Citation Nr: 1317686	
Decision Date: 05/30/13    Archive Date: 06/06/13

DOCKET NO.  08-32 792	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to an initial compensable disability rating for a low back disability prior to February 2012 and a disability rating higher than 10 percent thereafter.

2. Entitlement to a disability rating higher than 20 percent for radiculopathy in the right leg.

3. Entitlement to a separate compensable disability rating for right plantar fasciitis.

4. Entitlement to a separate compensable disability rating for degeneration of the talonavicular joint of the right foot.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from August 1991 to September 1995 and from February 2004 to April 2005, as well as additional service in the California National Guard, and was awarded the Purple Heart Medal.

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in January 2007 and July 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland.

In May 2011, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the claims file.

This case was previously before the Board in November 2011 and in September 2012, when it was remanded for further development, including obtaining additional VA examinations and opinions.  As the requested development with regard to the low back disability and radiculopathy has been completed, no further action to ensure compliance with that remand directive is required.  However, as the examination and opinion with respect to plantar fasciitis and degeneration of the talonavicular joint was inadequate, those claims must again be remanded for compliance with the prior directives.  Stegall v. West, 11 Vet. App. 268 (1998).

The issue of entitlement to service connection for a left foot disability has been raised by the record, as noted in both previous Remands, but has not yet been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action.  

The issues of entitlement to separate compensable disability ratings for plantar fasciitis of the right foot and degeneration of the right talonavicular joint are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. Prior to February 10, 2012, the Veteran's low back disability was manifested by painful motion and occasional pain flare-ups with evidence of a ruptured disc at L5-S1; limitation of forward flexion to less than 85 degrees, combined range of motion of the thoracolumbar spine of less than 235 degrees, or muscle spasm or guarding not resulting in abnormal gait or abnormal spinal contour, or loss of vertebral body height of more than 50 percent, and incapacitating episodes were not shown.

2. For the period from February 10, 2012, the Veteran's low back disability was manifested by forward flexion of the thoracolumbar spine of at least 80 degrees; limitation of flexion to 60 degrees or less, combined range of motion 120 degrees or less, muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, and incapacitating episodes were not shown.

3. Throughout the appeal period the Veteran's right lower extremity radiculopathy is shown to be no more than moderate.


CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for a low back disability prior to February 10, 2012 and higher than 10 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2012).

2. The criteria for an initial rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8520 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a 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 and 3.326(a) (2012).

Duty to Notify

Proper notice from VA must inform the claimant of any information and medical or lay 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.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's claims for increased ratings arise from an appeal of the initial evaluation following the grant of service connection for the disabilities on appeal.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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).  Therefore, no further notice is needed under VCAA.

Here, the Veteran was sent a letter in August 2006 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record, including testimony provided at a May 2011 hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's September 2012 remand, VA provided the Veteran with a medical examination in December 2012 to address the low back disability and resulting right leg radiculopathy.  This examination contained all information needed to rate the disability.  Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints.  Moreover, the VA examiners performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale.  Therefore, this examination is adequate for VA purposes.  Thus VA has complied with the September 2012 remand instructions with respect to those issues.  As discussed above, the examination with respect to the right foot plantar fasciitis and degeneration of the right talonavicular joint was inadequate and those claims are remanded below.  Stegall v. West, 11 Vet. App. 268 (1998).

The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

At his hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination.  Ultimately the claim was remanded for a new examination.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant.

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Assigning Disability Ratings

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  In this instance, staged ratings were assigned by the RO with respect to the Veteran's low back disability.  After reviewing the evidence, the Board finds the staged ratings appropriate and will not alter them.

Rating Spinal Disabilities

Disabilities of the spine are rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a.

The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.

The criteria for rating a disability of the spine are to be applied regardless of the presence or absence of symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  38 C.F.R. § 4.71a.

The IVDS Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.

Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 must be considered.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45. 

Radiculopathy

The Veteran's radiculopathy of the right lower extremity or sciatica has been assigned a 20 percent rating under Diagnostic Code 8520, 38 C.F.R. § 4.124a (2012). 

Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, which pertains to paralysis of the sciatic nerve, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent disability rating is assigned for moderate incomplete paralysis; a 40 percent disability rating is assigned for moderately severe incomplete paralysis; a 60 percent disability rating is assigned for severe incomplete paralysis with marked muscular atrophy; and an 80 percent disability rating is assigned for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  See 38 C.F.R. § 4.121a, Diagnostic Code 8520.

The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a. 

The Board notes that words such as "slight," "moderate," and "severe" are not defined in the Rating Schedule.  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).  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. 

Facts

The Veteran applied for service connection for a low back disability after separation from service and the claim was granted, effective August 2006.  A noncompensable or 0 percent disability rating was assigned for low back disability prior to February 10, 2012, with a 10 percent disability rating assigned thereafter.  In addition, the Veteran was granted a separate 20 percent disability rating for radiculopathy in the right lower extremity effective February 10, 2012.  The issue presently before the Board is the propriety of the assigned ratings for these disabilities.

On August 2006 VA examination, the Veteran reported developing low back pain during active duty in 1991, with no specific precipitating injury.  He reported occasional flare-ups of dull aching pain due to overuse and heavy lifting or bending, but said he was able to carry out his normal activities.  He denied experiencing any radiating pain in the buttocks, but did report occasional cramping in the calves.  On physical examination he had normal gait and carriage and there was no obvious spasm or deformity in the back.  He reported an area of occasional dull aching pain, localized to the midline in the lumbar region, without radiation into the lower extremities.  He was able to bend forward and touch his toes and he had straight leg raising to 65 degrees bilaterally.  A contemporaneous X-ray showed no significant bony or soft tissue abnormalities.  The examiner diagnosed chronic low back strain.

On February 2008 VA examination, the Veteran reported experiencing back pain in service with no acute injury, as well as intermittent radiculopathy down the right leg from the buttock to the knee and sometimes the great toe.  He had moderately severe pain flare-ups with sitting and bending, as often as two or three times per week.  He has never had a time with no pain, and has not had any bowel or bladder impairment.  X-rays from August 2006 were reviewed and a loss of lordotic curve was noted at that time.  Physical examination showed normal bony alignment and the Veteran walked with a normal gait.  There was no paravertebral spasm or tenderness.  Range of motion testing showed forward flexion to 85 degrees, extension to 30 degrees, lateral bending and rotation to 30 degrees bilaterally.  Reflexes were normal and there was no loss of sensation.  Repetitive motion showed a resulting loss of 5 degrees after three repetitions due to pain, with no weakness, stiffness, swelling, heat, redness, fatigability, or lack of endurance shown.  An MRI in March 2008 showed a small broad-based central disc protrusion at L5-S1 and the examiner stated that any such finding was a result of the back injury in service.  The Veteran did not report any incapacitating episodes or impact on his ability to work.

At the May 2011 hearing, the Veteran testified that because of his work as a corrections officer he could not take any painkillers stronger than Tylenol or Ibuprofen for his back pain.  He tried to keep up with exercises as recommended by his doctors but had some limitations because of pain.  His pain also affected his ability to interact with his teenage sons.  He estimated that he had missed on average seven to ten days of work per month in the previous year largely as a result of his back pain.

On February 2012 VA examination, the examiner noted diagnoses of displacement of lumbar disc at L5-S1 and lumbar radiculopathy.  The Veteran complained of pain in the low back radiating down his right buttock and leg to the side of his calf.  He did not have bowel or bladder incontinence but had suffered occasional episodes of erectile failure.  He had flare-ups of pain about twice a week, usually after physical activity.  Range of motion testing showed flexion to 90 degrees with pain at 80 degrees, extension to 30 degrees with pain at 25, and lateral flexion and rotation to 30 degrees bilaterally with no evidence of pain.  After repetitive motion, the Veteran's forward flexion was limited to 80 degrees.  Functional loss or impairment of the thoracolumbar spine included less movement than normal, weakened movement, excess fatigability, and pain on movement.  There was no evidence of spasm and he had normal muscle strength and normal reflexes.  He displayed decreased sensation in the right thigh and knee, as well as the lower leg and ankle, and had a positive straight-leg raising test on the right side.  Other symptoms of radiculopathy in the right leg included moderate intermediate pain, mild paresthesias, and mild numbness, all indicative of moderate radiculopathy in the right-sided sciatic nerve.  There were no episodes of incapacitation and he did not require any assistive devices.

Analysis

With respect to the Veteran's low back disability, the Board finds that the disability ratings assigned are appropriate.  Specifically, the Veteran's symptoms relative to his low back disability prior to February 10, 2012, were consistent with the 0 percent or noncompensable disability rating assigned.  After February 10, 2012, the Veteran's low back disability symptoms were shown to have worsened to a level consistent with the 10 percent disability rating assigned.  At no time was the Veteran shown to have incapacitating episodes requiring bed rest, and the specific rating criteria pertinent to such symptoms will not be discussed.

From the date of service connection through February 10, 2012, the Veteran's symptoms consisted of full range of motion with some occasional pain from overuse, with no neurological findings or evidence of muscle spasm.  The Board notes that the VA examiner in February 2008 identified a loss of lordotic curve in the X-rays taken in August 2006.  However, notwithstanding this apparent abnormal curvature, both the August 2006 VA examiner and the February 2008 VA examiner stated that there was no evidence of muscle spasm in the Veteran's spine.  As the criteria for a higher disability rating specify that the abnormal spinal contour be the result of severe muscle spasm or guarding, the change in spinal contour alone without an underlying muscle spasm shown is not sufficient to justify the higher disability rating.  As such, the 0 percent or noncompensable rating assigned for this time period is appropriate.

As of February 10, 2012, the evidence shows that the Veteran's disability picture had worsened and an increased disability rating was warranted.  Specifically, the VA examination reflected a decreased range of motion, with flexion limited to 80 degrees as a result of pain on repetitive motion.  As such, the criteria for a 10 percent disability rating were met.  A still higher, or 20 percent disability rating, was not warranted, because the Veteran did not have a range of motion of less than 60 degrees, or a combined range of motion of the thoracolumbar spine less than 120 degrees (80+25+30+30+30+30 = 225 degrees), nor, as discussed above, muscle spasm or guarding severe enough to result in an abnormal spinal contour.  Therefore, the assigned disability rating of 10 percent for low back disability based on decreased range of motion was appropriate.
 
With respect to the Veteran's right-sided radiculopathy or sciatica, the Board finds that the currently assigned 20 percent disability rating for a moderate level of disability is appropriate based on the disability picture presented.  Specifically, the Veteran's first reported evidence of sciatica or radiculopathy symptoms in his right leg were at the February 2012 VA examination.  At that time, he described shooting pain and occasional paresthesias in his right leg.  Objective testing and examination showed decreased sensation in his right leg and a positive straight-leg raising test.  These findings, which are wholly sensory in nature, are consistent with a moderate level of disability in the sciatic nerve and with the assignment of a 20 percent disability rating.  A still higher disability rating would require evidence of additional nerve impairment affecting the active motion of the knee, a level of impairment not currently shown. 




Extraschedular Rating

Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.

If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for higher ratings for more severe symptoms.  Specifically, the rating criteria for disabilities of the spine discuss the Veteran's ability to perform the activities of daily living and his range of motion and are to be applied regardless of pain.  Separate rating criteria cover the effects of radiculopathy and related neurological symptoms, which in this case are considered moderate in nature.  While the Veteran has asserted time lost at work due to back pain, in large part because of limitations on the types and amount of medication he can use while on the job, this fact alone does not render the schedular ratings inadequate.  As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).




ORDER

Entitlement to an initial compensable disability rating for a low back disability prior to February 10, 2012 is denied.

Entitlement to a disability rating higher than 10 percent for a low back disability after February 10, 2012 is denied.

Entitlement to a disability rating higher than 20 percent for radiculopathy of the right leg is denied. 


REMAND

Prior to the most recent remand, a VA examination in February 2012 diagnosed plantar fasciitis of the right foot and degeneration of the talonavicular joint of the right foot as residuals of the Veteran's shell fragment wound sustained in service.  The Board recognized these findings and accepted them and the Veteran is deemed service connected for these disabilities.  The only question before the Board is whether one or both of the disabilities should be assigned separate compensable disability ratings based on distinct symptomatology.  Any symptoms already compensated for under the applicable rating criteria for shell fragment wound of the right foot may not be considered under 38 C.F.R. § 4.14.  

The September 2012 Board remand required that an additional VA examination be performed which identified and differentiated the symptomatology of these specific disabilities from those resulting from a low back disability and attendant radiculopathy, as well as the other residuals of the shell fragment wounded incurred in service.  Unfortunately, the assigned VA examiner did not understand the basis of the Board's request and treated the issues on appeal as related to whether service connection should be granted.  As a result, he did not provide the level of detail required for assigning an appropriate rating.  Therefore, either an addendum opinion or a new VA examination is required on remand.


Accordingly, the case is REMANDED for the following action:

1. Request an addendum opinion from the VA examiner who performed the December 2012 examination to address the nature and severity of the symptoms relative to the Veteran's plantar fasciitis of the right foot and of his degeneration of the talonavicular joint of the right foot.  If the examiner is not available, an addendum opinion or additional VA examination should be obtained from a similarly qualified provider.

The examiner is advised that plantar fasciitis of the right foot and degeneration of the talonavicular joint of the right foot are considered to be residuals of the shrapnel wound incurred in service and are thus deemed to be service connected.  Therefore, the question of etiology is no longer of concern, and the Board's focus is on identifying any separate symptomatology specific to these disabilities.

The claims folders should be available to and reviewed by the examiner.  All indicated tests, studies and X-rays should be performed.  The report should set forth all objective findings regarding these disabilities, including complete range of motion measurements.  A complete rationale for all opinions expressed should be provided.

A) Concerning the plantar fasciitis of the right foot, the examiner should (a) identify and describe in detail all specific manifestations and residuals of the Veteran's plantar fasciitis of the right foot; (b) state whether the specific manifestations and residuals of the Veteran's plantar fasciitis of the right foot could be described as (i) severe, (ii) moderately severe, (iii) moderate; or (iv) less than moderate; (c) state whether the Veteran's plantar fasciitis results in any limitation of motion or limitation of function associated with his right foot, to the exclusion of limitations caused by the Veteran's residuals of a shell fragment wound and his degeneration of the talonavicular joint of the right foot.  If possible, any limitations should be noted in terms of degree of loss of motion.  Limitation during any periods of flare-up should also be estimated and expressed in degrees of lost motion.

B) Concerning the degeneration of the talonavicular joint of the right foot, the examiner should perform any indicated tests and studies indicated to determine whether the Veteran currently has a degenerative condition.  The examiner should provide an opinion as to (a) whether the Veteran had degeneration of the talonavicular joint of the right foot in October 2008, (b) whether the Veteran had degeneration of the talonavicular joint of the right foot in February 2012, and (c) whether the Veteran currently has degeneration of the talonavicular joint of the right foot.

If the Veteran currently has degeneration of the talonavicular joint of the right foot, the examiner should address the severity of the joint degeneration by recording the range of motion in the right foot observed on clinical evaluation and should assess whether the joint degeneration causes limitation of motion, pain, or instability, including on repetitive use.  Additionally, the examiner should be requested to determine whether the degeneration of the talonavicular joint of the right foot exhibits weakened movement, excess fatigability, or incoordination, and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. 

In the event that the examiner finds that degeneration of the talonavicular joint is not determined to be present, the examiner should address what the symptoms and severity of such disability would have been during the time period of 2006 and 2008 when X-ray reports did indicate the presence of mild degenerative changes.

The examiner should also be asked to express an opinion as to the degree to which pain from the joint degeneration could significantly limit functional ability during flare-ups or on use.  The examiner should also discuss the extent of any occupational impairment resulting from his degeneration of the talonavicular joint of the right foot.

C) When addressing both the plantar fasciitis and the degeneration of the talonavicular joint of the right foot, the examiner should indicate, if possible, what aspects of the Veteran's foot disability are due solely to each of those aspects of the Veteran's foot disability.  If the examiner is unable to differentiate the symptoms of the plantar fasciitis and degeneration of the talonavicular joint from the symptoms associated directly with the Veteran's residuals of a shell fragment wound, the examiner should so indicate and provide an explanation as to why he or she is unable to do so.

2. On completion of the foregoing, the claim should be adjudicated.  If any aspect of the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board.


The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs