Citation Nr: 1010127 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 08-18 524 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 10 percent for pes planus. 2. Entitlement to a rating in excess of 10 percent for residuals of a bunionectomy on the left foot. 3. Entitlement to a separate compensable rating for non-scar residuals of a bunionectomy of the left foot. ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Associate Counsel INTRODUCTION The Veteran had active military service from April 1984 to February 1987 and from December 1990 to June 1992. The Veteran also served in the Army National Guard. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2007 rating decision. FINDINGS OF FACT 1. The medical evidence does not show severe pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities.. 2. The surgical scars on the Veteran's left foot cover less than 12 square inches and do not impair the functioning of her foot. 3. The medical evidence show a moderate left foot disability as a result of the Veteran's bunionectomy. CONCLUSIONS OF LAW 1. Criteria for a rating in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5276 (2009). 2. Criteria for a rating in excess of 10 percent for a scar as a result of a bunionectomy on the left foot have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, DCs 7801, 7802, 7803, 7804 (2009). 3. Criteria for a separate 10 percent rating for non-scar residuals of a bunionectomy on the left foot have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DCs 5003, 5284 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has 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). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. Evidence Given that the two issues on appeal are both related to the Veteran's feet, the medical and lay evidence as it relates to the Veteran's feet will be described first, and then each foot disability will be considered individually below. The Veteran filed her claim for service connection for residuals of a bunionectomy and for pes planus in March 2007. Service connection was granted for each with noncompensable ratings assigned. The Veteran appealed the noncompensable ratings arguing that because her feet were painful she should be awarded compensable ratings. The RO subsequently assigned 10 percent ratings for each foot disability; however; because this is not considered a complete grant of benefits sought, the Veteran's appeal continues. During the course of the Veteran's appeal, she has undergone two VA examinations and attended several sessions with a VA doctor of podiatric medicine ("DPM"). She has also written periodically to complain about the pain in her feet. In July 2007, the Veteran underwent her first VA examination. She complained that she began having achy, throbbing pain around 2003 that was worse when she was walking or standing. Steroids and inserts helped some. The Veteran complained that even after the bunionectomy she continued to have pain in the joint area that was achy and throbbing. She reported a functional limitation of standing at one time for 60-90 minutes and walking for 60 minutes. The Veteran estimated that she could stand 2-3 hours per 8 hour period, and could walk 2 hours. However, she denied that her foot pain had any affect on either her occupation or her activities of daily living. The examiner found that the Veteran had mild pes planus with weight bearing bilaterally, and he noted that she had some tenderness with palpation of both arches. However, the examiner did not observe any calluses or ulcers. Additionally, the examiner observed that the Veteran was able to ambulate unassisted in shower shoes without a cane, brace or crutches. Her posture was erect and she had a normal gait. The examiner found that the Veteran had a mild bunion bilaterally of the MTP joint and the Veteran had slight tenderness in the left MTP joint area of the great toe. The examiner indicated that the Veteran had a well-healed surgical scar on the dorsal left MTP area that was hyperpigmented. The scar was 4.5 x 1.3 cm at its widest. The examiner noted that the scar was slightly tender, but found no adhesion to underlying tissue, no elevation and no depression. The scar was found to be superficial without inflammation, edema, or keloid formation, and there was no functional limitation associated with the scar. X-rays in September 2007 showed degenerative changes in the MTP joint of the left great toe. The Veteran's right foot appeared normal, and longitudinal views showed the arches to be normally maintained bilaterally. At a podiatry consultation in September 2007 the Veteran complained that she was having pain in both arches. She stated that since the bunionectomy, she had a scar that has hypersensitive to touch. The examiner indicated that the Veteran's arches collapsed on weight bearing with medial talar bulge. There was tenderness along the arch, but no swelling was noted. The examiner indicated that pain and crepitus was found at the 1st MTP joint on the left foot with active and passive range of motion. The podiatrist diagnosed the Veteran with symptomatic pes planus with resulting bunions, residual degenerative joint disease of the 1st MTPJ of the left foot, following surgery, and a hyperstetic scar. In January 2008, the Veteran had another podiatry session, at which she again had hypersensation of her scar. The doctor found the same symptoms that she reported in September 2007. The Veteran was given an injection of kenalog into her left foot; but she reported at a session in February 2008 that the injection had unfortunately provided very little relief. The Veteran indicated that she worked at a store and was afraid of losing her job due to difficulty standing. The doctor indicated that the Veteran had symptomatic pes planus that was more likely than not the cause of her foot pain. It was also noted that the Veteran had degenerative joint disease in her MTP joint following her surgery. In March 2008, the Veteran called VA requesting a note excusing her from work on account of chronic foot pain that was aggravated by prolonged standing and walking. The Veteran underwent a second VA examination of her feet in August 2008 at which she indicated that she was able to perform all of her activities of daily living, but she stated that she had been unable to keep her job as a result of her foot pain, because the job required her to be on her feet for long periods of time without breaks. With regard to her right foot, the Veteran described an aching, tingling pain in her arches after prolonged standing or walking, and she stated that occasionally her feet would ache. With regard to her left foot, the Veteran stated that the pain was a tingling, dull, constant pain in the arch. She stated that because of her bunionectomy she was unable to wear shoes and could not stand lateral to medial pressure. It was noted that the Veteran had a scar on the left MTP joint of the big toe that measured approximately 4x1 cm. The scar was linear, slightly irregular, flat, nontender, and hyperpigmented. The scar moved freely with no adherence, induration, or ulceration observed. The examiner indicated that the Veteran had dorsiflexion from 0-30 and plantar flexion from 0-40 with 10 degrees lost to plantar flexion and 15 degrees to dorsiflexion in the left foot compared to her right foot. The Veteran's toes were normal bilaterally except for the left large toe. The examiner indicated that there was tenderness with stress or palpation of the arches, but there was no edema, noted weakness, instability, or erythema of either foot; and the Veteran had no additional functional limitations with standing or walking when observed ambulating. No calluses were noted and the Veteran's shoe wear was normal. The Veteran's Achilles tendons were aligned and the examiner indicated that the Veteran had mild pes planus with tenderness on manipulation of her arches. The examiner indicated that the Veteran's right foot was normal on x-rays and there were degenerative changes in the left great toe. A longitudinal view of the arches showed that they were normally maintained bilaterally on standing view. The examiner diagnosed the Veteran with status post left bunionectomy and mild congenital pes planus bilaterally. In September 2008, there was swelling noted in the big toe at the MTP joint which was attributed to the degenerative joint disease following surgery. Throughout the course of her appeal, the Veteran has complained about pain in her feet and the difficulty it causes. In her notice of disagreement, the Veteran reported having pain in her feet when she awoke each morning, which required her to walk on the tips of her feet due to pain for 20 minutes. She stated that her bunion hurt all the time and was worse at that time than it had been before the surgery. In February 2008, the Veteran again complained about having pain in her feet to the point that she was unable to work on her feet for 8 hours per day. In her substantive appeal in June 2008, the Veteran indicated that she had stopped working. Pes planus The Veteran's pes planus is currently rated as 10 percent under 38 C.F.R. § 4.71a, DC 5276. A 10 percent rating is assigned for moderate pes planus where the weight-bearing line is over or medial to great toe, with inward bowing of the tendo achillis, and with pain on manipulation and use of the feet. A 30 percent rating is assigned for severe bilateral pes planus where there is objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. The Veteran argues that a higher rating is warranted for her bilateral pes planus, based on then pain her feet cause her. The Board is sympathetic to the Veteran's complaints of pain, but the fact remains that the objective medical evidence does not describe severe pes planus. Specifically, the examiners at both of the Veteran's VA examinations (in 2007 and 2008) described the Veteran's pes planus as "mild." Additionally, the medical evidence does not show any of the additional signs of severe pes planus that are enumerated in the rating schedule. The evidence does not show marked deformity in the Veteran's feet as a result of the pes planus, as x-rays have shown that the Veteran's arches were normally maintained bilaterally on standing longitudinal view. The evidence also does not to show callosities as both examiners denied observing any calluses; and the Veteran has not raised any allegation that her pes planus causes calluses on either foot. There has also been no objective evidence of swelling presented as a result of the pes planus. Some swelling was noted around the left big toe, but this was attributed to the bunionectomy and not to the pes planus. While the Veteran has described pain on use, the examiners have found that she has a normal gait. VA treatment records have been reviewed, but they fail to show symptoms of pes planus that were not addressed by the two VA examinations. The Board is once again sympathetic to the pain in the Veteran's feet; and the Board does not question that the Veteran does in fact have pain in her feet. However, the fact remains that the objective medical evidence does not support a finding of severe pes planus. As such, the criteria for a rating in excess of 10 percent for pes planus have not been met, and the Veteran's claim is therefore denied. Residuals of a bunionectomy on the left foot The Veteran has also sought compensation for the residuals of a bunionectomy she had on her left great toe. She is currently awarded a 10 percent rating for a scar that is superficial and painful on examination under 38 C.F.R. § 4.118, DC 7804. For scars that do not affect the head, face or neck, a 10 percent rating is assigned if the scar is: 1) deep or causes limitation of motion, and covers an area exceeding 6 square inches (39 sq cm.), (a deep scar is one associated with underlying soft tissue damage) (38 C.F.R. § 4.118, DC 7801); 2) superficial (meaning that it is not associated with underlying soft tissue damage), does not cause limitation of motion, and covers an area of at least 144 square inches (929 sq cm), (38 C.F.R. § 4.118, DC 7802); or 3) superficial and either unstable (meaning that for any reason, there is frequent loss of covering of skin over the scar) or painful on examination (38 C.F.R. § 4.118, DCs 7803 & 7804). However, in order to receive a rating in excess of 10 percent for a scar that does not impact the head, face or neck, the scar must either cover an area exceeding 12 square inches or limit the functioning of the affected part. In this case, the medical evidence does not support a scar rating in excess of the 10 percent that is already assigned. The bunionectomy scar on the left MTP joint of the big toe has been measured on two occasions during the Veteran's appeal. At the 2007 VA examination, the scar was found to be 4.5 x 1.3 cm at its widest; and at the 2008 VA examination the scar measured approximately 4 x 1 cm. Clearly, both measurements show a scar that falls well short covering a 12 square inch area. It has also been found that the scar does not specifically limit function. For example, at the VA examination in 2007, the examiner stated that there was no functional limitation associated with the scar. VA treatment records have been reviewed, but they also fail to show that the scar either covers a sufficient area or limits function to the point that a rating in excess of 10 percent would be warranted; and while the Veteran has complained that the scar is tender and sensitive, she has not asserted that it actually limits functioning. As such, a rating in excess of 10 percent for the scar on the 1st MTP joint of the Veteran's left big toe is denied. A separate rating may be awarded for a foot injury under 38 C.F.R. § 4.71a, DC 5284, which assigns 10, 20, and 30 percent ratings depending on whether a foot injury is moderate, moderately severe, or severe respectively. In this case, the Veteran has voiced repeated complaints of pain regarding her feet and she has asserted that shoe inserts and shots have not alleviated her pain. She also reported taking ibuprofen on average three times per day as a result of the foot pain. Additionally, the Veteran reported at her VA examination in 2008 that she could not wear closed shoes as a result of the bunion on her left foot, and there was an indication that the range of motion in the Veteran's left foot was reduced when compared with the right foot. X-rays have also shown that the Veteran has degenerative arthritis in his left big toe, which the VA DPM linked to the bunionectomy. Given that the Veteran has arthritis in her foot, and considerable additional foot pain and limitation of motion following the bunionectomy, the Board concludes that an additional 10 percent rating should be assigned in recognition of a moderate left foot disability. The medical evidence does not however support a finding of moderately severe rating. By x-ray, the evidence show arthritis only in the Veteran's left big toe, at the site of the bunionectomy. Additionally, it was noted at the Veteran's 2008 VA examination that despite her foot problems she was nevertheless able to complete all of her activities of daily living. Furthermore, the examiner found no doctor prescribed bed rest in the past year. As such, a separate 10 percent rating, but no more, for the non-scar residuals from the bunionectomy is granted. Extraschedular The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra- schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria does not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, it is not disputed that the Veteran is limited as a result of her foot disabilities. However, the medical evidence fails to show anything unique or unusual about these disabilities that would render the schedular criteria inadequate. The Veteran's main foot symptom is pain, which is accounted for in the rating criteria. Furthermore, even if the symptoms were considered to render the schedular criteria inadequate, the Veteran has not been hospitalized as a result of her feet; and while she reported that she had to stop working at a store because the position involved too much standing without a break, this alone is not sufficient to constitute marked interference with employment, particularly in light of the fact that the examiner in 2008 concluded that the Veteran's foot disabilities did not impair her ability to complete her activities of daily living. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, an extraschedular rating is not warranted. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, however, the Veteran's claim was for service connection, which was granted. She then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law. With respect to the duty to assist, the relevant VA treatment records have been obtained. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but she declined. Accordingly, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A rating in excess of 10 percent for pes planus is denied. A rating in excess of 10 percent for the residual scar from the bunionectomy on the left foot is denied. A 10 percent rating for non-scar residuals of a bunionectomy on the left foot is granted subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs