Citation Nr: 1331533 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-46 582A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a left hand disorder, to include as due to undiagnosed illness. 2. Entitlement to ratings higher than 0 percent, effective October 1, 2006, and 20 percent, effective February 22, 2013 for plantar fasciitis with pes cavus of the right foot. 3. Entitlement to a rating higher than 10 percent, effective October 1, 2006, for plantar fasciitis with pes cavus of the left foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from September 1978 to September 2006, with an additional 2 months and 24 days of prior active service. This matter comes to the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, as part of the Benefits Delivery at Discharge (BDD) program. In this decision the RO granted service connection for bilateral plantar fasciitis assigning 0 percent ratings, effective October 1, 2006, and denied service connection for pes cavus, bilateral hip arthralgia, and left hand arthralgia. Jurisdiction was subsequently transferred back to the RO in Chicago, Illinois. In April 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. This case was previously before the Board in January 2013, at which time the Board granted service connection for pes cavus and bilateral hip arthralgia, and remanded the service connection claim for left hand arthralgia and the claim for entitlement to compensable ratings for bilateral plantar fasciitis. The directives of the Board's remand were substantially complied with, as private treatment records were obtained and added to the file, and a VA examination report addressing the severity of the bilateral feet disabilities was provided in February 2013. Unfortunately, however, for reasons described in the remand section below, the service connection claim for a left hand disorder requires more development prior to a decision in this case. The RO subsequently instituted the Board's grant of service connection for the bilateral hip disorder and bilateral pes cavus in a January 2013 rating decision. The RO combined the ratings for bilateral plantar fasciitis and pes cavus and assigned a 10 percent rating, effective October 1, 2006. In April 2013, the RO separated the ratings for each foot and assigned a 0 percent rating for right foot plantar fasciitis with pes cavus, effective October 1, 2006, and a 20 percent rating, effective February 22, 2013; for the left foot, the RO assigned a 10 percent rating for plantar fasciitis with pes cavus, effective October 1, 2006. The Veteran has not indicated that he is satisfied with these ratings. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). While plantar fasciitis and pes cavus are separate disabilities and the Veteran has not separately appealed the rating for the pes cavus disability, many of the symptoms associated with these two disabilities overlap. The evaluation of the same manifestation under different diagnoses is to be avoided. 38 C.F.R. § 4.14. Therefore, to avoid "pyramiding" as contemplated under 38 C.F.R. § 4.14, the Board will evaluate all impairment in the feet and determine which diagnostic code would allow for the highest rating with consideration of both his service-connected pes cavus and plantar fasciitis disabilities. The issue of service connection for a right hand disorder has been raised by the record via a statement submitted by the Veteran's representative in July 2013, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of service connection for a left hand disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The medical evidence demonstrates that the Veteran has had impairment akin to a moderate left foot injury for the entire appeal period. 2. The medical evidence demonstrates that the Veteran has had impairment akin to a moderate right foot injury effective October 1, 2006, and a moderately severe right foot injury, effective November 25, 2009. CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 10 percent for left foot plantar fasciitis with pes cavus are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5284 (2013). 2. The criteria for evaluations of 10 percent, effective October 1, 2006, and 20 percent, effective November 25, 2009, but not higher, for right foot plantar fasciitis with pes cavus are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5284 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in May 2006 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. The Veteran was also notified that he should submit evidence demonstrating the effect that his disabilities had on employment, in that he was told that he could submit statements from employers as to job performance, lost time, or other information regarding how his conditions affect his ability to work. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). As such, the May 2006 letter satisfied VA's duty to notify. Regarding the duty to assist, the RO has obtained the Veteran's service records and VA treatment records. Copies of the Veteran's private treatment records also have been associated with the claims file. The RO also has provided him with VA examinations in July 2006, April 2011, and February 2013. The examination reports adequately address all the necessary criteria for rating the claim. The Veteran was afforded a hearing before a Veterans Law Judge (VLJ) in April 2012, in which he presented oral argument. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran, who was represented by a Veterans Service Organization, acknowledged that the increased rating claim was on appeal and provided testimony regarding the present severity of his feet disabilities. The VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the claims. The VLJ asked specific questions, however, directed at identifying the criteria for an increased rating. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and present symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Also, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Rating The RO originally granted service connection for bilateral plantar fasciitis in January 2007 assigning a noncompensable rating. In April 2013, the RO separated the ratings for each foot and assigned a 0 percent rating for right foot plantar fasciitis with pes cavus, effective October 1, 2006, and a 20 percent rating, effective February 22, 2013; for the left foot, the RO assigned a 10 percent rating for plantar fasciitis with pes cavus, effective October 1, 2006. The Veteran seeks higher ratings for his service-connected feet disabilities. On his VA Form 9 he indicated that he experiences moderate to severe foot and heel pain that interferes with his mobility, job performance, and quality of life daily. The Veteran testified at the April 2012 Board hearing reiterating many of the same complaints regarding the feet disabilities. He also indicated that he wore custom fit shoe orthotics on both feet and a boot on his right foot at night. He noted that while he has bilateral plantar fasciitis, his right foot is worse than the left. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App 505 (2007). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Under the anti-pyramiding provision of 38 C.F.R. § 4.14 , the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the veteran. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's bilateral plantar fasciitis is rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5284, other foot injuries. A 10 percent rating is assigned for moderate foot injuries; a 20 percent rating is assigned for moderately severe foot injuries; and a 30 percent rating is assigned for severe foot injuries. A 40 percent rating is only warranted if there is "actual loss of use of the foot." Id. Acquired pes cavus (or clawfoot) is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5278. Slight pes cavus is assigned a 0 percent rating. Unilateral or bilateral pes cavus with great toe dorsiflexed, some limitation of dorsiflexion at the ankle, and definite tenderness under the metatarsal heads warrants a 10 percent rating. Pes cavus with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads warrants a 20 percent rating if unilateral; bilateral warrants a 30 percent rating. Pes cavus with marked contraction of the plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity warrants a 30 percent rating if unilateral; and a 50 percent rating if bilateral. The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 Turning now to the facts of this case, the service treatment records show both diagnoses of pes cavus and plantar fasciitis in September 2005. Prior to his retirement from service, the Veteran underwent a VA examination in July 2006. The examination report shows that the Veteran reported constant pain in his feet at a 6 out of 10. If he walked the pain would become worse. He also reported weakness and stiffness. There was no swelling, heat, or redness. There was easy fatigability and lack of endurance. Symptoms were present at rest, standing, and walking. The Veteran did not report any flare-ups. Both feet were similar in impairment. He did not use any ambulatory aids such as a cane, brace, or special shoes. He had used custom inserts in the past. Activities of daily living and his occupation were not affected by his feet. He continued to drive. On physical examination, as stated above, the Veteran's feet were both similar. There was no objective evidence of painful motion, edema, instability, weakness, or tenderness. Symptoms were subjectively reported by the Veteran. There was no functional limitation on walking or standing. He did not report any skin breakdown, callosities, or unusual shoe wear pattern . The Veteran's arches appeared to be within normal limits. There was no clawfoot deformity or other such deformities that were noticeable. The Achilles tendon and plantar fascial structures were tight. The diagnosis was mild plantar fasciitis of the bilateral feet. A November 2009 private treatment record shows the Veteran reported that his symptoms in the feet had increased to the point where they were interfering with activities of daily living. He was no longer able to run for physical activity; nor was he able to participate in long-distance walking. On physical examination there was a well-localized area of pain along the course of the plantar fascia of both feet, with the right foot more symptomatic than the left. The Veteran was noted to have pes cavus, a high arch, and mild contracture of the metatarsophalangeal joints. He also had a tight Achilles tendon and tight plantar fascial structures. Private treatment records dated from January 2010 to February 2010 show an assessment of plantar fasciitis with calcaneal spur syndrome, right more symptomatic than left, and pes cavus. In April 2011, the Veteran underwent another VA examination. The Veteran reported a daily resting pain of 5 on the right side that would flare to a 7 with activity; and on the left side pain at the level of 3, which would flare to a 5. Activities that tended to aggravate the feet were weight-bearing, standing, and walking. He could walk only approximately 100 yards without having to stop to rest. He wore custom orthotics on a daily basis and the right foot was splinted at night to prevent flexion and extension. The pain pattern did not affect his occupation, but did affect activities. He was severely limited due to pain with walking and despite stretching, orthotics, and nocturnal bracing. On physical examination there was no abnormal footwear or callus formations. All digits were freely moveable with no restrictions. Palpation of the midfoot on the medial aspect of the right foot revealed significant tenderness to light to moderate palpation. Minimal palpation of the hindfoot on the right revealed severe pain, more medial than lateral. There was no bony tenderness to malleolar palpation or tenderness to foot palpation across the foot dorsum. On the left foot, there was no pain to palpation throughout the midfoot and hindfoot surfaces of the plantar aspect. The Veteran walked with a limp favoring the right following foot stretches. The impression was pes cavus of the bilateral feet and severe plantar fasciitis on the right foot, secondary to pes cavus; and plantar fasciitis on the left foot, secondary to pes cavus. The Veteran underwent his final VA examination during the appeal period in February 2013. The diagnoses for the feet remained bilateral pes cavus and plantar fasciitis. The Veteran complained of pain in the arch and heel bilaterally, with worse pain on the right. He wore orthotics all the time and slept with a night splint on the right foot. There was some limitation of dorsiflexion at the ankles and a shortened plantar fascia on both feet. The examiner commented that the Veteran ambulated heel to toe with a slight limp but that his shoe wear pattern was normal bilaterally. There was moderate tenderness with palpation of the plantar fascia at the medial plantar aspect of the calcaneus. The examiner indicated that he would rate the plantar fascia symptoms as moderate on the left foot and moderately severe on the right foot. His symptoms were worse with weather changes and first ambulation in the morning, but his functional ability was not significantly limited by this. Prior to November 25, 2009, the medical evidence for both feet demonstrates no more than moderate impairment. The Veteran reported pain and weakness in the feet, with pain increasing after walking. However, the Veteran's activities of daily living and his occupation were not affected by his feet. He had full range of motion of the ankles with no change after repetitive motion. There was no objective evidence of painful motion, edema, instability, weakness, or tenderness. Even though the Veteran reported pain with walking, the examiner determined that during the examination there was no functional limitation on walking or standing. The Veteran's arches appeared normal; there was no clawfoot (pes cavus) deformity or other deformity; no flatfoot was noted; and no hallux valgus. Both feet were noted to be similar in symptomatology. These findings do not warrant a rating higher than 10 percent under Diagnostic Code 5284 for moderate foot injury. A compensable rating under Diagnostic Code 5278 (pes cavus) also is not warranted as the medical evidence shows that he did not have a pes cavus deformity on examination. He also had full range of motion of the ankles and had no other deformities in the foot. In addition a rating under Diagnostic Code 5276 (acquired flatfoot) does not apply, as the examiner in July 2006 noted that the Veteran did not have flatfoot. Also none of the impairment associated with the feet would warrant a compensable rating under Diagnostic Code 5276 even if the feet were rated by analogy under this code. The most the Veteran would receive would be a 0 percent rating for mild symptoms relieved by arch support. Thus, for the period of time prior to November 25, 2009, the medical evidence does not warrant separate ratings higher than 10 percent each, for right and left plantar fasciitis with pes cavus. However, the medical evidence shows that the right foot impairment was akin to a moderately severe foot injury as of November 25, 2009, the date of his private treatment record. At that time the Veteran reported increased symptoms related to his feet impairment with right foot pain more than left foot pain. He also indicated that he was no longer able to run for exercise or walk long distances. Subsequent medical records continue to support moderately severe impairment in the right foot. On the April 2011 VA examination the Veteran continued to report inability to walk prolonged distances due to his feet impairment. Palpation of the hindfoot revealed severe pain to minimal palpation on the right foot. The Veteran also walked with a limp favoring the right side following foot stretches. In February 2013 the examiner determined that the impairment in the right foot was "moderately severe". The examiner also noted that the Veteran had difficulty with ambulation in the morning and with weather changes, but that his functional ability was not significantly limited by this. The Board finds that overall this impairment more closely approximates the criteria for a moderately severe foot injury, as contemplated under Diagnostic Code 5284, which warrants a 20 percent rating for the right foot plantar fasciitis with pes cavus, effective November 25, 2009. A rating higher than 20 percent is not warranted under Diagnostic Code 5284, as the medical evidence does not show severe impairment in the right foot. While the examiner in April 2011 indicated that the Veteran had "severe" plantar fasciitis on the right foot and severe pain to minimal palpation of the hindfoot on the right, as previously noted, the use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. The Board finds that the evidence actually demonstrates more moderately severe impairment in the right foot since November 25, 2009. Even though the Veteran is limited in walking prolonged distances and running for exercise he is still able to walk for short distances. He has custom orthotics and wears a splint on his right foot at night, but does not use any assistive devices for walking. While he has trouble ambulating in the morning and with weather changes, and walked with a limp after doing stretching exercises during the examination in April 2011, the February 2013 examiner indicated that his functional abilities were not significantly limited by this. Thus, the medical evidence when evaluated as a whole does not warrant the criteria for severe right foot injury. The evidence also does not demonstrate that the Veteran has loss of use of his right foot. While the Veteran has significant limitations, he is still able to walk, stand, and drive even with the impairment associated with his right foot, albeit for short periods of time. The Board does not find that this demonstrates impairment that can be considered loss of use of the right foot. Therefore, a 40 percent evaluation under Diagnostic Code 5284 is not warranted. 38 C.F.R. § 4.71a. In addressing the left foot impairment, the medical evidence does not support a rating higher than 10 percent under Diagnostic Code 5284 for the entire appeals period, as the impairment in the left foot has been more akin to a moderate foot injury for this time frame. As previously discussed, the July 2006 VA examination report does not demonstrate more than moderate foot impairment in both feet. In November 2009, the private treatment record does indicate that the Veteran reported increased symptoms in his feet in that he no longer could run for exercise and had limitations in walking. However, he had more complaints in the right foot than the left. The April 2011 VA examination report continues to show no more than moderate foot impairment in the left foot. The Veteran complained of constant pain in the left foot at a level of 3 that flared to a level 5 with activities including standing and walking. The examiner also commented that the Veteran was "severely limited due to pain with walking and despite stretching and despite orthotics." However, on physical examination there was no tenderness to palpation across the dorsum of the entire left foot; left forefoot palpation did not have swelling, warmth, or tenderness. Left midfoot and hindfoot palpation also did not reveal pain throughout the midfoot and hindfoot surfaces of the plantar aspect. The Veteran limped favoring the right side, but walked normally on the left. Even though the examiner used the word "severe" in describing the Veteran's pain and limitations, the Board finds that the examination findings actually describe more moderate impairment in the left foot in that there was no pain on examination. Also, while the Veteran could not walk long distances, when he limped he only favored the right side. In February 2013, he was noted as having moderate tenderness with palpation of the plantar fascia at the medial plantar aspect of the calcaneus; the examiner commented that he would rate the left foot impairment as moderate. Overall, the Board finds that the impairment associated with the left foot plantar fasciitis with pes cavus is no more than moderate throughout the appeal period. With respect to higher ratings for both feet under Diagnostic Code 5278 (pes cavus), in November 2009 the Veteran had mild contracture of the metatarsophalangeal joints; he also had a tight Achilles tendon and tight plantar fascial structures. These findings do not demonstrate more than a 10 percent rating under Diagnostic Code 5278, because all toes are not shown to be tending to dorsiflexion, nor is there marked tenderness under the metatarsal heads. It was noted that in February 2013 there was shortened plantar fascia bilaterally, which is one of the criteria for a 30 percent rating under this diagnostic code. However, the remaining findings do not warrant the 30 percent rating. There was noted to be some limitation of dorsiflexion at the ankle on both sides in February 2013 (which warrants a 10 percent rating), rather than limitation of dorsiflexion at the ankle to a right angle (which warrants a 30 percent rating). In February 2013, it was further noted that the Veteran's pes cavus did not affect the toes; the toes all moved freely. The Veteran had pain in the arches and heels bilaterally, but there was no marked tenderness under the metatarsal heads. These findings when reviewed with the other evidence of record do not support the criteria for a rating higher than 10 percent under Diagnostic Code 5278. A higher rating under other diagnostic codes pertaining to the feet also is inapplicable. X-ray examination in November 2009 and April 2011 showed no residuals of fracture or dislocation in the feet. The February 2013 VA examination report also specifically noted that there was no malunion or nonunion of the tarsal or metatarsal bones, as contemplated under Diagnostic Code 5283. The medical evidence as of November 2009 continues to show that the Veteran does not have acquired flatfoot. It was noted in November 2009 that his arches were high. The April 2011 VA examination report also notes that the plantar arch was elevated on weightbearing and rest on both feet. It was further noted that the Achilles tendon on both sides was midline and nontender to palpation. Therefore a rating under Diagnostic Code 5276 is not warranted. None of the other diagnostic codes pertaining to feet disabilities allow for ratings higher than 10 percent. Therefore, while a higher rating of 10 percent is assigned for the right foot, effective October 1, 2006, a 20 percent rating, but not higher, for the right foot plantar fasciitis with pes cavus is warranted, effective November 25, 2009. However, a 10 percent rating is warranted for the entire appeal period for the left foot plantar fasciitis with pes cavus. The Board also has considered the ratings for neurological impairment of the lower extremity under 38 C.F.R. § 4.124a, but the medical evidence has not demonstrated any significant neurological impairment. The July 2006 VA examination report notes that posterior, tibial, and dorsalis pedis arteries were palpable; there was no evidence of vascular insufficiency. In November 2009, neurological examination in the feet was normal with intact sensation to sharp and dull discrimination. The February 2013 VA examination report also shows that neurosensory examination of both feet revealed all digits were intact to vibration, proprioception, light touch, and pressure sensation. None of these findings would warrant compensable ratings under the neurological rating criteria for lower extremity disabilities. The Veteran is competent to report symptoms associated with his feet disabilities, and there is no reason shown to doubt his credibility in this regard. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the severity of the clinical manifestations of his bilateral feet disabilities, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). And, even if his opinion were entitled to be accorded greater probative value, it is far outweighed by the medical evidence of record demonstrating clinical analysis of the feet. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In view of the foregoing, the evidence demonstrates entitlement to a rating of 10 percent for both feet, effective October 1, 2006, and 20 percent, but not higher, for the right foot disability, effective November 25, 2009, with the 10 percent remaining for the left foot for the entire appeal period. To the extent that any further increase is denied, there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57-58. An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. The Veteran is presently working, however; and the issue of unemployability has not been raised by the record. Therefore, any inferred TDIU claim is inapplicable in this case. III. Extraschedular Rating The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2013). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or 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 veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's bilateral feet disability (i.e., pain and limitation in walking and standing) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 10 and 20 percent ratings under Diagnostic Code 5284 contemplates symptoms attributed to a moderate and moderately severe foot injury, respectively. Thus, the Board finds that this rating reasonably describes the Veteran's disabilities. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. (Continued on the next page) ORDER Entitlement to a 10 percent rating, but not higher, for right plantar fasciitis with pes cavus is granted, effective October 1, 2006, subject to the rules governing the payment of monetary benefits. Entitlement to a 20 percent rating, but not higher, for right plantar fasciitis with pes cavus is granted, effective November 25, 2009, subject to the rules governing the payment of monetary benefits. Entitlement to a rating higher than 10 percent for left plantar fasciitis with pes cavus is denied. REMAND The Veteran seeks service connection for a left hand disability. The service treatment records are mostly negative for any findings related to his left hand. However, the Veteran reported complaints of pain and swelling in the bilateral hands on a March 2006 service treatment record and on a July 2006 VA examination report, both prior to his retirement from service. He was diagnosed with bilateral hand arthralgia on the July 2006 VA examination. He later was diagnosed with mild degenerative changes of the left hand in April 2012. The Veteran underwent a VA examination in February 2013 to determine the etiology of his left hand disability. The examiner found that the left hand disability was not related to service because no history of treatment or left hand injury while in service. The examiner also commented that the Veteran's present job requires repetitive work, which would be "subjected to abnormal bionechanical[sic] forces resulting in his current diagnosis of osteoarthritis." The examiner's opinion is inadequate because the examiner did not consider that the Veteran actually was found to have swelling and pain in his bilateral hands while he was still on active duty. The examiner also did not consider the Veteran's competent and credible lay statements concerning continued symptomatology in the Veteran's left hand since his military service. In addition, while the Veteran might presently be in a job requiring repetitive hand movements, this does not account for the fact that the Veteran also served for 20 plus years as a pilot in the Air Force, which would also involve repetitive movements of the hand. So, for these reasons, the case must be sent back for a supplemental opinion to address the etiology of the Veteran's current left hand disability. The Veteran's representative also argued that the opinion provided was inadequate because the examiner did not address the possibility of the Veteran having an undiagnosed illness related to his serving in the Persian Gulf under 38 C.F.R. § 3.317. However, the Board does not find that the examination report is inadequate for this reason, as the examiner stated that the Veteran had a known clinical diagnosis of osteoarthritis secondary to repetitive occupational and recreational use. As the Veteran has been found to have a known clinical diagnosis in his left hand, the issue of whether the Veteran has an undiagnosed illness in his left hand is no longer applicable. Nonetheless the examination report is inadequate for the reasons stated above. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all treatment he has received for his left hand disability since April 2012. Make reasonable efforts to obtain any records identified by the Veteran. Notify the Veteran of any unsuccessful efforts and indicate what further steps VA will make concerning his claim. 2. Following completion of the above, return the Veteran's claims file to the examiner who performed the February 2013 VA examination and opinion addressing the Veteran's left hand disability. If this examiner is no longer available to complete an addendum to his opinion, the Veteran should be scheduled for a new VA examination by an orthopedist to ascertain the origins or etiology of his present left hand disability. The claims folder is to be provided to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the claims folder. After a review of the claims folder and an examination of the Veteran, the examiner should perform a thorough orthopedic evaluation and determine what disabilities the Veteran presently has in his left hand, i.e., arthritis, etc. The examiner also should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that his current left hand disability had its clinical onset during active service or is related to any in-service disease, event, or injury (including his complaints of pain and swelling in 2006, prior to his retirement from service). In providing this opinion, the examiner should consider the Veteran's complaints of pain and numbness in his left hand in service and since service and the post-service diagnosis of degenerative changes in the left hand in April 2012. The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Ensure the examiner's opinion is responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 4. Finally, readjudicate the claim on appeal. If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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. 2013). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs