Citation Nr: 1314410 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 08-01 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a rating in excess of 30 percent for bilateral pes cavus with Achilles tendonitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 1970 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. A Board decision in July 2011 denied an increased rating for the Veteran's bilateral foot disability. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in January 2012, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. In August 2012, the claim was remanded to afford the Veteran a new VA examination. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran requested a hearing before a Decision Review Officer, but withdrew his request for a hearing through written correspondence, dated in January 2008. The Veteran having withdrawn his hearing request, the Board will proceed to adjudicate the case based on the evidence of record. FINDING OF FACT The bilateral pes cavus with Achilles tendonitis has not resulted in marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, or marked varus deformity; neither foot has resulted in moderately severe disability. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for bilateral pes cavus with Achilles tendonitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Codes (DC) 5278, 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was notified in a letter dated in March 2007 regarding the type of evidence necessary to establish his claim. He was instructed that to show entitlement to an increased evaluation for his service-connected disability, the evidence must show that the disability has gotten worse. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the letter informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Regarding VA's duty to assist, VA obtained the Veteran's post-service medical records and also secured examinations in furtherance of his claim. Pertinent VA examinations were obtained in April 2007 and September 2012. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). As discussed in detail below, the Board concludes that a staged rating is not warranted. In this case, the Veteran has been diagnosed with bilateral pes cavus with Achilles tendonitis. This service-connected disability is currently rated as 30 percent disabling under 38 C.F.R. § 4.71a, DC 5278, which evaluates impairment from acquired claw foot (pes cavus). Pursuant to DC 5278, a 30 percent rating is warranted for bilateral claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads. 38 C.F.R. § 4.71a, DC 5278 (2012). A 30 percent rating is also warranted for unilateral claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. Id. A 50 percent rating is warranted for bilateral claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. Id. Impairment from other foot injuries is evaluated under 38 C.F.R. § 4.71a, DC 5284. Pursuant to DC 5284, a 10 percent rating is warranted for moderate disability. 38 C.F.R. § 4.71a, DC 5284 (2012). A 20 percent rating is warranted for moderately severe disability. Id. A 30 percent rating is warranted for severe disability. Id. Actual loss of use of the foot warrants a 40 percent rating. Id. Based on the evidence of record, the Board concludes that a rating in excess of 30 percent is not warranted at any time during this appeal period. The pertinent evidence of record fails to show that the Veteran's bilateral foot disability meets the rating criteria for a higher rating under the applicable diagnostic codes, to include consideration of whether a higher rating is warranted by evaluating each foot separately and then combining the ratings. The evidence fails to show that the Veteran's bilateral pes cavus with Achilles tendonitis symptoms include marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities and marked varus deformity such that a higher rating of 50 percent under DC 5278 is warranted. Throughout this appeal, the Veteran's pertinent treatment records reflect his continuous complaints of pain. At an April 2007 VA examination, the Veteran reported being unemployed since 2004. He had constant foot pain. He was limited in activities such as no longer using a ladder; he spent less time on his feet. However, he could run errands if not labor intensive. His feet would bother him walking around the block, perhaps one tenth of a mile. The Veteran reported symptoms such as pain, weakness, stiffness, some swelling, heat, redness, fatigability and lack of endurance, left greater than right. His feet did not get hot swollen or red at the same time. He had shooting pain at rest and standing, worse than when sitting. He could not walk more than ten to 15 minutes. Flare-ups of joint disease increased pain to seven to eight out of ten (7-8/10) with baseline pain of 5/10. Flares-ups occurred about two times a week and lasted most of the day. He was almost immobilized during flare-ups. He denied crutches, brace, cane and corrective shoes; he wore heel lifts with minimal relief. He had to slow down all day and stop and rest. Physical examination revealed reports of pain across the tops of feet bilaterally; pain with manual movement of the digits bilaterally; and pain with range of motion of the ankle. He had ten degrees of plantar flexion with pain at ten degrees and five degrees of dorsiflexion with pain at five degrees. The Veteran reported severe pain with minimal range of motion. After repetition, range of motion was limited two to five degrees in plantar flexion and dorsiflexion due to pain. There was no evidence of edema, instability or weakness. He had tenderness with all palpation. The Veteran's gait was slow and deliberate; there were no functional limitations on standing and walking. He had mild heel callouses bilaterally with no breakdown or unusual shoe pattern that would indicate abnormal weight bearing. Skin was intact with no vascular changes noted. He was able to keep his back erect with standing, squatting and rising on toes and heels; those were difficult for him, but he was able to do them if he held on for support/balance. The Veteran had bilateral high arches and claw foot that was not correctable. Achilles tendons were in good alignment; no evidence of valgus alignment; no gross evidence of forefoot/midfoot malalignment; and no appreciable hallux valgus. The Veteran was diagnosed with pes cavus and Achilles tendonitis; and large plantar spur on the right foot, which was at least as likely as not secondary to the pes cavus. The examiner opined that the Veteran had overall moderate to moderately severe functional impairment as reported by the Veteran. The results of this examination clearly show that the Veteran does not meet the criteria for a 50 percent rating under DC 5278. Symptoms such as marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities and marked varus deformity were not shown. Although the Veteran did have callosities, they were not opined to be very painful. There is no indication that the Veteran had any contraction of plantar fascia, let alone marked contraction. The examination report also does not show hammer toes and marked varus deformity. As such, the criteria for a 50 percent rating under DC 5278 have not been shown at this examination. At a September 2012 VA examination, the Veteran was not diagnosed with pes cavus; rather, he was diagnosed with metatarsalgia and osteoarthritis of the left first metatarsophalangeal (MTP) joint. The Veteran reported managing pain by frequent changing of shoe wear and use of a cane; he had been using a cane for one year. The examiner specifically found that the Veteran did not have Morton's neuroma, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, any other foot injuries or bilateral weak foot. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. The examiner opined that the current nature and severity of the Veteran's service-connected pes cavus with Achilles tendonitis could not be addressed as the Veteran did not have objective medical evidence supporting the diagnosis of pes cavus with Achilles tendonitis. The examiner further opined that the physical examination did not demonstrate flatfoot findings, acquired claw foot findings, malunion or nonunion of tarsal or metatarsal bones with actual loss of use of the foot or foot injuries with actual loss of use of the foot. The Veteran's foot condition impacted his ability to work. He was last self-employed in 2004 doing landscape maintenance. He stated that his ankle/foot conditions prevented him from standing for the period of time required to work. The examiner opined that the current nature, severity and symptomatology of the Veteran's service-connected pes cavus with Achilles tendonitis could not be addressed as the Veteran did not have objective medical evidence supporting the diagnosis of pes cavus with Achilles tendonitis. The examiner further opined that the Veteran did not have physical examination findings showing pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. There were no physical findings showing the symptoms warranting a 50 percent rating for bilateral pes cavus discussed above. There were no physical findings showing malunion or nonunion of tarsal or metatarsal bones with actual loss of use of the foot; and no physical findings showing foot injuries with actual loss of use of the foot. In opining as to whether the Veteran had moderate, moderately severe or severe residuals of foot injuries, the examiner reported that the Veteran did not sustain any clinically significant or relevant foot injuries during his active military service based upon a reasonable degree of medical certainty and probability and thus did not have any residuals. Clearly, the results of this examination also fail to show that the Veteran meets the criteria for a rating in excess of 30 percent. The physical findings shown on this examination do not indicate symptoms such as marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities and marked varus deformity. The examiner specifically noted that physical examination did not reveal such findings. Therefore, a higher 50 percent rating under DC 5278 is not warranted. As both examinations as well as the pertinent treatment records fail to show that a rating in excess of 30 percent under DC 5278 is warranted, the Board will look to other diagnostic codes to determine whether a higher rating can be granted. Specifically, the Board will consider whether an increased rating for other foot disabilities under DC 5284 is warranted. The pertinent medical findings shown on appeal do not support a rating in excess of 30 percent under DC 5284. As noted above, the only higher rating pursuant to that diagnostic code is a 40 percent rating for actual loss of use of the foot, which has not been shown at any time during this appeal period. The September 2012 examiner specifically found that the Veteran did not have such symptom. DC 5284 provides for a 30 percent rating for severe disability. In this case, the pertinent medical evidence shown in the treatment records and on examinations fail to show that the symptomatology associated with each foot equates to severe disability. Rather, the combined impairment from both feet approximates severe disability. Although "severe" is not defined in the rating criteria, a review of what warrants an increased rating of 30 percent for unilateral foot disabilities under other diagnostic codes is particularly instructive. For a 30 percent rating for unilateral flatfoot, the disability must be pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DCs 5276, 5278. The pertinent medical findings shown during this appeal fail to show that the Veteran has such symptoms. As already noted above, a 30 percent rating for unilateral pes cavus requires marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. The Board has already discussed that the Veteran does not meet these criteria. Therefore, the evidence fails to show that the symptoms associated with each foot meet the criteria for a 30 percent rating for severe disability under DC 5284. In other words, although "severe" is not defined, as the Veteran's pes cavus with Achilles tendonitis has not caused symptoms that would warrant a higher rating under diagnostic codes that list symptoms indicative of 30 percent ratings for unilateral foot disabilities, the Board concludes that a rating of 30 percent rating for each foot is not warranted. The evidence also does not show that separate ratings of 20 percent, which would combine to 40 percent, see 38 C.F.R. § 4.25 (2012), are warranted. A rating of 20 percent under DC 5284 contemplates moderately severe disability. "Moderately severe" is also not defined in the rating criteria. However, a review of what warrants a rating of 20 percent for unilateral foot disabilities under other diagnostic codes is particularly instructive. For a 20 percent rating for unilateral flatfoot, the disability must be severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use and characteristic callosities. A 20 percent rating for unilateral acquired claw foot requires that all toes tend to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia and marked tenderness under metatarsal heads. 38 C.F.R. § 4.71a, DCs 5276, 5278. The pertinent medical findings shown throughout the treatment records as well as at VA examinations discussed above indicates that the Veteran does not have symptoms such as that contemplated for by a 20 percent rating for unilateral foot disabilities under DCs 5276 and 5278. In other words, although "moderately severe" is not defined, as the Veteran's bilateral pes cavus with Achilles tendonitis has not caused symptoms that would warrant a higher rating under diagnostic codes that list symptoms indicative of 20 percent ratings for unilateral foot disabilities, the Board concludes that separate ratings of 20 percent for each foot is not warranted. The Board acknowledges that the April 2007 examiner opined that the Veteran had overall moderate to moderately severe functional impairment. However, the examiner did not indicate that each foot had such impairment; rather, by using "overall" the examiner's opinion seems to indicate that the combined symptoms from both feet together caused such impairment. In any event, the Board reiterates that the symptoms indicative of 20 percent ratings for unilateral foot disabilities were not shown. Therefore, a rating in excess of 30 percent under DC 5284 by combining separate 20 percent ratings for each foot is not warranted. As for other diagnostic codes used to evaluate foot disabilities, the evidence fails to show flatfoot or symptoms such as that evaluated by DC 5276. The evidence also does not show weak foot, rendering DC 5277 inapplicable. The Veteran has not been shown to have Morton's disease, so a rating under DC 5279 is not warranted. Although the September 2012 examiner diagnosed the Veteran with metatarsalgia, they specifically found that the Veteran did not have a Morton's neuroma. The evidence also fails to show hallux valgus, hallux rigidus, hammer toe and malunion or nonunion of tarsal or metatarsal bones. Therefore, ratings under DCs 5280, 5281, 5282 and 5283 are not for application. As such, the Board concludes that a rating in excess of 30 percent under other diagnostic codes available to evaluate foot disabilities is not warranted. 38 C.F.R. § 4.71a, DCs 5276, 5277, 5279, 5280, 5281, 8282 and 5283 (2012) In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted. Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating under all of the diagnostic codes use to evaluate foot disabilities, to include separate ratings for each foot, based on limitation of motion is not warranted. See 38 C.F.R. § 4.40 (a little used part of the musculoskeletal system due to pain may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like). None of the VA treatment records or examinations shows that the Veteran had evidence of disuse such as muscle atrophy. The April 2007 examination shows that there was no breakdown or unusual shoe pattern that would indicate abnormal weight bearing; the Veteran's skin was intact. The September 2012 examination did not indicate any symptoms indicative of disuse of the feet. Furthermore, the April 2007 examiner opined as to the functional impairment caused by the Veteran's bilateral foot disability, which as discussed above, is adequately compensated for in the currently assigned 30 percent rating. Accordingly, the criteria for a rating in excess of 30 percent have not been met. 38 C.F.R. § 4.71a, DCs 5278, 5284. For these reasons, the Board finds that the criteria for a rating in excess of 30 percent for bilateral pes cavus with Achilles tendonitis have not been met. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's bilateral foot symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's bilateral foot disability has resulted in interference with employment or activities of daily life which would a warrant rating in excess of 30 percent for this disability. Moreover, as the evidence does not show that his disability alone renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this regard, although the Veteran's reports to the September 2012 examiner indicate that he believed he was unemployable due to his service-connected disability, the Board observes that the Veteran has other disabilities such as gout and questionable alcohol induced neuropathy causing foot pain. See, e.g., May 2011 treatment record. In other words, although the Veteran reported being unemployed due to ankle/foot conditions, the medical evidence fails to show that he is unemployable solely due to his service-connected bilateral foot disability. Therefore, the Board reiterates that a claim for a total disability rating based on individual unemployability has not been raised. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 30 percent for bilateral pes cavus with Achilles tendonitis is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs