Citation Nr: 1315069 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 06-35 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for the service-connected left foot disability. 2. Entitlement to an initial evaluation in excess of 10 percent for the service-connected right foot disability. ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from June 2000 to October 2003, to include a tour of combat duty in Iraq, for which he earned the Combat Infantryman Badge (CIB). These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Albuquerque, New Mexico, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran later relocated, and jurisdiction over his claims was transferred to the Denver, Colorado, RO. It has since been transferred back to the Albuquerque RO. In pertinent part, the October 2004 decision, granted service connection for bilateral foot strain and assigned initial 10 percent evaluations effective from October 2003. The Veteran initially requested a hearing before a Veterans Law Judge, to be held at the RO. However, he withdrew this request in December 2006 correspondence. 38 C.F.R. § 20.704(e). In December 2008, March 2010, and August 2012, the Board remanded the issues to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development. All requested development has been satisfactorily accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2012, the Board denied service connection for left hip and leg disabilities, as well as higher initial evaluations for the service-connected lumbar strain, bilateral shoulder disabilities, and bilateral knee disabilities. These decisions are final, and no further question remains for consideration by the Board in connection with them. In the December 2008, March 2010, and August 2012 decisions, the Board referred a claim of service connection for left ear pain, raised in October 2006 correspondence, to the RO for appropriate action. A review of the claims file, to include electronic records maintained in the Virtual VA system, does not indicate any action has been taken on the referral. The matter is therefore again referred to the agency of original jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's left foot disability has not shown to be productive of moderately severe foot injury; while there has been evidence of bilateral pes planus, it has not been manifested by marked deformity, pain on manipulation of the feet, indication of swelling on use, or characteristic callosities. 2. Throughout the appellate period, the Veteran's right foot disability has not shown to be productive of moderately severe foot injury; while there has been evidence of bilateral pes planus, it has not been manifested by marked deformity, pain on manipulation of the feet, indication of swelling on use, or characteristic callosities. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial evaluation in excess of 10 percent for the service-connected left foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, including Diagnostic Codes 5276-5284 (2012). 2. The criteria for the assignment of an initial evaluation in excess of 10 percent for the service-connected right foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, including Diagnostic Codes 5276-5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in November 2003. This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for right and left foot disabilities. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board, which he declined. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information. 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 Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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. VA should interpret 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. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also 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 a veteran's disability. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. 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. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be 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 criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). At the outset, the Board would note that service connection was granted in an October 2004 rating decision for separate left and right foot strains, and a distinct 10 percent evaluation were assigned to each foot under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for moderate injury of the foot. Under that code, a 10 percent rating is assigned for moderate foot injuries; 20 percent for moderately severe; and 30 percent for severe. 38 C.F.R. § 4.71a. The March and April 2004 VA examinations noted some flattening of the foot arches and complaints of pain; foot strains were diagnosed. The evaluations considered the DeLuca factors in determining the extent of functional loss due to pain. VA treatment records show continued complaints of and treatment for foot pain over the years, with the application of various diagnoses. Plantar fasciitis, possible heel spurs, and pes planus were all considered at various times. At the May 2012 VA examination, the past diagnosis of strain was noted, but an updated diagnosis of bilateral pes planus was entered. The AMC, in readjudicating the claims following the March 2010 Board remand, recharacterized the service-connected left and right foot disabilities as pes planus, and continued the separate 10 percent evaluations for each foot, applying the criteria for Code 5276, pes planus. However, the Rating Schedule provides that pes planus, when present in each foot, must be rated as a single disability entity under Code 5276. 38 C.F.R. § 4.71a. A single 10 percent evaluation is assigned for moderate pes planus, whether unilateral or bilateral. A higher, 30 percent evaluation is not warranted unless severe bilateral pes planus is present. 38 C.F.R. § 4.71a , Code 5276. A change in diagnosis, applied criteria, and evaluation is certainly permissible where warranted by the evidence of record. However, in this instance that change would result in a reduction of the rating assigned for pes planus. Special due process protections are applicable to reductions. 38 C.F.R. § 3.105. Although it does not appear this particular reduction would result in any change in the overall level of compensation, the Veteran is still entitled to proper notice of the action and the opportunity to fully address VA's actions, which he was given following the August 2012 Board remand. See January 2013 SSOC. However, in the January 2013 SSOC, the RO determined that Diagnostic Code 5276 for flatfoot would not be used since in his case, it would result in a reduction; the Board agrees. In order to warrant a single 30 percent evaluation for bilateral, severe flatfeet, there must be objective evidence of marked deformity (pronation, abduction, etc), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. 38 C.F.R. § 4.71a. The May 2012 VA examination report reveals that while there was pain accentuated on use, there was no pain on manipulation of the feet, indication of swelling on use, characteristic calluses, or marked deformity. Hence, a single 30 percent rating for severe, bilateral flatfeet is not warranted. The Board has considered other applicable criteria for rating the feet in order to assign a higher rating; however, the Board observes that no other code provisions can be applied for a higher rating based on the evidence of record. There was no evidence of claw foot (Diagnostic Code 5278) or malunion of or nonunion of the tarsal or metatarsal bones (Diagnostic Code 5283). Id. Thus, the only remaining consideration is the rating criteria under Diagnostic Code 5284 for foot injuries. Id. (Note: the Veteran is already receiving the maximum under Diagnostic Codes 5277, 5279, 5280, 5281, and 5282). The pertinent facts found in the medical evidence of record are discussed below. Having carefully considered the Veteran's claim in light of the evidence of record and the applicable laws and regulations, and as outlined in the reasons and bases below, the Board finds that the currently assigned 10 percent ratings for right and left foot disabilities is appropriate and no higher rating is warranted under Diagnostic Code 5284 for foot injuries. 38 C.F.R. §§ 4.7, 4.71a. In this regard, the March 2004 general medical examination reveals the Veteran complained of foot pain at the arch and heels. He indicated it was constant, and worse as the day progressed. There was no edema or deformities. There was no pain on manipulation or range of motion. There was some tenderness to pressure over the arches and the medial/anterior heels. The April 2004 VA examination shows the Veteran complained of pain in the dorsum arches of the feet, which had persisted since his tour in Iraq. Both feet had slight flat arches. Range of motion of the feet and ankles was as follows: dorsiflexion 30 degrees; plantar flexion 45 degrees; inversion 30 degrees; and eversion 30 degrees. Motion was painless and no obvious deformities were noted. The Veteran was diagnosed with foot strain. VA outpatient treatment records dated between 2003 and 2007 were negative for complaints referable to the feet. In April 2008, the Veteran complained of pain in the arches aggravated by walking. There was no ligamentous laxity. Muscle strength was 5/5. The Veteran was said to have plantar fasciitis secondary to flexible flatfoot. He was given custom foot orthotics in May 2008. In January 2009 and July 2009, he simply complained of foot pain. Upon VA foot examination in May 2012, the examiner noted the Veteran had bilateral foot strain. The Veteran denied any foot symptoms as long as he was using the orthotics. He had no current treatment other than orthotics, which he indicated improved the bilateral foot pain. There was no evidence of Morton's neuroma or metatarsalgia. He did not have hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, or bilateral weak foot. X-rays showed mild pes planus. The Veteran's foot condition did not impact his ability to work. The findings of the VA pes planus examination are discussed above and are not pertinent to the rating criteria under Diagnostic Code 5284. In sum, the evidence shows no more than moderate foot injury of the bilateral feet. The Board is cognizant this rating criteria is used by analogy. 38 C.F.R. § 4.20. As explained above, the Veteran would be more properly rated under the criteria for flatfeet; however, that would result in a reduction of his rating. That being said, there has been no evidence of moderately severe foot injury of the bilateral feet to warrant an increased 20 percent rating for either foot. 38 C.F.R. § 4.71a. The Board has noted the Veteran's complaints of pain experienced in his feet and thus, considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a finding of moderately severe foot disability as to warrant a higher rating under Diagnostic Code 5284. "Staged" ratings are not warranted for any period of the appeal. 38 C.F.R. § 4.71a; see Fenderson, supra. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. Finally, the Board has considered whether extraschedular consideration is warranted. The symptoms and resulting impairment demonstrated with regard to the bilateral foot disabilities falls within the schedular criteria. In actuality, the Veteran has bilateral pes planus, which would be more properly rated under Diagnostic Code 5276. However, as explained above, this would result in a reduction of the Veteran's rating (to a single 10 percent rating) and not an increase as sought in the instant case. The rating criteria contemplates a higher rating for bilateral pes planus (a single 30 percent), but as explained below, there has been no objective evidence of the necessary criteria to warrant such a rating. See Diagnostic Codes 5276-5284. His disability has been rated by analogy. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The evidence of record shows the Veteran continued to work or attend school full time during the appeal. He has not made any assertions of unemployability during the appeal period. Hence, further consideration of TDIU is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for the service-connected left foot disability is denied. Entitlement to an initial evaluation in excess of 10 percent for the service-connected right foot disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs