Citation Nr: 1126783 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 08-01 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an increased rating for bilateral pes cavus (claw foot) with Achilles tendonitis (bilateral foot disorder), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from June to November 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, that continued the assigned 30 percent rating. The Veteran indicated on his substantive appeal (VA Form 9) that he desired a Travel Board hearing, but in January 2008, through his representative, the Veteran withdrew his request for a Board hearing. The January 2008 correspondence meets all requirements for a proper withdrawal. See 38 C.F.R. § 20.704(e) (2010). The issue of entitlement to a total disability evaluation on the basis of individual unemployability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The preponderance of the evidence shows that during the current rating period the Veteran's bilateral foot disorder has not manifested with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity. CONCLUSION OF LAW The requirements for an evaluation higher than 30 percent for bilateral foot disorder are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5278 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. Prior to issuance of the decision appealed, VA notified the Veteran in March 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and notice of how disability ratings and effective dates are assigned. The Board finds the letter fully time- and content-compliant. See 38 C.F.R. § 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. 38 C.F.R. § 3.159(c). The Veteran was provided the opportunity to present pertinent evidence and testimony at all stages of the process. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Thus, the Board may address the merits of the appeal. Id. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nonetheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. § 4.45. Analysis Historically, service treatment records noted the Veteran was diagnosed with achillis tendonitis and x-rays showed claw foot. A March 2002 rating decision granted service connection for claw foot with pain and achillis tendonitis and assigned an initial 30 percent rating, effective June 2001. VA received the Veteran's current claim for an increased rating in February 2007. The Veteran's right foot disorder is rated under Diagnostic Code 5278. See 38 C.F.R. § 4.71a. To warrant a 50 percent, and the maximum, rating, the rating criteria require marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity. Id. The April 2007 examination report reflects that the Veteran reported constant pain at the top of and under his feet at the balls, and in the big toe. The Veteran previously worked various jobs, to include lawn maintenance and snow blowing, but he had been unemployed since March 2004. The Veteran also reported that his foot pain and discomfort had increased since his last examination in March 2004, and that his ankles felt like they were sprained. He told the examiner that he spent less time on his feet, and he no longer used a ladder because he did not trust his feet when descending. The Veteran reported that he could no longer spend a lot of time on his feet. He stated that if there was an errand he could do, he did it; and, if lucky, he did his or his girlfriend's lawn. The Veteran described his activity level as pretty limited. The Veteran reported symptoms of pain, weakness, stiffness, some swelling, heat, and redness, left worse than right. The Veteran noted that the redness and heat did not occur at the same time. He also reported lack of endurance and fatigability. The Veteran reported occasional shooting pain when at rest and also when standing. He noted he could walk once around the block-about 0.1 of a mile, and tried to limit his standing to 15 minutes or so. On a scale of 1 to 10 the Veteran described his baseline pain as 5/10, and at worse 7-8/10. The Veteran denied use of a cane, crutches, or corrective shoes, but he had worn heel lifts since February 2007 with minimal relief of foot pain. Physical examination of the Veteran's feet revealed flat foot with high arches and claw foot bilaterally. The Veteran complained of pain on manual movement of the toes bilaterally, and he stated that foot pain started with range of motion of the ankle. Range of motion of the ankles on plantar flexion was 0 to 10 degrees with pain at 10 degrees, and 0 to 5 degrees on dorsiflexion with pain at five degrees. The Veteran told the examiner he had severe pain with minimal range of motion, and the examiner did observe facial grimaces. The examiner observed that the Veteran's pain would result in an additional two to five degrees of range of motion on plantar and dorsiflexion. There was no evidence of edema, instability, or weakness. The Veteran complained of tenderness on all palpation. The examiner noted mild heel calluses bilaterally but no breakdown or shoe wear pattern that indicated abnormal weight bearing. The skin was intact with no vascular changes noted. The Veteran was able to keep his back erect when standing, squatting, and rising on his toes, but the movements were difficult for him, and he had to hold on for support while doing them. The Achilles tendons were in good alignment. There was no evidence of valgus alignment or appreciable hallux valgus, and there was no gross evidence of forefoot/midfoot malalignment. The examiner noted a February 2007 podiatry entry that noted palpable masses at the Achilles tendon, and a pop to insertion of the Achilles tendon. X-rays were read as having shown no evidence of acute fracture or dislocation, but an incidental finding of a plantar spur of the right foot was noted. The examiner opined the spur likely was associated with the service-connected foot disorder and noted the Veteran's bilateral foot disorder was of moderate to moderately severe severity. The Board notes that the objective findings on clinical examination show the Veteran's primary functional loss to be constant bilateral foot pain. Significantly, however, few if any of the symptoms of a 50 percent rating were revealed by the examination. The examiner did not note contraction of the plantar facia with dropped forefoot or marked varus deformity. Other than the right foot plantar spur, no painful calluses were noted. The examiner did not specify the degree of hammer toe, but the Board notes that earlier VA examination reports note only the left second digit to manifest as hammer toe, and the Veteran does not contend that this has changed. The rating criteria require hammer toes of all toes bilaterally. In light of these factors, the assigned 30 percent rating compensates the Veteran for his functional loss due to bilateral foot pain. The projected additional loss of range of motion due to pain would not approximate a rating higher than 30 percent, as there is no evidence of ankylosis. See, e.g., 38 C.F.R. § 4.71a, Diagnostic Code 5270. Hence, the Board finds the preponderance of the evidence shows the Veteran's bilateral foot disorder has continued to more nearly approximate the assigned 30 percent rating. 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5278. The benefit sought on appeal is denied. Extraschedular The Board acknowledges the Veteran's assertions that his bilateral foot disorder has significantly impacted his ability to work. This evidence raises the issue of extraschedular consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008) (Board must discuss whether referral for extraschedular consideration is indicated where raised by the evidence of record). In exceptional cases, where the rating schedule is deemed inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the applicable criteria, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). The Board is precluded from granting an increased rating on an extraschedular basis in the first instance. 38 C.F.R. § 3.321(b)(1); Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board may, however, determine whether a particular claim merits submission for an extraschedular evaluation. Brannon v. West, 12 Vet. App. 32, 35 (1998); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Further, where the RO has considered the issue of an extraschedular rating and determined it inapplicable, the Board is not specifically precluded from affirming a RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) for an extraschedular rating. Bagwell, 9 Vet. App. at 339. Before the Board may refer a case for extraschedular consideration, however, there first must be a finding that the Veteran's disability picture is exceptional. To do so, 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. Under the approach prescribed by VA, 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, therefore, adequate, and no referral is required. See Thun v. Peake, 22 Vet. App. 111 (2008). Applying the above criteria, the Board finds that the rating criteria describe both the disability of the Veteran's bilateral foot disorder and the various degrees of severity, which means the rating criteria anticipate the Veteran's disability. This means the Veteran's bilateral foot disorder is not exceptional. In the absence of an exceptional disability picture, there is no factual basis for referral for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). Hence, the assigned 30 percent rating compensates the Veteran, as far as is practical, for his impairment in earning capacity. See 38 C.F.R. § 4.1. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to a rating higher than 30 percent for bilateral foot disorder is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs