Citation Nr: 1324182 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 10-48 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a compensable rating for an atypical migraine disorder. 2. Entitlement to an increased rating for a cervical strain, evaluated as 20 percent disabling. 3. Entitlement to an increased rating for right foot plantar fasciitis, evaluated as 10 percent disabling prior to July 7, 2010. 4. Entitlement to an increased rating for right foot plantar fasciitis, evaluated as 10 percent disabling since July 7, 2010. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1977 to August 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The issues of entitlement to service connection for left shoulder neuropathy, to include as secondary to cervical strain, and for left foot plantar fasciitis, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to increased ratings for a cervical strain, atypical migraines, and right foot plantar fasciitis since July 7, 2010, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to July 7, 2010, the symptoms due to right foot plantar fasciitis included pain limiting activities; however, there is no limitation of range of right foot motion, X-ray evidence showing involvement of two or more major joints or two or more minor joint groups with incapacitating episodes; there is not a moderately severe foot disability; and the Veteran's right foot is not manifested by weak foot, claw foot, metatarsalgia, hallux rigidus, hammer toe, or malunion/nonunion of the tarsal or metatarsal bones. CONCLUSION OF LAW Prior to July 7, 2010, right foot plantar fasciitis did not meet the criteria for an evaluation greater than 10 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.20, 4.27, 4.71a, Diagnostic Codes 5299-5020, 5276-84 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With regard to the increased rating claim, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in March 2009, of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examination. A June 2009 VA foot examination was adequate because it was based on consideration of the Veteran's prior medical history, and it described the disability in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For the reasons set forth above VA has complied with the VCAA's notification and assistance requirements, and this appeal is ready to be considered on the merits. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The Veteran has been awarded a 10 percent evaluation under Diagnostic Code 5099-5020 for his right foot plantar fasciitis. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 5020, for synovitis, refers in turn to the criteria for limitation of motion of the affected part, as degenerative arthritis, i.e., Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings warrants a 10 percent rating for each major joint or group of minor joints affected. Diagnostic Code 5003, in turn, evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a, Diagnostic Code 5003. There is no specific Diagnostic Code which specifically addresses a limitation of foot motion. Diagnostic Code 5284, however, does provide a 10 percent rating for a moderate foot impairment, and a 20 percent rating for a moderately severe foot impairment. 38 C.F.R. § 4.71a. The terms 'mild,' 'slight,' 'moderate,' and 'severe' are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The Veteran reports that his plantar fasciitis is manifested by pain, which increases with use. When evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful joints due to a healed injury are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. "Plantar fasciitis" is the "inflammation of (the) plantar fascia, owing to repetitive stretching or tearing of muscle fibers near their attachment to the calcaneal tuberosity; it is one of the most common causes of heel pain." Dorland's Illustrated Medical Dictionary 684 (32d ed. 2012). Additional diagnostic criteria governing disabilities of the feet are found at Diagnostic Codes 5276-84. Diagnostic Code 5276, applicable to acquired flatfoot, assigns a 10 percent rating for unilateral moderate flatfoot with the weight-bearing line being over or medial to the great toe, inward bowing of the tendo Achilles, and pain on manipulation and use of the feet. A 20 percent rating is warranted for severe unilateral flatfoot manifested by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, an indication of swelling on use, and characteristic callosities. In every case where the requirements for a compensable rating are not met, a zero percent evaluation may be assigned, even if the diagnostic schedule does not provide for such a noncompensable evaluation. 38 C.F.R. § 4.31 (2012). A June 2009 VA examination reviewed the Veteran's history of right plantar fasciitis, to include his report that he experienced right foot pain which he treated with orthotics and continued stretching exercises. The Veteran reported that his pain was worse when he worked longer shifts, but that it occurred daily, especially in his heels. Pain reportedly was aggravated by standing and alleviated by rest. The Veteran reported experiencing fatigue and lack of endurance, and indicated that he no longer played sports because this aggravated the pain. The Veteran denied experiencing weakness, stiffness, swelling, heat and redness. The Veteran was functionally limited to standing or walking one hour. He wore orthotics and boots. On examination the Veteran's gait was normal. There was evidence of pes planus, which is not a service connected disorder. There was also evidence of positive wear on the lateral aspect of his shoes. The skin was warm and pink, and sensation was intact to monofilament testing. There were no varicosities, skin breakdowns, or calluses. The toes had normal range of motion and position. There was no metatarsal point tenderness, Achilles point tenderness, and the Achilles was properly aligned. There was calcaneal point tenderness. There was no valgus deformity, or point tenderness of the plantar aponeurosis. There were no hammertoes, high arch, clawfoot, or other deformity. Considering DeLuca criteria, the joint was not painful on motion. Further, joint function was not additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance following repetitive motion. There was no estimated additional decrease in range of motion with flare-ups. Right foot X-rays showed no fracture, dislocation or bone lesion. There was no significant pes planus deformity. There was a calcaneal bony spur. Degenerative changes were noted at the tibiotalar joint with osteophyte formation more along the anterior joint capsule. There were small calcified bodies along the posterior aspect of the ankle joint likely related to intra-articular bodies and or capsular calcifications. The pertinent diagnosis was no evidence of plantar fasciitis. The examiner noted that the Veteran worked full time and remained capable of performing the activities of daily living. VA treatment records show that in February 2010 impression was of small right plantar spur/plantar fasciitis, improved with orthotics such that the Veteran was walking comfortably most of the time, although some shoes still caused a problem. It was recommended that the Veteran engage in stretching and ice massages. An April 2010 private treatment record from J. Gaetano, DPM, shows the Veteran was treated for heel pain, and reported using orthotics for many years, which provided only limited relief. Examination revealed tenderness to palpation of the origin of the plantar fascia, mild tenderness to palpation of the porta pedis. Muscle strength was normal. There was an ankle equinus deformity. Subtalar joint range of motion was within normal limits, with no pain or crepitus. There was mild collapse of the medial longitudinal arch, with a flexible calcaneal everted stance position. The impressions were plantar fasciitis, heel spur syndrome and pes planovalgus deformity. An October 2010 rating decision awarded the Veteran a 10 percent evaluation for plantar fasciitis effective March 9, 2009. The rating was based on calcaneal point tenderness which was found to be analogous to pain. In November 2010 the Veteran submitted a statement explaining that he spent the majority of his day walking on a concrete deck and transiting ladders or 70 degree wrought iron stairs in order to access machinery or piping. He reported wearing two pairs of boots, one pair primarily for work; the other for daily use. He reported being issued orthotics in January 2002, which he wore in his boots, and that he used Dr. Scholl's cushions for any other footwear. The Veteran reported that he woke during the night with aching heels and that his symptoms were aggravated when walking barefoot or in socks. At his March 2011 Board hearing, the Veteran described his right plantar fasciitis symptoms to include throbbing heel pain that woke him, and limited his ability to jog or run. He indicated that he was a maintenance mechanic at the Coast Guard Academy, and that he had transitioned from one position to another in order to limit the physical demands of his job. He noted that his current job paid $1.25 less than his previous one. The Veteran reported that while he had previously needed to climb steep wrought iron ladders, he was now able to use more conventional stairwells. His new job reportedly involved more walking but less climbing. The Veteran reported that wearing orthotics, or lace up boots, and that he was limited to the type of shoes he could wear because of the orthotics. He reported wearing Crocs or sneakers at home. The Veteran reported experiencing pain a few times every other week. In sum, prior to July 7, 2010, the evidence shows that the Veteran reported right foot tenderness, that pain limited his activities, and required that he wear orthotics in most of his shoes. Notably, he has also been diagnosed as having pes planus, which is not a service connected disorder. Moreover, the preponderance of the evidence shows that the Veteran is not entitled to a higher rating for right foot plantar fasciitis, to include under any other potentially applicable diagnostic code. The Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Codes 5020 and 5003 since the evidence preponderates against finding a limitation of right foot motion due to plantar fasciitis. Indeed, range of right foot motion was demonstrated to be normal. There is no X-ray evidence of plantar fasciitis. Although there was evidence of pes planovalgus deformity this is not service-connected and was a separate diagnosis from the service-connected plantar fasciitis, such that a higher rating under diagnostic code 5276 for flatfoot is not warranted. There was no evidence of service connected clawfoot symptoms warranting a higher rating under diagnostic code 5278, or malunion or nonunion of tarsal or metatarsal bones warranting a higher rating under diagnostic code 5283. The Board acknowledges the X-ray findings of a calcaneal spur and degenerative changes with osteophyte formation, along with tenderness and pain limiting the Veteran's function; however, the preponderance of the evidence weighs against finding that the appellant has a moderately severe foot disorder due to plantar fasciitis. Hence, entitlement to a higher rating under diagnostic code 5284 is not in order. 38 C.F.R. § 4.71a. The Board considered the Veteran's lay statements regarding the severity of his disability. The Veteran is competent to report his symptoms; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. While the Veteran is competent to provide evidence as to his symptoms and while his statements are credible, the medical findings, which directly address the criteria under which the service-connected disability is considered, are more probative than his assessment of the severity of his disability. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, it is well to note that the June 2009 VA examination did not diagnose plantar fasciitis, and while the private podiatry examination did diagnose the disorder, that examination found no tenderness, normal muscle strength, and a range of motion that was within normal limits. At worst, the disorder was manifested by tenderness. Therefore, the preponderance of the evidence is against the claim. There is also no basis for a 'staged' rating. The rating criteria reasonably describe the Veteran's disability and symptomatology. The Veteran has described symptomatology regarding his right foot plantar fasciitis that includes pain with functional limitations to include running, walking, climbing and standing. The Veteran does not experience symptomatology due to plantar fasciitis that is not contemplated by the Rating Schedule. As the rating criteria reasonably describe the disability and symptomatology, the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Therefore, the preponderance of the evidence is against finding that prior to July 7, 2010, the Veteran's right foot plantar fasciitis more nearly approximated the criteria for a rating higher than 10 percent. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. The appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER For the period prior to July 7, 2010, entitlement to a rating in excess of 10 percent for service-connected plantar fasciitis of the right foot is denied. REMAND In March 2011, the Veteran testified that his cervical strain has worsened since his last VA examination. The record shows that in April 2010 the Veteran's cervical spine was evaluated at CrossRoads Orthopaedic Sub Specialists, at which time it was indicated magnetic resonance imaging would be obtained. The results of that study are not available. The Veteran further reported receiving VA treatment for his service-connected disorders, to include an appointment earlier that month. He also reported having a February 2011 neurological appointment, and there is medical evidence suggesting that he may have received physical therapy for his neck, as well as yearly neurological reviews of his migraines and neck disorders. Unfortunately, VA treatment records have only been obtained through July 2010. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected cervical strain. Further, ongoing VA medical records should also be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must attempt to retrieve all pertinent VA and private records that have not previously been added to the record, to specifically include all VA records since July 7, 2010. This includes attempting to secure all pertinent records from the VA facilities in Newington and New London, Connecticut; as well as records from CrossRoads Orthopaedic Sub Specialists. All attempts to secure this evidence must be documented in the claims file. If the AMC/RO cannot locate these records, the AMC/RO must document the attempts that were made to locate them, and explain in writing why further attempts to locate or secure them would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to retrieve; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. After the above has been accomplished to the extent possible, schedule the Veteran for appropriate VA examinations to determine the nature and extent of his migraine disorder, cervical strain and right foot plantar fasciitis. The entire claims file, i.e., both the paper file and any Virtual VA file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must specifically provide the range of any limited cervical motion due to the cervical strain, and the range of limited right foot motion due to plantar fasciitis. If the Veteran is diagnosed with multiple foot disorders, the examiner must carefully differentiate all symptoms due to plantar fasciitis from those symptoms caused by a different disorder. The examiner must also record the frequency of any characteristic prostrating attacks due to the service connected atypical migraine disorder. All necessary tests should be performed and the results reported. 3. The Veteran is notified that it is his responsibility to report for VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. The AMC/RO must review the examination report to ensure that it complies with the directives of this remand. If it is deficient in any manner, the AMC/RO must implement corrective procedures. 5. After taking any further development deemed appropriate, re-adjudicate the issues on appeal. If any benefit sought is not granted, provide the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs