the Los Angeles RO. The transcript is of record. The issues of entitlement to service connection for a low back disability and entitlement to increased initial ratings for service-connected chondromalacia patellae are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's bilateral pes planus and hallux valgus are not shown to have more than moderate disablement. There is no objective evidence of marked deformity, pain on manipulation and use accentuated, an indication of swelling on use and characteristic callosities. CONCLUSION OF LAW The criteria for assignment of a rating in excess of 10 percent for service-connected pes planus, hallux valgus, and chronic calluses have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.71a, Diagnostic Code 5276 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a Veteran of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a Veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters dated in December 2004 and March 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete his underlying claims for service connection, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also generally advised the Veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in the March 2006 notice. Here, the Veteran is challenging the initial ratings assigned following the grant of service connection in May 2005. In Dingess, the Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. As such, the Board finds that VA met its duty to notify the Veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the December 2004 VCAA notice was given prior to the appealed AOJ decision, dated in May 2005. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence, affording him physical examinations, obtaining medical opinions as to the severity of his disabilities, and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board. As noted above, in September 2009, the Veteran appeared and testified at a Travel Board hearing at the Los Angeles RO. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the Veteran's claims file. Thus, the Board finds that VA has done everything reasonably possible to notify and assist the Veteran and that no further action is necessary to meet the requirements of the VCAA. The Veteran seeks a rating in excess of the 10 percent currently awarded for his service-connected bilateral pes planus with hallux valgus and chronic calluses. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. See Fenderson v. West, 12 Vet. App. 119 (1999). In Hart v. Mansfield, 21 Vet.App. 505 (2007), however, the Court held that "staged" ratings are appropriate for an increased rating claim in such a case, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran's bilateral foot disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under Diagnostic Code 5276, a 10 percent rating is warranted for moderate bilateral pes planus manifested by weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, and pain on manipulation and use of feet. A 30 percent rating is warranted for severe bilateral 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 50 percent rating is warranted for pronounced bilateral pes planus; 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board has considered whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). There are only three rating codes for the foot that provide an evaluation higher than 10 percent. Because there is no medical evidence of claw foot or malunion or nonunion of the tarsal or metatarsal bones or residual disability due to injury, the Board finds that another rating code is not more appropriate for the disability at issue. See 38 C.F.R. § 4.71a, Diagnostic Codes 5278, 5283, 5284. The Board also notes that the Veteran's hammertoes are not service connected, so the rating criteria for hammertoes are also inapplicable. The Veteran's VA treatment history reflects his complaints of bad calluses that impact his walking. He was treated with ambulatory shoes and urea lotion for his calluses. In April 2005, the Veteran underwent a VA examination. He reported chronically and progressively increasing pain in both feet with calluses under the balls of his feet. He related that he experienced constant, sharp, burning pain rated as 8-10/10 in terms of severity, with 10 being the most severe pain. The Veteran reported flare-ups once monthly that last for two weeks. Calluses with prolonged standing and walking exacerbates his pain, and trimming the calluses temporarily relieves his pain. He also reported using shoe inserts and pads, orthopedic shoes, occasionally using a cane, and pain medication for treatment. Physical examination revealed a normal gait. He had bilateral pes planus and mild bilateral hallux valgus with bunions, left greater than right. Hammertoes were noted on the right second through fifth phalanges with hard calluses over the dorsal right second, third, and fourth phalanges. There were also hammertoes noted on the left, second through fifth phalanges, but without corns or calluses. There were calluses noted bilaterally on the balls of the feet. The examiner noted tenderness to palpation of the left bunion and corns on the right second, third, and fourth phalanges. There was also tenderness found on the palpation of the calluses on the soles of both feet. There were no restrictions to the great toe's range of motion, nor were there restrictions to the lesser toes' range of motion. Dorsiflexion on the right was 4/5 and 5/5 on the left. Plantar flexion on the right was 4/5 and 5/5 on the left. Deep tendon reflexes patellar and Achilles tendon reflexes were 2+/2+ bilaterally. The examiner indicated no loss of sensation to light touch and pinprick over the ankle, foot, and toes. The distal pulses were 2+/2+ bilaterally. X-rays of the feet confirmed the bilateral pes planus deformity, hallux valgus deformity, and hammer toe deformities. There was a minimal well-corticated erosion of the first metatarsal head and proximal phalanx at interphalangeal joint. The examiner indicated that this could represent degenerative cysts versus early erosion of gouty arthritis, but recommended clinical correlation of this. Following examination, the examiner opined that the Veteran's bilateral foot condition was essentially unchanged since service, except for bunions and more corns. The examiner also indicated that there have been no post-service injuries or trauma to aggravate his current condition. In August 2008, the Veteran underwent a VA examination of the feet. He reported calluses in both feet with deviation of both toes. He described the pain in his feet as aching, intermittent, and 7-8/10 in severity. The Veteran described his pain as occurring with prolonged standing and relieved by rest. He also had a history of hammertoes that were repaired in 2005. The Veteran advised that he has calluses on the plantar portion of his feet, and sometimes haves them. He related that they sometimes become painful and he has used steroid cream in the past for treatment. The Veteran denied any current treatment for his bilateral foot disabilities, nor are there any clinical findings that the Veteran's service-connected bilateral pes planus with hallux valgus are related to his nonservice-connected hammertoes. Physical examination of the feet revealed calluses on the plantar aspects of both feet and on the toes of both feet. Musculoskeletal examination revealed painful motion on the right and left to movement of the toes, and there was generalized tenderness to palpation of the plantar aspects of both feet. There was active motion at the metatarsal phalangeal joints of the great toes. The Veteran's gait was normal. The examiner indicated that the Veteran had flatfeet with slight foot valgus on the right and left. The forefoot was slightly dorsiflexed with the foot everted to the left and the right. There was also slight tenderness to palpation of the plantar surface of both feet. The Achilles tendon revealed good alignment on the left and right. There was no evidence of claw feet. Dorsiflexion of all the toes produced pain in some of the toes, and there was a slight tenderness to the metatarsal heads of all toes. There were no hammertoes on the right, but the left had hammertoes on the second, third, forth, and fifth toes. The examiner found no Morton's metatarsalgia. He did, however, note hallux valgus bilaterally with a slight degree of angulation. There was no evidence of hallux rigidus, and the Veteran did not appear to have any limited function regarding standing or walking. The Veteran reported currently using arch supports in his shoes. Given the evidence as outlined above, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his service-connected bilateral pes planus. Although the Board appreciates the assertions by the Veteran that his disability meets the criteria for a rating in excess of 10 percent, there is no objective medical evidence of record to support a 30 percent rating for bilateral pes planus as contemplated by Diagnostic Code 5276. There is no evidence that the symptoms of the Veteran's bilateral pes planus and hallux valgus are "severe" as described under the code. Specifically, there is no evidence of marked deformity, pain on manipulation and use accentuated, swelling or characteristic callosities. As such, the Veteran's symptoms related to his service-connected bilateral pes planus are most analogous to a 10 percent rating for moderate symptoms. Thus, a rating in excess of 10 percent for bilateral pes planus with hallux valgus is denied. The Board considered the possibility of staged ratings vis-à-vis the Veteran's bilateral pes planus and hallux valgus claim pursuant to Hart, but finds no evidence to support staged ratings from the date of the October 2004 claim. The Board is required to consider the effect of pain and weakness when rating a disability of the musculoskeletal system. See 38 C.F.R. §§ 4.40, 4.45; see also, DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered the Veteran's complaints of pain, as well as all evidence of record related to limitation of motion, incoordination, fatigability, and pain on motion, in determining that the preponderance of the evidence is against the Veteran's claim of entitlement to a rating in excess of 10 percent for the Veteran's bilateral pes planus with hallux valgus. Finally, the Board has also considered the applicability of other diagnostic codes pertaining to the foot-weak foot (5277), pes cavus (5278), Morton's disease (5279), hallux valgus (5280), hallux rigidus (5281), hammertoe (5282), malunion or nonunion of the tarsal or metatarsal bones (5283), or a moderate "other foot injury" (5284). The facts and circumstances of this case do, however, not permit the application of these other codes or, if they may be applied, they are of no benefit to the Veteran. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). As such, an initial rating in excess of 10 percent for the Veteran's service-connected bilateral pes planus with hallux valgus deformities is denied. Extraschedular consideration The Veteran does not assert that he is totally unemployable solely because of his service-connected bilateral pes planus with hallux valgus, nor has he identified any specific factors which may be considered to be exceptional or unusual in light of VA's schedule of ratings. The Board has been similarly unsuccessful in locating exceptional factors. Specifically, the Veteran has not required frequent periods of hospitalization for treatment of his foot disabilities. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a) and 4.1. 38 C.F.R. § 4.1 specifically states, "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Therefore, because there is no evidence of the Veteran requiring frequent periods of hospitalizations due to his bilateral pes planus with hallux valgus, the Board finds that the 10 percent rating currently assigned adequately reflects the clinically established impairment experienced by the Veteran. In the absence of requisite factors, the criteria for submission for assignment of an extraschedular rating for this disability pursuant to 38 C.F.R. § 3.321(b)(1) are not satisfied. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Consequently, the Board will not refer this claim to the Director of Compensation and Pension for extraschedular review. ORDER An initial rating in excess of 10 percent for service- connected bilateral pes planus with hallux valgus is denied. REMAND In light of the VCAA, the Board finds that further development is necessary regarding the Veteran's claims of service connection for a back disability and increased initial ratings for his service-connected bilateral knee disabilities. The Veteran's service treatment records (STRs) reflect one instance of treatment for low back pain in April 1980. He was assessed as having a lumbar back sprain. There were no other treatment records regarding any residual back disability. VA treatment records reflect the Veteran's complaints of chronic low back pain having its onset in 1983. In a December 2004 MRI report, the findings included mild, disc- space narrowing along the posterior disc margins at L4-5 and L5-S1. There was mild hypertrophic facet arthropathy at L4-5 and L5-S1 bilaterally that resulted in mild foraminal narrowing at L5-S1. The radiologist also indicated that there appeared to be significant osteophytes bridging across the sacroiliac joints, but it was difficult to determine with the MRI. The radiologist opined that the Veteran's pain may be secondary to sacroiliac joint disease as well as the hypertrophic facet arthropathy at L4-5 and L5-S1. The left knee MRI from December 2004 revealed a degenerative tear in the posterior horn of the medial meniscus, tiny suprapatellar knee effusion, and a moderately sized Baker's cyst. The right knee MRI revealed a radial tear of the posterior horn of the lateral meniscus, grade 1 strain with injury to the medial collateral ligament, mild suprapatellar joint effusion, and old trauma with Osgood Schlatter's disease in the tibial tuberosity. In a January 2005 VA treatment record, the Veteran was noted to have very mild degenerative joint disease of the bilateral knees with possible posterior horn medial meniscus tears. The following month, the Veteran was noted to have a history of chronic low back pain with a primarily mechanical component to it. There was also a notation of possible intermittent radiculitis at the S1 level with possible sacroiliac joint bridging osteophytes. In April 2005, the Veteran underwent a VA examination. The Veteran reported flare-ups of knee pain that was constant, sharp, and burning in the right lateral and subpatellar area and the left medial and subpatellar area. The Veteran reported flare-ups of 10/10 once monthly, but daily pain as 7/10. He reported that prolonged standing and walking caused flare-ups, and resting, ice packs, and medication relieved the pain. The Veteran advised that he used knee braces from time to time and occasionally used a cane. The examiner diagnosed the Veteran as having chondromalacia patellae, diagnosed during service, current tear of the posterior horn of the lateral meniscus in the right knee with grade 1 strain of the medial collateral ligament, and current degenerative tear in the posterior horn of the medial meniscus, left knee with a moderately sized Baker's cyst. The examiner opined that the Veteran's in-service finding of chondromalacia patellae was totally different from his current diagnoses related to the knees. The examiner found that the Veteran's current knee disabilities (meniscus tears, strain, and Baker's cyst) are unrelated to his brief period of active military duty. The examiner's rationale was that chondromalacia patella affects the patello-femoral joint which is not a weight-bearing joint, and without documentation of a torquing or lateral/medial shearing injury to his knees while in the military, it is unlikely that his current knee conditions are related to the Veteran's chondromalacia. The examiner did not, however, address whether any of the Veteran's symptomatology was associated with his service-connected chondromalacia patellae. Subsequent to this VA examination, the Veteran was awarded service connection for chondromalacia patellae and awarded a noncompensable rating. The Board is aware that there are disabilities that the examiner did not relate to his in- service findings of chondromalacia, and it appears that treating personnel as well as this examiner found that the Veteran's symptoms were primarily related to the currently diagnosed knee disabilities. A June 2005 VA treatment record notes the Veteran's complaints of bilateral knee pain and there was minimal evidence of degeneration noted on x-rays. It was noted that the Veteran's MRI suggested he had degenerative tears of the medial meniscus of the bilateral knees. Upon physical examination, the Veteran was not found to have effusion in either knee, and range of motion of the knees revealed flexion to 120 degrees with minimal pain. There was no finding of varus or valgus instability, and Lachman's testing was negative. The right knee had joint line tenderness with a positive McMurray's testing, and the left knee had medial joint line tenderness and pain with patellofemoral compression. Motor and sensation were intact in the bilateral lower extremities. The assessment was bilateral knee pain, without significant degeneration of the knee joints noted on the x-rays, possible radial tear of the right lateral meniscus, and possible tear of the medial meniscus in the left knee. In an August 2005 VA treatment record, the Veteran reported bilateral knee pain located on the anterior aspect below the patella, lateral, and medial aspect of his knees. The Veteran advised that he experienced sharp pains in the knees and wore braces to help relieve the pain. He reported worsened pain with climbing and descending stairs, walking, and standing after sitting. The physician found that the Veteran's bilateral knee pain was most likely secondary to his meniscal tears. In August 2008, the Veteran underwent another VA examination. He reported recurrent giving way, lack of endurance, stiffness, burning, and aching. He advised that these symptoms occurred in both knees, and sometimes occurred on a daily basis. He related that the pain was caused by physical activity and was relieved by rest and over-the-counter medication. Range of motion testing was within normal limits bilaterally, and was not limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Varus and valgus strength produced no laxity in the collateral ligaments on the left and right, and there was no laxity to the anterior and posterior cruciates bilaterally. Finally, there were no meniscal clicks on the left or right. In regards to his back, the Veteran reported injuring his lower back in April 1980 when he picked up a generator and had experienced pain since. The Veteran reported no recurrence of back problems during service, and denied any post-service trauma to his back. The onset of his pain was noted to be in 2003 that he described as a dull aching pain without radiation. The examiner indicated that the Veteran's subjective complaint of chronic low back pain was not reflected in the objective evidence of functional deficits, and was not likely related to his injury in 1980. The examiner noted that the Veteran's examination was essentially negative and without objective evidence of functional deficits. The examiner pointed to the Veteran's lack of complaints of back pain from 1980 to 2003 as rationale. The examiner, however, did not address the radiographic findings of minimal abnormalities in the spine, nor did he address whether any back complaints were caused or aggravated by the Veteran's service-connected bilateral foot and bilateral knee disabilities. Upon review of the evidence of record, the Board finds that another VA examination is necessary to determine the symptomatology attributable to the Veteran's service- connected chondromalacia patellae and whether it may possibly be aggravated by his nonservice-connected knee disabilities for which he is currently diagnosed. The Veteran has advised that he has experienced pain in the knees since service. Again, the VA examinations of record do not address what, if any, of the Veteran's current symptomatology of the knees is attributable to his service-connected chondromalacia patellae. Another VA examination is also necessary regarding the Veteran's claim of service connection for a low back disability, secondary to service-connected bilateral knee and bilateral foot disabilities as the examination of record is inadequate. As noted above, the April 2005 VA examination did not discuss whether any current back disability is attributable to his service-connected bilateral knee and bilateral foot disabilities, nor did the examination address the treatment records referencing mild hypertrophic facet arthropathy at L4-5 and L5-S1 and sacroiliac problems. As such, the Board finds that another VA examination should be scheduled for a clarified discussion of the Veteran's bilateral knee disabilities, and to obtain an opinion as to whether the Veteran's current back disability is attributable to his in-service treatment for back pain or secondary to his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate specialist to determine the nature and etiology of his claimed low back disorder, and the current severity of the Veteran's bilateral knee disability that is attributable to his service-connected chondromalacia patellae. The Veteran's claims folder should be made available to the examiner. The examiner is to perform all necessary clinical testing and render all appropriate diagnoses. The examiner should then render an opinion as to whether it is at least as likely as not that any current low back disorder had its onset in service or was caused or worsened by his service-connected knee or foot disability. The examiner should specifically address the Veteran's complaints as well as the radiographic evidence of slight abnormalities in the back. The examiner should also offer an opinion as to whether there are any current residuals of the Veteran's bilateral chondromalacia patella based upon the Veteran's reported symptomatology and clinical findings. If possible, the examiner should discuss those complaints that are attributable to his service- connected chondromalacia, and those that are attributable to his nonservice- connected knee disabilities. The examiner should provide rationale for all opinions given. If the requested opinions cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. When the development requested has been completed, the case should be reviewed on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional evidentiary development and the Board, at this time, does not intimate any opinion as to the merits of the case, either favorable or unfavorable. The Veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. No action is required of the Veteran until he is notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs