Citation Nr: 1318330 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-14 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial disability rating in excess of zero percent for plantar fasciitis/heel spur syndrome of the right foot (a right foot disability). 2. Entitlement to an initial disability rating in excess of 10 percent for plantar fasciitis/heel spur syndrome of the left foot (a left foot disability). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from June 1992 to June 1993. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the RO in Newark, New Jersey. In June 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In October 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC to afford the Veteran a VA examination. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). An additional discussion regarding the RO's compliance with the October 2012 Board Remand is included in the Duties to Notify and Assist section below. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. For the entire rating period, a right foot disability has been manifested by pain, swelling, tenderness, instability, weakness, increased pain with use; it does not approximate marked limitation of motion or a moderately severe foot injury. 2. For the entire rating period, a left foot disability has been manifested by pain, swelling, tenderness, instability, weakness, increased pain with use, it does not approximate marked limitation of motion or a moderately severe foot injury. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent disability rating, but no higher, for a right foot disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5020, 5271, 5284 (2012). 2. The criteria for an initial disability rating in excess of 10 percent for a left foot disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5020, 5271, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 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 or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication. A June 2009 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The June 2009 notice letter also informed the Veteran as to how disability ratings and effective dates are assigned. Concerning the appeals for higher initial ratings, because they are appeals that arise from the Veteran's disagreement with the initial evaluation following the grant of service connection for bilateral foot planar fasciitis/heel spur syndrome, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007). With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including private treatment reports, have been secured. The RO arranged for VA examinations in August 2009 and November 2012 (pursuant to the October 2012 Board Remand). These examinations, taken together, are found to be adequate for rating purposes of the issue. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes); see also Stegall, 11 Vet. App. at 268. As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield, 444 F.3d at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) 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 the 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." The United States Court of Appeals for Veterans Claims (Court) has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2012). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Also in this regard, the Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996); see also 38 C.F.R. § 4.14 (both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. A Bilateral Foot Disability Rating Analysis Service connection for a right foot and left foot disability was granted in a September 2009 rating decision that assigned a separate noncompensable evaluation and 10 percent evaluation, respectively, which gave rise to this appeal. The Veteran's plantar fasciitis/heel spur syndrome is currently rated at noncompensable in the right foot and 10 percent disabling in the left foot by analogy to Diagnostic Code 5020 pertaining to synovitis. Under this diagnostic code, synovitis is rated based on limitation of motion of the affected part as degenerative arthritis. Diagnostic Code 5271, contemplating limitation of motion of the ankle, and Diagnostic Code 5003, contemplating degenerative arthritis, are therefore applicable. Further, Diagnostic Code 5284, contemplating other foot injuries, is also applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5020, 5271, 5284 (2012). Diagnostic Code 5003 provides for a 10 percent rating for painful motion for each specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5020. Diagnostic Code 5271 provides for a 10 percent rating where there is moderate limitation of motion of the ankle, and for a maximum 20 percent evaluation for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under Diagnostic Code 5284, moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5284. During the August 2009 VA examination, the Veteran complained of pain when put through range of motion, and ankle and subtalar joint testing; however, the examiner did not indicate whether there was limitation of motion of the ankle due to pain, only that the Veteran experienced painful motion of the left foot. In the November 2012 examination report, the examiner noted that the Veteran had less than moderate limitation of motion of the feet. The November 2012 examiner, however, did not note any pain during range of motion testing. Significantly, the examiner indicated that there was no functional impairment of the extremities. Therefore, the Board cannot conclude, even with consideration of functional factors, that the Veteran's loss of motion of the foot joints most nearly approximates a 10 percent rating for the right foot (for moderate limitation of motion) or a 20 percent rating for the left foot (for marked limitation of motion) under Diagnostic Code 5271. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Here, the Board finds that the Veteran's plantar fasciitis/heel spur syndrome of the feet should not be assigned higher initial evaluations for either foot under Diagnostic Code 5020 for synovitis. Synovitis is rated as degenerative arthritis under Diagnostic Code 5003 which provides for a 10 percent rating for painful motion for each specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5020. The Veteran is service-connected for bilateral plantar fasciitis/heel spur syndrome and the evidence establishes that he experiences pain of the left foot upon motion and other physical activity. See August 2009 VA examination. The August 2009 VA examiner, however, noted that there was no painful motion of the right foot. In the November 2012 VA examination report, the examiner did not note painful motion on either foot. Therefore, a 10 percent evaluation is appropriate for painful noncompensable limitation of motion of the left foot under Diagnostic Codes 5003 and 5020; however, a 10 percent evaluation is not appropriate for the right foot as there is no painful noncompensable limitation of motion. The Board further finds that an initial rating of 10 percent, but no higher, is alternatively warranted under Diagnostic Code 5284 for a right foot injury; however, an initial rating in excess of 10 percent disabling for a left foot injury is not warranted under Diagnostic Code 5284. The November 2012 VA examiner indicated that the severity of the plantar fasciitis/heel spur syndrome is moderate, reflecting a separate 10 percent evaluation for the right and left foot disabilities. The Veteran has complained of experiencing pain in his bilateral feet that has rendered him unable to stand or walk for prolonged periods of time. The November 2012 VA examiner found that the Veteran had no arch, skin, or vascular foot abnormalities, no hallux valgus, no hallux rigidus, no pes cavus (claw foot), and no other deformities. The August 2009 VA examiner had similar, objective findings. The Board has considered the Veteran's subjective reports of functional limitations associated with his plantar fasciitis/heel spur syndrome of the feet. The Board finds that the weight of the lay and medical evidence does not demonstrate the presence of symptoms that more nearly approximate moderately-severe residuals of a bilateral foot injury under Diagnostic Code 5284. As such, an initial 10 percent evaluation is warranted for a right foot disability, but no higher, and an initial rating in excess of 10 percent disabling for a left foot disability is not appropriate. In this regard, in the October 2012 Board Remand, the Board requested the examiner to determine the severity of the Veteran's service-connected, bilateral plantar/heel spur syndrome of the feet, and to exclude, to the extent possible, the non-service-connected left heel fracture residuals. As noted above, the November 2012 VA examiner indicated that the severity of the plantar fasciitis/heel spur syndrome is moderate. While not explicitly distinguishing the symptoms of plantar/heel spur syndrome and those of a left heel fracture, the examiner attributed the Veteran's moderate symptoms to his service-connected bilateral plantar/heel spur syndrome of the feet. See Mittleider, 11 Vet. App. at 181 (when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition). In considering the applicability of other diagnostic codes, the Board has reviewed all criteria pertaining to the ankle and foot, and finds that Diagnostic Codes 5270, 5272, 5273, 5274, 5276, 5277, 5278, 5279, 5280, 5281, 5282, and 5283, are not applicable in this instance as the evidence clearly does not show that the Veteran has any of the following associated conditions, respectively: ankylosis of the ankle; ankylosis of the subastragalar or tarsal joint; malunion of the os calcis or astragalus; astragalectomy; acquired flatfoot; bilateral weak foot; acquired pes cavus; Morton's disease; unilateral hallux valgus; severe unilateral hallux rigidus; hammertoe; or malunion or nonunion of the tarsal or metatarsal bones. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272-74, 5276-83. For these reasons, the Board finds that the Veteran's bilateral foot disability is no more than moderate in degree. As such, a 10 percent evaluation, but no higher, for a right foot disability is warranted; however, ratings in excess of 10 percent for each foot would not be alternately assignable under any other applicable diagnostic code. Indeed, after careful review of the available diagnostic codes and all the evidence of record, lay and medical, the Board does not find evidence that the ratings assigned (10 percent disabling for each foot) should be increased for any other separate period based on the facts found during the appeal period. As such, an initial evaluation in excess of 10 percent disabling for a left foot disability is not warranted. See Fenderson, 12 Vet. App. at 119; Hart, 21 Vet. App. at 509. Hence, the claim for an initial rating in excess of 10 percent disabling for a left foot disability must be denied. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the symptomatology and impairment caused by the Veteran's bilateral foot disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Code 5284, specifically provide for disability ratings based on moderate to severe foot injuries, including due to pain and other orthopedic factors. See 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59 (2012); see also DeLuca at 202. In this case, considering the lay and medical evidence, bilateral plantar fasciitis/heel spur syndrome has been manifested by pain, swelling, tenderness, instability, weakness, increased pain with use, and moderate limitation of motion in the feet, and these symptoms are contemplated by the schedular rating criteria. The Board has additionally considered ratings under alternate schedular rating criteria as discussed above. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). Additionally, the Board has considered the Veteran's functional limitations to prolonged standing and walking, and associated limitations to occupational and daily activities due to his foot pain. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (2012). "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect of the Veteran's foot pain on his occupation and daily life. In the absence of exceptional factors associated with bilateral plantar fasciitis/heel spur syndrome, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial disability rating of 10 percent, but not higher, for a right foot disability is granted. An initial disability rating in excess of 10 percent for a left foot disability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs