Citation Nr: 1318295 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 08-17 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bilateral pes planus/plantar fasciitis/hallux valgus prior to June 30, 2010. 2. Entitlement to an initial rating in excess of 30 percent for bilateral pes planus/plantar fasciitis/hallux valgus since June 30, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and her parents ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from September 2004 to November 2006. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in San Diego, California. The case is now within the jurisdiction of the RO in Huntington, West Virginia. The case was remanded by the Board in September 2010 and in September 2011 to enable the Veteran to appear before a Veterans Law Judge at a personal hearing. A video conference hearing was held before the undersigned Veterans Law Judge in January 2012. The Veteran also testified before a decision review officer (DRO) at the RO in May 2008. Transcripts of both hearings are on file. In an April 2012 decision, the Board denied the Veteran's claim for an initial rating in excess of 10 percent for bilateral pes planus/plantar fasciitis/hallux valgus prior to June 30, 2010. She was, however, granted a 30 percent rating for bilateral pes planus/plantar fasciitis/hallux valgus since June 30, 2010. She appealed the Board's April 2012 decision to the Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) the parties agreed to vacate the Board's decision and remand the case to the Board for additional development. The JMR was incorporated by reference in a Court order dated in September 2012. FINDINGS OF FACT 1. Prior to June 30, 2010, the Veteran's left foot disability was shown to be moderately disabling but not moderately severe disabling. 2. Prior to June 30, 2010, the Veteran's right foot disability was shown to be moderately disabling but not moderately severe disabling. 3. Since June 30, 2010, the Veteran's left foot disability is severely disabling but does not equate to loss of use of the foot. 4. Since June 30, 2010, the Veteran's right foot disability is severely disabling but does not equate to loss of use of the foot. CONCLUSIONS OF LAW 1. Prior to June 30, 2010, the criteria for a rating of 10 percent for left foot pes planus/plantar fasciitis/hallux valgus were met. 38 U.S.C.A. §§ 1155 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5284. 2. Prior to June 30, 2010, the criteria for a rating of 10 percent for right foot pes planus/plantar fasciitis/hallux valgus were met. 38 U.S.C.A. §§ 1155 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5284. 3. Since June 30, 2010, the criteria for a rating of 30 percent for left foot pes planus/plantar fasciitis/hallux valgus are met. 38 U.S.C.A. §§ 1155 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5284. 4. Since June 30, 2010, the criteria for a rating of 30 percent for right foot pes planus/plantar fasciitis/hallux valgus are met. 38 U.S.C.A. §§ 1155 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in December 2012, VA advised the Veteran of the information and evidence needed to substantiate the claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and available private treatment records. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). ANALYSIS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Given that the Veteran has appealed the initial evaluation assigned, the severity of her disability is to be considered during the entire period from the initial assignment of the disability rating to the present. Fenderson. 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. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran appeals the denial of a rating higher than 10 percent for bilateral pes planus/plantar fasciitis/hallux valgus prior to June 30, 2010 and 30 percent since June 30, 2010. It is noted that the Veteran has separate 20 percent ratings for lymphedema of each lower extremity, and this condition causes pain and swelling of the feet in addition to the Veteran's pes planus/plantar fasciitis/hallux valgus. The Veteran's disability of the feet is currently rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5276. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5299 provides that unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20. Diagnostic Code 5276 addresses flat feet. Under Diagnostic Code 5276, a 10 percent rating is warranted for moderate pes planus with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, pain on manipulation and use of the feet, bilateral or unilateral. Severe pes planus manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, warrants the assignment of a 20 percent rating if unilateral and 30 percent rating if bilateral. Pronounced pes planus manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances warrants the assignment of a 30 percent rating if unilateral and 50 percent rating if bilateral. In the January 2007 VA examination, it was noted that flat feet was noted on the Veteran's entrance physical but she was able to walk. In service she started having pain in her lower legs. She was told it was due to flat feet and plantar fasciitis. She was given shoe inserts, but the condition continued to get worse. Eventually both inserts broke. She was on a profile for no running or standing or walking for a long time. She had molds and new inserts made but they needed to be adjusted. She had a bone scan but was not sure whether she was diagnosed with plantar fasciitis or shin splints. There was pain in both great toes and her heels throb. She had a cortisone injection in the right great toe which did not help. The pain was worse early in the morning. Examination of the feet revealed that the Veteran was wearing inserts in both shoes. There was pain with pressure to the bottom of the heel bilaterally. The skin was dry and cracking on the plantar surfaces. There was no pitting edema. There was tenderness to palpation over the forefoot bilaterally. Arches were normal non-weight bearing but flat with weight bearing. The Veteran was able to walk on her toes and heels without difficulty. Her gait and posture were normal. X-rays of the feet showed mild joint space narrowing in the region of the first metatarsophalangeal joint and a mild hallux valgus deformity. The diagnosis was bilateral plantar fasciitis, bilateral flexible arches, and bilateral mild hallux valgus. VA treatment records show complaints of pain in the feet and heels. A September 2007 treatment note indicated that there were no calluses on the feet. There was edema but no erythema. There were no macerations or open lesions. Skin temperature was warm to cool from proximal to distal bilaterally. Ortho-muscle strength was 5/5. There was full range of motion to all pedal joints. There were no masses or gross deformities noted to the bilateral lower extremities. There was a hyper mobile first ray bilaterally. There was tenderness to palpation to the plantar foot bilaterally. Neuro-epicritic sensation was intact to the bilateral feet via light touch. The Veteran had prescribed shoe inserts which she said helped somewhat. The Veteran testified at a hearing before a DRO at the RO in May 2008. At that time the Veteran testified that she experienced foot pain, swelling, marked deformity and calluses. She related she had no arches on the bottom of her feet, and throbbing pain in her feet that was sometimes but not always constant. She rated the pain 7 or 8 out of 10 in severity. She had the beginning of a bunion on her right foot and her left foot got blisters. Her feet were flat. She did not wear any devices to help her flat feet. She could not comfortably walk long distances. She had three calluses on both feet. A doctor had recommended some type of foot surgery but this could not be done due to her lymphedema of the lower extremities. She felt that her foot pain interfered with her life from day to day, whether she wanted to walk for exercise or stand for long periods of time. When she did a 10 week pharmacy technician internship she had to be on her feet for 4 hours per day. When she came home she would need to rest her feet for an hour so that they would "calm down." VA provided her with shoe inserts but she felt that these made her problems with her feet worse. The Veteran was afforded a VA examination in July 2008. She reported her foot disability progressively worsened and responded only fairly to treatment. She had partial symptom relief with elevation, applying cold and/or with medication. Identified symptoms included pain, swelling, stiffness, lack of endurance and fatigability of the heel, toes and all of the foot. Heat, redness, weakness and/or other symptoms were not identified. She had pain, swelling and stiffness with standing, walking and at rest. She reported fatigability and lack of endurance with standing and walking. Functionally she was able to stand up to one hour and walk one to three miles. She did not use assistive devices. Examination of the left and right foot revealed no evidence of painful motion, tenderness, instability, weakness and/or abnormal weight bearing but there was evidence of swelling. There was puffiness of the feet and ankles due to her lymphedema. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones on the left foot. Achilles alignment of non weight bearing and weight bearing were normal. There was no pronation, forefoot malalignment and/or midfoot malalignment. An arch was present on non weight bearing but not on weight bearing. There was pain on manipulation but no muscle atrophy of the foot. Angulation of the first MTP joint was 18 degrees on the left and 15 degrees on the right. There was no stiffness of the joints. Her posture and gait were normal. X rays findings revealed for the left foot there was a plantar calcaneal spur, toe contractures, early flattening of the first metatarsal head and flattened plantar arch. For the right foot, there was very minimal early flattening of the first metatarsal head, toe contractures were not as prominent on the right foot and demineralization of the foot was not as marked as on the left. Minimal pes planus bilaterally, early hallux valgus bilaterally slightly worse on the left, left heel spur and bilateral plantar fasciitis were diagnosed. The Veteran was seen for a recurrence of plantar fasciitis in March 2009. At that time, the Veteran reported increased pain with ambulation and she was noted to have an antalgic gait. She had significant lymphedema. There was pain on palpation of the medial tubercle of the calcareous as well as the Achilles tendon area and along the medial band of the plantar fascia. The Veteran had negative Tinel's and negative Valleix. The Veteran obtained a comprehensive examination of her feet from VA on June 30, 2010. It was noted that the Veteran had non-pitting lymphedema that extended fully up her legs. She had thick, discolored nails, bilateral hallux. She had exfoliated skin on the plantar aspect of the foot that was consistent with tinea pedis. An orthopedic examination showed that while sitting the Veteran had her hallux abducted in valgus rotation, which was present and reducible. Pain on palpation was noted. There was no pain with range of motion. There was no crepitus. The Veteran's left foot was more painful than the right foot. Bilateral arches were present with sitting. With standing, the arches decreased. The Veteran had calluses at the interphalangeal joint and the metatarsal phalangeal joint bilaterally. When standing, she had a flattening of the medial arch. She had genuvalgum bilaterally. The arch was decreased to a greater degree on the right as compared with the left. It was noted that the Veteran had a pronated foot type. There was flexor stabilization of the toes bilaterally. The Veteran also reviewed posteriorly as inward bowing of the Achilles tendon with a positive helbing sign, right greater than left. The heel was valgus, right greater than left, and was reducible, but the first ray did not purchase. The left hallux minimally purchases when reduced. The Veteran had a positive Jack's test. The heel inverted with pain at the forefoot. On her forefoot, the Veteran had pain in the first metatarsal phalangeal joint with popping. With gait analysis, it was noted that the Veteran's feet followed midline. The right foot was slightly abducted to the midline of the foot. She had flat feet bilaterally with the forefoot flapping on the ground. The Veteran's foot type is both pronated with walking without shoe gear. The Veteran's hips and shoulders had no tilt. The Veteran was diagnosed with hallux abductovalgus bilaterally, bilateral tinea pedis, onchomycosis bilateral hallux, calluses, pronation, tinea valgum, metatarsalgia, and lymphedema. She was recommended to continue with her current treatment regime and to wear shoe inserts. The Veteran was afforded a video conference hearing in January 2012. At that time, the Veteran testified that she experienced pain in her feet that ranged from dull to burning. She wears orthotic inserts in her shoes which provide some relief from her symptoms but not total relief. She had physical therapy for her feet in the past but it did not help. She takes much pain medication to control her symptoms. She expressed that she cannot have surgery on her feet due to her lymphedema in her feet and legs. She is a full time student and she normally goes to sit in her car between classes to get off of her feet. Standing is painful and causes one or both feet to flare up and she usually has to sit down as soon as possible. Her ankles roll and she has sprained an ankle in the past. She did not wear leg splints because they were too painful and could cause her to fall resulting in injury. She soaks her feet to bring the inflammation down and she wears shoes that have ankle support. She has a handicap placard for her car so that she doesn't have to walk too far from the parking lot to her classes. She is getting bunions. The lymphedema causes her feet to always be swollen. The only exercise she can do is swimming and biking on a special bike. The Veteran's mother testified that the Veteran often complained about pain in her feet and when she looks at the Veteran's feet they look red and sore. The Veteran's father testified that she used to be active but is not any longer. Based on the evidence presented, the Board finds that DC 5284 is a more appropriate diagnostic code to rate the Veteran's foot disability for both periods of this appeal. In this regard, during both periods, the Veteran has been diagnosed with several foot disabilities to include pes planus, plantar fasciitis, and hallux valgus. It is significant that DC 5276 specifically addresses pes planus, and that Diagnostic Code 5284 expressly applies to other foot injuries. In light of the several foot diagnoses of record, the Board finds that the more appropriate rating code for the Veteran's foot disability is DC 5284. Unlike DC 5276, which provides for a single rating bilaterally, DC 5284 rates each foot separately. The Board notes these separate ratings that the Board is assigning by this decision for each foot pursuant to DC 5284 for both portions of the appeal period, when adding in the bilateral factor, will not result in a lower rating for the applicable appeal period. See 38 C.F.R. §§ 4.25, 4.26. As such, the Board finds that an overall higher disability rating for her bilateral foot disability can be granted by applying DC 5284. As the Board has decided that DC 5284 is a more appropriate diagnostic code to rate the Veteran's foot disability, the Board will now address whether a rating higher than 10 percent for pes planus/plantar fasciitis/hallux valgus of the left and right foot is warranted prior to June 30, 2010. In light of the evidence of record, the Board finds that the evidence as a whole demonstrates that the Veteran's symptoms were adequately addressed by the assigned 10 percent evaluation and that the criteria for a 20 percent evaluation were not met during this period. During the applicable time frame, the Veteran's disability was manifested by no more than moderate foot impairment for the left and right feet. She had pain on manipulation and use of the feet. While she had swelling of the feet, such was due to her lymphedema of the lower extremities for which she has separate ratings, and therefore this symptom cannot be used as a basis for an increased rating for the Veteran's flat feet. During this time, the evidence was devoid of a showing of marked deformity such as pronation or abduction of the feet. Rather, examination revealed the left and right foot had no evidence of painful motion, tenderness, instability, weakness and/or abnormal weight bearing. There was no pronation, forefoot malalignment, midfoot malalignment and/or muscle atrophy of the foot. Her posture and gait were also normal. While she testified that she had calluses at her hearing before the DRO at the RO, the evidence is devoid of objective evidence of such. The Board finds that the more probative evidence is devoid of a showing of moderately severe disability of the left and/or right foot as to warrant the next higher evaluation during this period of time. Furthermore, the Board finds against a rating higher than 30 percent for the Veteran's left and right foot disability since June 30, 2010. In this regard, no more than severe disability has been shown. During this time, the evidence shows pain and swelling on use of her feet, and tenderness to palpation of various parts of her feet. She also is shown to have calluses at the interphalangeal joint and the metatarsal phalangeal joint bilaterally, pronation of the feet with walking without shoe gear, and an inward bowing of the Achilles tendon with a positive helbing sign. Functional limitations with walking and standing are also shown. The Board notes that under DC 5284, a 30 percent evaluation is the maximum evaluation available absent a loss of use of the foot. "Loss of use of a foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. 38 C.F.R. § 4.63. Here, the Veteran's symptoms are not so severe as to constitute "loss of use of a foot. " While there was some inward bowing of the Achilles tendon it was not markedly inwardly displaced and there was no indication of spasm on manipulation. While there was pronation of the feet this was not noted to be severe in nature and the Veteran's gait did follow midline. Furthermore, while she still had pain in her feet, her symptoms were somewhat improved by the use of orthopedic shoes and appliances. These findings justify no more than a 30 percent rating for the left and right feet. The Board has considered whether a higher rating is warranted under any other potentially applicable diagnostic code. The Board has found none. The Board acknowledges the Veteran's assertions that her disability is more severe than evaluated to include her reports of pain. The Veteran is competent to report such symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board has also considered the pleadings and reports, and finds that the Veteran is credible in reporting the severity of her disability. The more credible and probative evidence, however, is devoid of a showing that her disability warrants a higher rating than 10 percent prior to June 30, 2010 and 30 percent thereafter. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) ; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disabilities. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is 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 to include to her reports of pain, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. There are no contentions that she is unemployable due to the foot pathology. As such, a claim for a total rating based on individual unemployability is not raised by the record. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Prior to June 30, 2010, a rating of 10 percent for pes planus/plantar fasciitis/hallux valgus for the left foot is granted, subject to the law and regulations governing the payment of monetary benefits. Prior to June 30, 2010, a rating of 10 percent for pes planus/plantar fasciitis/hallux valgus for the right foot is granted, subject to the law and regulations governing the payment of monetary benefits. Since June 30, 2010, a rating of 30 percent for pes planus/plantar fasciitis/hallux valgus for the left foot is granted, subject to the law and regulations governing the payment of monetary benefits. Since June 30, 2010, a rating of 30 percent for pes planus/plantar fasciitis/hallux valgus for the right foot is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs