Citation Nr: 1007141 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-06 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a higher, initial disability rating for bilateral pes planus, currently evaluated as 10 percent disabling. 3. Entitlement to a higher, initial disability rating for right plantar fasciitis, currently evaluated as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1972 and from June 1979 to August 2005, with approximately an additional 3 years and 11 months of active duty in between these dates. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision (issued in September 2005) by a Regional Office (RO) of the Department of Veterans Affairs (VA). In pertinent part, the rating decision denied service connection for tinnitus but granted service connection for bilateral pes planus and right plantar fasciitis and assigned a 10 percent and noncompensable (zero percent) disability rating, respectively. A notice of disagreement was received in November 2005, a statement of the case was issued in November 2006, and a substantive appeal was received in January 2007. In the August 2005 rating decision, the RO also granted service connection for hypertension and assigned a noncompensable (zero percent) disability rating thereto. The Veteran had filed a notice of disagreement as to the disability rating assigned for hypertension, indicating that it should be rated as 10 percent disabling. See November 2005 notice of disagreement. However, in a rating action dated November 2006, the RO granted the 10 percent rating requested, effective from the day following service discharge. Therefore, that action resolved the appeal concerning that issue. On his February 2007 substantive appeal, the Veteran indicated that he wanted a Board hearing at his local RO. However, in July 2009, the Veteran withdrew his request for a hearing. The Board, then, finds that all due process has been satisfied with respect to the Veteran's right to a hearing. FINDINGS OF FACT 1. The Veteran's current tinnitus was manifested in service. 2. The Veteran does not have severe flat foot of either foot. 3. The Veteran does not have a moderate foot injury of either foot. CONCLUSIONS OF LAW 1. Tinnitus was incurred during active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 2. The criteria for an initial disability rating in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2009). 3. The criteria for an initial, compensable disability rating for right plantar fasciitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5099-5020 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). For an increased-compensation claim, the VCAA requirement is generic notice, that is, notice that informs the claimant of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, No. 08-7150, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009). The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 U.S. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a July 2005 letter sent to the Veteran that fully addressed all required notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate his claims and of the Veteran's and VA's respective duties for obtaining evidence. With respect to the increased rating claims, the Veteran is challenging the initial disability rating assigned following the grant of service connection. In Dingess, supra, the Court of Appeals for Veterans Claims 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. In this case, as noted, the RO sent the Veteran a letter that informed him of the information and evidence needed to substantiate his service connection claim. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; afforded the Veteran examinations in June 2005 and May 2008; obtained medical opinions as to the etiology and severity of disabilities; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and neither the Veteran nor his representative has contended otherwise. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the 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(b); 38 C.F.R. § 3.102. Service connection for tinnitus Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2009). In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service treatment records are silent for reference to tinnitus, and on service discharge examination in 2005, the Veteran's ears were normal. The Veteran filed a claim for service connection for tinnitus in June 2005, while he was still in service, which the Board considers an indication that he had tinnitus in service. The Veteran's DD Form 214 reflects that he served as a rifleman and in airfield operations; therefore, the Veteran's military noise exposure is presumed. There was a VA examination in June 2005. The examination report reflects that the Veteran did not report tinnitus. However, in November 2005, the Veteran indicated that the VA examination report showed subjective complaints of tinnitus. The Veteran told a VA examiner in May 2008 that he had had tinnitus for about 15 years. The examiner found the Veteran had tinnitus but the examiner opined that it was not likely related to service because of its infrequency of 2 times per month. After reviewing the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran's current tinnitus disorder was present in service and has continued since service, as indicated by the Veteran. The Veteran is competent to indicate that he had tinnitus in service and that he has it currently, as tinnitus a disorder which is within his sensibilities to observe. See Falzone v. Brown, 8 Vet. App. 398 (1995). The Board finds the Veteran's assertions of continuity since service to be credible. Notwithstanding the opinion from the May 2008 VA examiner, the Board finds probative that the Veteran was exposed to significant noise during military service and has reported continued symptoms since service. Therefore, based on the foregoing and after resolving all reasonable doubt in the Veteran's favor, the Board finds the preponderance of the evidence supports the grant of service connection for tinnitus. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Ratings for pes planus and right plantar fasciitis Disability ratings 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. The evaluation of the same disability or manifestation under various Diagnostic Codes is to be avoided. 38 C.F.R. § 4.14. Entitlement to service connection for bilateral pes planus was established in August 2005, and the RO assigned a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276. Entitlement to service connection for right foot plantar fasciitis was also established in August 2005, and the RO assigned a noncompensable (zero percent) disability rating under 38 C.F.R. § 4.71a, DC 5099-5020. Plantar fasciitis is not listed on the Rating Schedule, and the RO assigned DC 5099-5020 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20 (2009). The RO determined that the most closely analogous diagnostic code is 38 C.F.R. § 4.91a, DC 5020, for synovitis. The Veteran's service-connected bilateral pes planus and right foot plantar fasciitis involve his feet and the disabilities share overlapping symptoms. Accordingly, separate disability ratings are prohibited under 38 C.F.R. § 4.14. Nevertheless, the Board will consider whether the Veteran's service-connected bilateral pes planus, with right foot plantar fasciitis warrants a higher disability rating under all potentially applicable diagnostic codes, including DCs 5276 and 5020. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (Board must explain reasons for considering alternative Diagnostic Codes). Diagnostic Code 5276 provides that pronounced, acquired flatfoot, 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, warrants a 50 percent rating if bilateral and a 30 percent rating if unilateral. Severe, acquired flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities warrants a 30 percent rating if bilateral and a 20 percent rating if unilateral. Moderate, acquired flatfoot, with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet warrants a 10 percent rating, whether bilateral or unilateral. Mild, acquired flatfoot, with symptoms relieved by built-up shoe or arch support warrant a noncompensable (zero percent) disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2009). Under DC 5020, synovitis is rated on limitation of motion of affected parts, as degenerative arthritis. Under DC 5003, degenerative arthritis, when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note 1 accompanying DC 5003 states that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based upon limitation of motion. Note 2 states that the 20 percent and 10 percent ratings based on X-ray findings will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024. 38 C.F.R. § 4.71a, DC 5003. Diagnostic Code 5284 provides that other foot injuries warrant a 10 percent rating if moderate, 20 percent if moderately severe, and 30 percent if severe. In every instance where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Based on the evidence, the Board concludes that the Veteran does not meet the criteria for a higher rating for his service-connected bilateral pes planus or service-connected right foot plantar fasciitis. On VA examination in May 2008, the Veteran reported a three year history of soreness affecting the sole of his right foot and his plantar fascia, which is unrelieved with orthotics. He also had a history of years of pain about the region of the sinus tarsi/talocalcaneal articulations of both feet and the tarsometatarsal articulations of both feet. The examiner found the Veteran to have moderate, bilateral pes planus with collapse of the longitudinal arches bilaterally. He had normal function of the tibialis posterior and tendo Achilles bilaterally, and there was not pain on manipulation of either foot. The tendo Achilles alignment was normal without weightbearing and mildly valgus with weight bearing bilaterally. Tenderness was present to palpation in the course of the medial band of the plantar fascia and in the sole of the right foot and bilaterally at the level of the sinus tarsi. There was mild tenderness at the level of the metatarsophalangeal joints and tarsometatarsal articulations. None of these areas exhibited any range of motion impairment, swelling, or deformity. There was no painful motion, edema, weakness, or instability, and gait was normal. Weight bearing was normal without abnormal shoe wear, abnormal pattern or callosities. Walking ability, standing ability, and distance tolerance appeared normal and unimpaired without a requirement for extra breaks, restriction of tasks, or limitation of work hours. There were no range of motion limitations regarding either foot. The diagnoses were bilateral pes planus, capsulitis of the subtalar, sinus tarsi, and metatarsal phalangeal joint regions, and right foot plantar fasciitis. In evaluating the Veteran's claim, the Board notes the evidence does not show severe flatfoot of either foot. Indeed, there is no objective evidence of marked deformity, pain on manipulation or use accentuated, indication of swelling on use, or characteristic callosities. The evidence also does not show moderate foot injuries of either foot. In this regard, the evidence shows the Veteran's gait is normal with no painful motion. Abilities are unimpaired, there is no limitation of motion, edema, weakness, or instability, and weightbearing is normal. Therefore, the Board finds a higher disability rating is not warranted for either service- connected food disability under DCs 5276, 5020/5003, 5284, or any other potentially applicable diagnostic code. The Board has also considered the Veteran's claim under provisions of 38 C.F.R. §§ 4.40 and 4.45; however, there is no objective evidence that the Veteran's service-connected foot disabilities cause additional functional loss due to pain, weakness, fatigability, swelling, deformity, or disuse atrophy. The possibility of an extraschedular rating has been considered. However, the service-connected disability does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Veteran indicated in June 2004 that he was able to perform all of his job duties. The symptoms associated with the Veteran's disability appear to fit squarely within the applicable rating criteria. As such, extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. The Board concludes that the disability has not significantly changed and that a uniform rating is warranted. In summary, and for the reasons and bases set forth above, the Board finds the preponderance of the evidence is against the grant of a higher, initial disability rating for service- connected bilateral pes planus and service-connected right foot plantar fasciitis. Because the evidence preponderates against the claim, there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for tinnitus is granted. A higher, initial disability rating for service-connected bilateral pes planus is denied. A higher, initial disability rating for service-connected right foot plantar fasciitis is denied. ____________________________________________ A. J. Turnipseed Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs