Citation Nr: 1309102 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 07-17 190A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased initial rating for tension headaches, currently rated as 10 percent disabling. 2. Entitlement to an increased initial rating for bilateral bunions with plantar fasciitis and degenerative joint disease of the left first metatarsophalangeal (MTP) joint, rated as 0 percent disabling prior to March 30, 2010, and as 10 percent disabling since March 30, 2010. 3. Entitlement to an initial compensable rating for deviated nasal septum with allergic rhinitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from October 1980 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that, in pertinent part, awarded service connection and assigned 0 percent ratings for tension headaches, bilateral bunions with plantar fasciitis and degenerative joint disease of the left first MTP joint, and deviated nasal septum with allergic rhinitis, all effective October 1, 2005. The claims file was subsequently transferred to the RO in Roanoke, Virginia. A May 2007 rating decision increased the disability rating for tension headaches, from 0 percent to 10 percent, effective October 1, 2005. A September 2012 rating decision increased the disability rating for bilateral bunions with plantar fasciitis and degenerative joint disease of the left first MTP joint, from 0 percent to 10 percent, effective March 30, 2010. However, as these grants do not represent total grants of the benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran was scheduled to present testimony at a central office hearing before the Board in March 2008. However, the Veteran cancelled the hearing. As the record does not contain any additional requests for an appeals hearing, the Board deems the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.702 (2012). The Board remanded the claims for additional development in February 2009 and December 2011. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. Since April 23, 2010, the Veteran's tension headaches have been manifested by characteristic prostrating attacks occurring on an average of once a month over the last several months. 2. Prior to March 30, 2010, the Veteran's bilateral bunions with plantar fasciitis and degenerative joint disease of the left first MTP joint were manifested by subjective complaints of fleeting pain. There was objective evidence of decreased range of motion in the left MTP joint and bunions that did not require surgery, but there was no effusion, swelling, callosities, or laxity. X-ray examination demonstrates osteoarthritis of the first metatarsalphalangeal joint. These manifestations produce no more than mild bilateral foot disability. 3. Since March 30, 2010, the Veteran's bilateral bunions with plantar fasciitis and degenerative joint disease of the left first MTP joint have been manifested by subjective complaints of pain. There is objective evidence of moderate bilateral bunions that did not require surgery, but no decreased range of motion, swelling, effusion, laxity, callosities, or marked deformity. X-ray examination demonstrates osteoarthritis of the first metatarsalphalangeal joint. These manifestations produce no more than moderate bilateral foot disability. 4. The Veteran's deviated nasal septum was not due to trauma, and the allergic rhinitis has not been manifested by polyps or greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction of one side. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating for tension headaches have been met as of April 23, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.120, 4.124a, Diagnostic Code 8100 (2012). 2. The criteria for an initial compensable rating for bilateral bunions with plantar fasciitis and degenerative joint disease of the left first MTP joint prior to March 30, 2010 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5276, 5280, 5284 (2012). 3. The criteria for an initial rating in excess of 10 percent for bilateral bunions with plantar fasciitis and degenerative joint disease of the left first MTP joint since March 30, 2010 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5276, 5280, 5284 (2012). 4. The criteria for an initial compensable rating for deviated nasal septum with allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.97, Diagnostic Codes 6502, 6522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (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 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a July 2005 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate her claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A May 2009 letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in September 2012. However, the appeal arises from the initial awards of service connection. In Dingess, the Court held that in cases in which 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. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2012). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA and private medical records, VA examination reports, and the Veteran's statements. The Board also notes that actions requested in the prior remands have been undertaken. Instructions pertinent to the claims being decided included providing notice compliant with Dingess/Hartman v. Nicholson, issuing a supplemental statement of the case for the issue of increased rating for deviated nasal septum with allergic rhinitis, issuing a rating decision for the assignment of a 10 percent disability rating for bilateral bunions with plantar fasciitis and degenerative joint disease of the left first metatarsophalangeal joint, obtaining information from the Veteran regarding how her tension headaches have affected her employment (including time lost from work), scheduling the Veteran for current VA examinations, and obtaining a VA addendum opinion for the purpose of determining why the Veteran's headaches were considered to be prostrating. In response, the RO/AMC sent a May 2009 Dingess notification letter regarding the claim for increased initial rating. The RO/AMC also scheduled the Veteran for March 2010 and April 2010 VA examinations and subsequently obtained a February 2012 VA addendum opinion regarding why the Veteran's tension headaches were considered to be prostrating. Additionally, in December 2011 correspondence, the RO/AMC requested that the Veteran provide information regarding how her tension headaches had impacted her employment, to include any time lost or absences from work. Finally, the RO/AMC issued a September 2012 rating decision in which a 10 percent disability rating was granted for bilateral bunions with plantar fasciitis and degenerative joint disease of the left first metatarsophalangeal joint, effective March 30, 2010, and also issued a September 2012 supplemental statement of the case for the issue of deviated nasal septum with allergic rhinitis. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate her claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability evaluations 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; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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 the 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Tension Headaches Service connection for tension headaches was granted by the December 2005 rating decision, with a noncompensable rating assigned, effective October 1, 2005. Subsequently, a May 2007 rating decision increased the rating for tension headaches from 0 percent to 10 percent disabling, effective October 1, 2005. Under Diagnostic Code 8100, a 10 percent rating is warranted when the disability is productive of headaches with characteristic prostrating attacks averaging one in two months over last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). On VA examination in August 2005, the Veteran reported that her headaches came on without warning. She described feeling a tight sensation, like her head was being squeezed, and stated that there was a sharp component with bursts to her headaches. She indicated that her head would feel like it was tightening. She maintained that if she tried to go to sleep after taking some ibuprofen, the headaches would typically be gone by the next morning. She denied any preceding warnings or visual phenomena, but reported being very sensitive to light and noises. She complained that the headaches occurred about 10 times per month, usually more in the afternoon and evening. She believed that her headaches may have been stress-related, as she had been off work for the last month and had consequently only experienced one episode. The Veteran also reported having sharp pains in the biparietal area/occipital region that lasted only 30 to 60 seconds. She indicated that this type of headache did not interfere with her functioning and had reduced in frequency and severity. She stated that it currently may only happen once or twice a month. The examiner noted that in a 1986 neurological consultation for biparietal headaches lasting from 30 to 60 seconds, neurological examination had been normal, and the headaches were found to be possibly occipital neuralgia or related to C2 cervical nerve. The Veteran maintained that she had not sought further medical attention despite the frequency of the attacks because her work supervisor would just let her go home earlier if the headaches became severe. Examination revealed no occipital nerve tenderness or cognitive dysfunction. Neurological examination was otherwise normal. The examiner found that the Veteran likely had tension headaches with overlap to common migraine headaches. He noted that these headaches interfered with daily activities and that since the Veteran had been off work, there had been much improvement. The examiner also diagnosed the Veteran with brief parietal head pains that had previously been evaluated as likely occipital neuralgia. He found that these head pains were much improved and not interfering with functioning. At an April 23, 2010 VA examination, the Veteran reported that her headaches often began in the posterior neck and radiated to the posterior scalp. She stated that her headaches occurred about 6 to 7 times a month and could last several hours. She indicated that she took ibuprofen with some benefit. She maintained that the headaches could be accompanied by phonophobia, but not photophobia or nausea. She complained that the headaches were incapacitating. The Veteran reported that during the past 12 months, her headaches had occurred weekly, and that most attacks were prostrating. Examination revealed normal motor examination, sensation, position sense, fundoscopic examination, mental status, reflexes, and cerebellar examination. Cranial nerves were intact, and there was no evidence of chorea or carotid bruits. The examiner diagnosed the Veteran with chronic cervicogenic muscle tension headaches. He found that the Veteran's headaches had significant effects on her occupation and resulted in work absenteeism. In a February 2012 VA addendum, the April 2010 VA examiner reviewed the entire claims file and explained that the definition of a prostrating headache was a headache that was so severe that the person was unable to function and had to remain in bed. He indicated that the Veteran had described her headaches as prostrating such that she was unable to go to work. Additionally, he reported that in the year prior to the VA examination, the Veteran had missed approximately 10 weeks from work due to her headaches, although some of this absence was due to her back pain, and she did not distinguish how many days had been lost due to each diagnosis. The Veteran submitted a statement regarding the impact that her headaches had on her employment. She was unable to determine the exact number of days that she had not reported to work due to her headaches, but she reported that many days when she was sick, she still went to work because she was expected to be there and had responsibilities and obligations requiring her attention. Regarding her headaches, she maintained that she experienced them frequently. She indicated that some headaches were so debilitating that she had to put a pillow over her head and go straight to bed with all of the lights out and all sound silenced. She stated that these debilitating headaches generally occurred in the evenings, but they had also occurred at various times throughout the day. The Veteran also reported having some headaches that were more lingering in nature. In December 2011 while she was on leave from work, the Veteran had a headache that lasted 5 days. The headache only subsided after she was given an injection by her medical provider. The Veteran reported that in January 2012, she had a headache that started on January 19 at work and lasted through the weekend and the following Monday, January 23. She described the headache as starting with significant neck pain that radiated to her head. She stated that on Monday, January 23, she arrived to work late and left early because she had not been feeling well. Here, the evidence prior to April 23, 2010 does not show that the Veteran's headaches were characterized by prostrating attacks occurring on an average of once a month over the last several months. At her October 2005 VA examination, although the Veteran reported that her headaches used to occur about 10 times per month, she had only experienced one episode of headaches in the past 30 days. Additionally, the evidence did not suggest that the Veteran's headaches were prostrating. The Veteran described the headaches as tightening and indicated that if she went to sleep after taking some ibuprofen, the headaches would typically be gone by the next morning. The examiner found that although the Veteran's tension headaches interfered with daily activities, there had been much improvement in her condition. Therefore, the Board finds that an initial rating in excess of 10 percent is not warranted for the period prior to April 23, 2010. However, since April 23, 2010, the evidence shows that the Veteran's tension headaches have been manifested by prostrating attacks occurring on an average of once a month over the last several months. The Veteran reported at her April 2010 VA examination that her headaches occurred about 6 to 7 times a month and could last several hours, but that ibuprofen provided some benefit. She also complained that the headaches could be incapacitating, and that during the past 12 months, the headaches had occurred weekly, with most attacks being prostrating. In a February 2012 addendum, the April 2010 VA examiner confirmed that the Veteran suffered from prostrating headaches because she had described some of her headaches as being so severe that she was unable to go to work. The Veteran clarified in a subsequent statement that some of her headaches were so debilitating that she had to put a pillow over her head and go straight to bed with all of the lights out and all sound silenced. She reported having a headache lasting 5 days in December 2011 and a headache lasting 4 days in January 2012. Thus, the Board finds that the overall evidence shows that the Veteran has experienced prostrating headaches occurring on an average of once a month over the last several months, and an initial rating of 30 percent disabling is warranted since April 23, 2010. Regarding the rating criteria for a higher rating of 50 percent since April 23, 2010, the Board finds that the headache attacks have not been completely prostrating or prolonged. Although some headaches can last several days, the Veteran's headaches have been reported to generally last several hours. Additionally, they are not always completely prostrating because the Veteran indicated that many times when she was sick, she still went to work. Moreover, the Veteran has only reported that the headaches could be accompanied by phonophobia and photophobia, but no nausea, dizziness, or vertigo. The Board also finds that the evidence does not support a finding that the headaches are productive of severe economic inadaptability. The Veteran has continued to work through her headaches, although she does so with significant impairment in her normal functioning. She reported that many times when she felt sick due to her headaches, she still went to work because she was expected to be there and had responsibilities and obligations requiring her attention. Although the VA examiner indicated in a February 2012 addendum that the Veteran had missed approximately 10 weeks from work due to her headaches, he acknowledged that part of this absence was due to her back pain, and the Veteran had not distinguished how many days had been lost due to each diagnosis. The Veteran subsequently admitted that she was unable to determine the exact number of days that she had not reported to work due to her headaches because she continued to attend work even when she was sick. Thus, the Board finds that missing some work due to headaches and having decreased efficiency on other days does not equate to severe economic inadaptability. As such, the Board finds that the disability picture presented by the Veteran's service-connected tension headaches most closely approximates the criteria for a 30 percent rating under Diagnostic Code 8100 for the period since April 23, 2010. Because the lay and medical evidence, however, reflects that the disability is not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, an evaluation in excess of 30 percent is not warranted for any time since April 23, 2010. Reasonable doubt has been resolved in favor of the Veteran. 38 U.S.C.A. 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Bunions with Plantar Fasciitis and Degenerative Joint Disease of the Left First MTP Joint Service connection for bilateral bunions with plantar fasciitis and degenerative joint disease of the left first MTP joint was granted by the December 2005 rating decision, with a noncompensable rating assigned, effective October 1, 2005. Subsequently, a September 2012 rating decision increased the rating for bilateral bunions with plantar fasciitis and degenerative joint disease of the left first MTP joint from 0 percent to 10 percent disabling, effective March 30, 2010. 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 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). For the purpose of rating disability from arthritis, the interphalangeal, metatarsal, and tarsal joints are considered groups of minor joints. See 38 C.F.R. § 4.45. In addition to being diagnosed with bilateral bunions and degenerative joint disease of the left first MTP joint, the Veteran has been diagnosed with bilateral plantar fasciitis, a disability that is not specifically listed in the Rating Schedule. The Board has therefore evaluated the Veteran's disability under multiple diagnostic codes for analogous disabilities in which the functions affected and anatomical localization and symptoms are closely related to her current disability. The Veteran's disability is rated under Diagnostic Code 5276-5280. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5276 refers to acquired flatfoot. Diagnostic Code 5280 pertains to unilateral hallax valgus. Diagnostic Code 5276 provides for a 0 percent rating for unilateral or bilateral flatfoot, with symptoms relieved by built-up show or arch support. A 10 percent rating is warranted for moderate unilateral or bilateral flatfoot, which includes symptoms such as weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 30 percent rating is warranted for severe bilateral flatfoot, which includes symptoms such as objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral flatfoot, which includes symptoms such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). Diagnostic Code 5280 provides a 10 percent rating for unilateral hallux valgus if it is operated with resection of metatarsal head. A 10 percent rating is also warranted for severe hallux valgus, equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2012). Diagnostic Code 5284 provides for a 10 percent evaluation for a moderate foot injury. A 20 percent rating is warranted for a moderately severe foot injury. A 30 percent rating is warranted for a severe foot injury. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint or group of minor joints so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Diagnostic Code 5010, traumatic arthritis, directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5010. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1. 1. Prior to March 30, 2010 On VA examination in August 2005, regarding her bunions, the Veteran reported that she was given cushions for her toes in the 1980's to treat pain in her left great toe. She complained of currently suffering from pain in the left bunion every day or every other day. She denied any obvious triggers but reported that the toe could start throbbing whether she was weight bearing or sitting and watching television. She stated that she took no medication for her toe and that it had no effect on her job. She also indicated that she had not had surgery on the bunions. The Veteran indicated that she was able to run less frequently and less far due to the bunion. She reported that she tried to wear wide and comfortable shoes even though the pain could occur while wearing flip-flops. With respect to her plantar fasciitis, the Veteran stated that this had been diagnosed and treated with orthotics in 1997. She currently complained of foot pain along the arches but could not recall whether this was the same as the pain associated with the plantar fasciitis. She indicated that her foot pain was aggravated by prolonged standing. She stated that she took no medication for her plantar fasciitis and continued to wear orthotics if she wore closed shoes. Examination of the extremities revealed no clubbing, cyanosis, or edema. The Veteran had 2+ dorsalis pedis pulses and 1+ posterior tibial bilaterally. The skin of the feet had no breakdown, fissures, or ulceration, and the toenails appeared normal. There were bilateral hallux valgus deformities at the MTP joint, with the right side being more prominent than the left side. Neither MTP joint was tender to palpation. The Veteran had decreased range of motion in the left MTP joint with 55 degrees extension, 25 degrees flexion, and 30 degrees flexion of the distal interphalangeal joint. Range of motion was essentially normal on the right side. The Veteran's arches were slightly fallen bilaterally, but there was no tenderness along the arches. An x-ray of the left foot showed degenerative joint disease in the left first MTP joint. The Veteran was diagnosed with bilateral bunions that were worse on the left side. The examiner noted that there had been no surgery required for the bunions. The Veteran was also diagnosed with plantar fasciitis and left first MTP joint degenerative joint disease. A March 2009 VA medical report shows that the Veteran was treated for foot pain. She complained of ongoing bilateral foot pain that began nearly 9 months ago. She described the pain as sharp and agonizing and maintained that she could not bear weight when it occurred. She reported that the pain lasted for less than a minute, occurred nearly exclusively with standing, and was very debilitating. She stated that she experienced an average of 2 to 3 episodes of pain per week but that she did not have pain every week. Range of motion was intact, and there were no neurological deficits. The physician indicated that the Veteran had fleeting pains over the superior foot without significant loss of function and noted that the Veteran was ambulating well. The pain was also noted to occur only with standing, and not with ambulation, running, or jumping. Private medical records dated from November 2009 to February 2010 show that the Veteran received intermittent treatment for moderate bilateral hallux valgus and bilateral flexible flatfoot. She complained of experiencing fleeting foot pain that subsided after a couple of seconds. She reported that this pain only occurred at work and denied any associated swelling, redness, or heat. The Board finds that the Veteran's bilateral foot disability approximates no more than mild bilateral flatfoot. Although the Veteran complained of foot pain along the arches, the pain lasted for less than a minute, occurred nearly exclusively with standing, and occurred an average of 2 to 3 times per week but not every week. Indeed, a March 2009 VA physician found that the Veteran had only fleeting pains over the superior foot without significant loss of function and noted that she was ambulating well. The VA examination in August 2005 found no tenderness along the arches or any tenderness to palpation of the MTP joint. Additionally, the Veteran took no medication for her plantar fasciitis and continued to wear orthotics to treat her disability. A 10 percent evaluation is not warranted because although there is occasional pain on manipulation and use of the feet, there is no objective evidence of weight-bearing line over or medial to the great toe and inward bowing of the tendo achillis. Therefore, the Board finds that the Veteran's bilateral foot disability is more appropriately classified as mild bilateral flatfoot and an initial compensable rating is thus not warranted under Diagnostic Code 5276 for the period under consideration. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. With respect to the Veteran's bilateral bunions, the evidence does not show that the Veteran has undergone resection of the metatarsal head or that her bunions are so severe that they are equivalent to amputation of the great toe. Indeed, at her August 2005 VA examination, she reported that she took no medication for her toe and that she had not had surgery on the bunions. Although there was decreased range of motion in the left MTP, there was no tenderness in either MTP joint. Moreover, a March 2009 VA physician found that the Veteran only had fleeting pains over the superior foot without significant loss of function and noted that the Veteran was ambulating well. Similarly, private medical records indicate that the Veteran's hallux valgus was moderate, and that she only suffered fleeting foot pain that subsided after a couple of seconds and only occurred at work. The Board finds that the Veteran's bunions are not so severe as to be equivalent to amputation of the great toe. Thus, an initial compensable rating for the Veteran's foot disability is not warranted under Diagnostic Code 5280 for the period under consideration. 38 C.F.R. § 4.71a, Diagnostic Code 5280. As the Veteran has multiple foot disabilities present in each foot, her bilateral foot disability can also be rated as "foot injuries, other" pursuant to Diagnostic Code 5284. However, based upon the evidence of record, the Board finds that the Veteran's foot disability was no more than mild for the period under consideration. Although private medical records indicate treatment for "moderate" bilateral hallux valgus, the overall evidence shows that the Veteran's foot disabilities primarily manifested themselves in fleeting foot pain that did not affect the Veteran's ability to ambulate. Indeed, a March 2009 VA physician found that the Veteran's foot disability did not cause significant loss of function and that the fleeting foot pains occurred only with standing, and not with ambulation, running, or jumping. Additionally, although the August 2005 VA examiner noted some decreased range of motion in the left MTP joint, range of motion was essentially normal on the right side. Moreover, even though the Veteran's arches were slightly fallen bilaterally, there was no tenderness along the arches. Therefore, the overall evidence indicates that the Veteran's bilateral foot disability was no more than mild, and an initial compensable rating for the Veteran's foot disability is not warranted under Diagnostic Code 5284 for the period under consideration. 38 C.F.R. § 4.71a, Diagnostic Code 5284. There is x-ray evidence that demonstrates that the Veteran has osteoarthritis involving the first metatarsophalangeal joint of the left foot. However, the Board finds that the Veteran is not entitled to a separate compensable rating for her disability under the diagnostic criteria pertaining to arthritis. When degenerative arthritic changes are confirmed by x-ray evidence, a noncompensable evaluation is assigned unless there is objective evidence of arthritis involving two or more major or minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. The medical evidence shows that only one joint on the left foot is involved with arthritic changes. Thus, a separate compensable rating under the diagnostic codes pertaining to arthritis is not warranted because the osteoarthritis only affects one of the Veteran's joints. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Since March 30, 2010 At a March 2010 VA examination, the Veteran complained of pain in both feet. She was unable to stand or walk without pain for more than one hour. She had an apropulsive gait, but she did not walk with the aid of a crutch or cane. She continued to wear her orthotics in an attempt to minimize her pain. She reported that she experienced flare-ups during which she had increased pain without swelling of both feet. She stated that she was currently employed and had not missed any work due to her foot pathology. Examination revealed that the Veteran had normal subtalar motion, but the neutral position was in varus. This caused a compensatory moderate pronation on weight bearing. Tendo achillis was non-tender bilaterally, but there was bowing on weight bearing. On weight bearing, the Veteran had depression of the bilateral arches with talar bulging. There was pain on palpation at the talar navicular joint and along the course of the plantar fascia, but no pain at the insertion of the plantar fascia. First metatarsal and midtarsal joint motion were normal bilaterally. There was no pain on palpation of the midtarsal joint. There was evidence of moderate hallux abducto valgus deformity and drifting of hallux bilaterally. The Veteran also had a large painful exostosis at the first MTP medially that was painful to palpation. No edema or metatarsalgia was noted, and the Veteran had normal motor strength, muscle tone, and muscle bulk. The examiner diagnosed the Veteran with moderate bilateral pes planus, moderate bilateral hallux abducto valgus deformity, and mild bilateral plantar fasciitis. He found that the Veteran's pes planus would cause a decrease in shock absorption, and combined with her apropulsive gait, this would yield an increase in weakness and fatigue. He also noted that the Veteran had the diminished ability to stand or walk for prolonged periods of time. Regarding the DeLuca requirement, the examiner found that it would be speculative to comment further on the range of motion, fatigability, incoordination, pain, or flare-ups beyond what he had already described. The Board finds that the Veteran's bilateral foot disability approximates no more than moderate bilateral flatfoot. There is pain on manipulation and use of her feet as well as moderate loss of the plantar arches. A 30 percent evaluation is not warranted because there is no objective evidence of marked deformity, indication of swelling on use, or characteristic callosities. The VA examination in March 2010 found only moderate bilateral hallux abducto valgus deformity of the feet and some moderate pronation on weight bearing. The Veteran denied any swelling of the feet, even during flare-ups, and there was no evidence of callosities. Therefore, the Board finds that the Veteran's bilateral foot disability is more appropriately classified as moderate bilateral flatfoot and a rating higher than 10 percent is thus not warranted under Diagnostic Code 5276. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Regarding the diagnostic criteria for hallux valgus, the maximum rating under Diagnostic Code 5280 is 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5280. As the Veteran is already in receipt of a 10 percent rating for her foot disability for the period under consideration, a higher rating is not warranted under Diagnostic Code 5280. As the Veteran has multiple foot disabilities present in each foot, her bilateral foot disability can also be rated as "foot injuries, other" pursuant to Diagnostic Code 5284. However, based upon the evidence of record, the Board finds that the Veteran's foot disability was no more than moderate for the period under consideration. The Veteran reported that she had not missed any work due to her foot pathology. Examination revealed moderate pronation on weight bearing and pain on palpation at the talar navicular joint, the course of the plantar fascia and the left MTP joint medially, but metatarsal and midtarsal joint motion were normal bilaterally. The March 2010 VA examiner described the Veteran as having moderate bilateral pes planus, moderate bilateral hallux abducto valgus deformity, and mild bilateral plantar fasciitis. He also found that the Veteran's foot disability would yield an increase in weakness and fatigue and the diminished ability to stand or walk for prolonged periods of time. However, the Veteran did not walk with the aid of a crutch or cane and continued to treat her foot pain with just orthotics. Therefore, the evidence indicates that the Veteran's bilateral foot disability was no more than moderate, and an increased rating for the Veteran's foot disability is not warranted under Diagnostic Code 5284 for the period under consideration. 38 C.F.R. § 4.71a, Diagnostic Code 5284. There is x-ray evidence that demonstrates that the Veteran has osteoarthritis involving the first metatarsophalangeal joint of the left foot. However, the Board finds that the Veteran is not entitled to a separate compensable rating for her disability under the diagnostic criteria pertaining to arthritis. When degenerative arthritic changes are confirmed by x-ray evidence, a noncompensable evaluation is assigned unless there is objective evidence of arthritis involving two or more major or minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. The medical evidence shows that only one joint on the left foot is involved with arthritic changes. Thus, a separate compensable rating under the diagnostic codes pertaining to arthritis is not warranted because the osteoarthritis only affects one of the Veteran's joints. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Deviated Nasal Septum With Allergic Rhinitis Service connection for deviated nasal septum with allergic rhinitis was granted by the December 2005 rating decision, with a noncompensable rating assigned, effective October 1, 2005. The Veteran's disability is rated under Diagnostic Code 6502-6522. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 6502 refers to deviation of the nasal septum. Diagnostic Code 6522 pertains to allergic or vasomotor rhinitis. Under Diagnostic Code 6502, a 10 percent rating is warranted for deviated nasal septum only if it is due to trauma and there is 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502 (2012). Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction of one side. A 30 percent rating is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522 (2012). On VA examination in August 2005, the Veteran complained of nasal airway obstruction. The examiner noted that in 1981, the obstruction had been attributed to allergies, and the Veteran had undergone treatment with decongestants and antihistimines. The Veteran had desensitization after allergy testing in the 1990s, but she later discontinued treatment. She resumed treatment with antihistamines and steroid nasal sprays, and antibiotics were used when there was some evidence of infection involving the nose and sinuses. Previous radiologic studies were noted to have shown cystic lesions in the maxillary sinuses. Examination revealed a symmetrical face, normocephalic head, and normal ears, mouth, oropharynx, larynx, and neck. The nose had approximately 40 percent septal deviation to the left with the most deviation in the mid third of the septum. There were no exudates or hyperemia of either nasal passage. A CT scan of the sinuses showed retention cyst of the left maxillary sinus posteriorly, but the rest of the sinuses were devoid of any process. There was no bony destruction or air fluid level. The examiner diagnosed the Veteran with deviated nasal septum, allergic rhinitis, and cyst of the maxillary sinus. VA medical records dated from May 2006 to April 2008 show that the Veteran received intermittent treatment for allergic rhinitis and sinusitis. Her symptoms included sinus fullness, watery and itchy eyes, occasional thick mucous, nasal discharge, sneezing, and nasal passage blockage. There was no evidence of polyps or of 50 percent obstruction of the nasal passage on both sides or complete obstruction of one side. At an April 2010 VA examination, the examiner reviewed the entire claims file and noted that the Veteran had been treated for sinusitis over the course of several years and previoiusly had experienced nasal congestion and chronic sinusitis. She was currently taking guiafenisin, Allegra, nasal saline drops, and Singulair with improvement in her nasal congestion. She was also noted to have had an unsuccessful septoplasty in 2005 for her nasal congestion symptoms without relief of symptoms. The Veteran reported a history of perennial nasal allergies. She complained of currently suffering from watery eyes, rhinorrhea, and frequent breathing impairment. Examination revealed no evidence of sinus disease, speech impairment, or soft palate abnormality. There was 20 percent left nasal obstruction, and 20 percent right nasal obstruction. There was septal deviation, but it was not due to trauma. There were no nasal polyps, permanent hypertrophy of turbinates from bacterial rhinitis, rhinoscleroma, residuals of an injury to the pharynx, or any tissue loss, scarring, or deformity of the nose. The Veteran was diagnosed with allergic rhinitis and a mildly deviated septum. The examiner found that the disability caused significant effects at work because it resulted in increased absenteeism. However, the examiner noted that the 5 weeks of time lost from work during the last 12-month period were due to neck pain, back pain, and foot pain. Although the Veteran complained of nasal passage blockage at her various treatment sessions for allergic rhinitis, the objective findings of record do not indicate that the Veteran had nasal polyps or greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction of one side. Indeed, the April 2010 VA examiner specifically found no nasal polyps and only 20 percent left nasal obstruction and 20 percent right nasal obstruction. Therefore, an initial compensable rating for deviated nasal septum with allergic rhinitis is not warranted under Diagnostic Code 6522. 38 C.F.R. § 4.97, Diagnostic Code 6522. Moreover, the April 2010 VA examiner specifically found that the Veteran's septal deviation was not due to trauma. Accordingly, evaluation of the Veteran's disability pursuant to Diagnostic Code 6502 based on traumatic deviated nasal septum is not warranted. See 38 C.F.R. § 4.97, Diagnostic Code 6502. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Other Considerations The Board concludes that the medical findings on examinations are of greater probative value than the Veteran's allegations regarding the severity of her disabilities. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluations assigned and do not more nearly approximate the criteria for higher evaluations at any time during the relevant periods on appeal. See 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5010, 5276, 5280, 5284, 4.97, Diagnostic Codes 6502, 6522, 4.124a, Diagnostic Code 8100 (2012); see also Fenderson, supra. The Board has also considered whether the Veteran's tension headaches, bilateral foot disabilities, and deviated nasal septum with allergic rhinitis present exceptional or unusual disability pictures as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. The Veteran's 10 percent rating prior to April 23, 2010 for tension headaches contemplates her subjective complaints of pain and minimal functional impairment. Although the Veteran's tension headaches had been found to interfere with daily activities, there had been much improvement in her condition, and she had only experienced one headache in the past 30 days. Additionally, her headaches were not considered to be prostrating, as she was able to treat them by taking ibuprofen before going to bed. The Veteran's subjective complaints of tightening pain in her head were therefore included in the 10 percent rating. Similarly, the Veteran's 30 percent rating since April 23, 2010 for tension headaches contemplates her subjective complaints and functional impairment. Although the Veteran reported having 6 to 7 headaches a month, the overall evidence showed that the Veteran had experienced headaches that were considered to be prostrating on an average of only once a month over the last several months. Moreover, the Veteran was still able to go to work when she had headaches, so there was no evidence of severe economic inadaptability. The Veteran's complaints were therefore included in the increased 30 percent rating. Additionally, the Veteran's 0 percent rating prior to March 30, 2010 for her bilateral foot disability contemplated her subjective complaints of pain and minimal functional impairment. Other than fleeting pain and decreased motion in the left MTP joint, the Veteran had no other objective manifestations of her bilateral foot disability during this period, and therefore her subjective complaints of fleeting pain were included in the 0 percent rating. The Veteran's 10 percent rating since March 30, 2010 similarly included her subjective complaints of increased pain. There was evidence of moderate foot disability, including pain, moderate hallux valgus deformity, increased fatigue and weakness, and decreased ability to stand for prolonged periods of time. However, there was no evidence of limited range of motion or marked deformity, and the Veteran was able to ambulate without assistive devices. She also had not lost any time from work due to her foot pathology. Finally, the Veteran's 0 percent rating for her deviated nasal septum with allergic rhinitis contemplated her subjective complaints of nasal blockage and minimal functional impairment. There was no evidence that her deviated nasal septum had been due to trauma, and the allergic rhinitis was not manifested by polyps or greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction of one side. Therefore, the Veteran's subjective complaints were included in the 0 percent rating. Thus, the Veteran's disability pictures are contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. (CONTINUED ON NEXT PAGE) ORDER An initial 30 percent rating for tension headaches is granted, effective April 23, 2010. An initial compensable rating for bilateral bunions with plantar fasciitis and degenerative joint disease of the left first MTP joint prior to March 30, 2010 is denied. An initial rating in excess of 10 percent for bilateral bunions with plantar fasciitis and degenerative joint disease of the left first MTP joint since March 30, 2010 is denied. An initial compensable rating for deviated nasal septum with allergic rhinitis is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs