Citation Nr: 1336950 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-23 175A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an evaluation in excess of 20 percent for status post excision of dorsal exostosis of the first metatarsal medial cuneiform joint, with symptomatic pes planus and degenerative joint disease secondary to biomechanical fault, left foot ("left foot disability"). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1984 to April 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's left foot disability manifested in objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities; the Veteran's left foot disability did not result in unilateral pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achilles on manipulation, that was not improved by orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a service-connected left foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.159, 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.50, 4.59, 4.71a, Diagnostic Code 5276 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In response to the Veteran's claim, he was sent a letter in July 2008 that informed him of the information and evidence needed to substantiate his claim for an increase. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The duty to assist also includes providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). Here, several VA examinations were performed on the Veteran's feet, including examinations in February 2010, August 2009, May 2009, and December 2008. There are no apparent inconsistencies or ambiguities in the examination reports, and the Veteran has not challenged their adequacy or thoroughness, or the competency of the examiner. Accordingly, VA's duty to provide a VA examination is satisfied. Moreover, in connection with the current appeal, the evidence of record includes the Veteran's service treatment records, statements in support of the claim by the Veteran and his representative, VA treatment records, and several VA examinations of the Veteran's feet. Although the Veteran has indicated a possibility of a left foot surgery, throughout treatment records he repeatedly declined to pursue such an option. Therefore, the Board finds that the Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Moreover, if the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Veteran's left foot disability is rated under Diagnostic Code 5276, which provides ratings for acquired flatfoot. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achilles on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2013). See also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this case, in his January 2008 claim for increase, the Veteran asserted that his service-connected status post excision of dorsal exostosis of the first metatarsal medial cuneiform joint, with symptomatic pes planus and degenerative joint disease secondary to biomechanical fault, left foot, had worsened. Turning to the evidentiary record, in February 2007, the Veteran re-established care at the Omaha VA Medical Center (VAMC). At that time, he explained he had injured his left foot "a long time ago" and had received private treatment for a painful left foot. In an October 2007 physical therapy consultation at Omaha VAMC, the Veteran reported wearing a brace and different shoes at work to decrease his pain. He indicated the boots were "helpful." Physical examination revealed normal 5/5 muscle strength in all major muscle groups. There was some palpable dorsal exostoses and abduction deformity to the left midfoot. In February 2008, lay statements from "R.H." and "R.L." were submitted. R.H. indicated he knew and worked with the Veteran for three and a half years. R.H. explained that the Veteran may be on his feet all day at work. R.H. explained he invited the Veteran to his home for social occasions, but the Veteran "seldom" came due to his pain. R.L. explained he knew the Veteran for thirteen years and observed the Veteran's pain and worsening walk. In a March 2008 VA foot examination, the Veteran again described left foot pain and flare-ups that could last for hours. No evidence of abnormal weight bearing was found, and the achilles tendon alignment was normal. However, the Veteran's gait was antalgic. He indicated the use of orthotic inserts, and the efficacy of the inserts was described as fair. The examiner stated, "shoe inserts and special shoes help." Upon examination, there was no objective evidence of swelling or instability. However, there was objective evidence of tenderness, painful motion, and weakness. After repetitive use, the examiner noted mild to moderate weakness, fatigue, and mild incoordination of the left foot. However, the examiner indicated there was no limitation following repetitive use. He could not however, evaluate additional limitation following repetitive use during flare-ups without resorting to speculation. In May 2008 and June 2008, VA treatment for the Veteran's pes planus continued, with notation of pain. The Veteran indicated he did not want additional surgery. In December 2008, the Veteran underwent another VA examination; this one for his right foot. However, left foot symptomatology was also addressed. The Veteran indicated that he occasionally would not wear his shoe orthotics because the orthotics themselves caused increased pain. Upon examination of the left foot, there was evidence of tenderness, but no evidence of painful motion, swelling, instability, or weakness. Mild pes plenus was diagnosed, and an antalgic gait was observed. There was no foot malalignment. Private treatment records from February 2008 through February 2009 from "Dr. K.D." show the Veteran was treated for left foot pain. He reported use of his walking cast and shoe inserts on a daily basis but that the inserts were not providing sufficient support. Dr. K.D. recommended and eventually cast the Veteran for custom orthotics. However, by February 2009, the Veteran reported that the orthotics were not helping him as much as they previously did. Dr. K.D. diagnosed arthritis and hallux rigidus. In March 2009, the Veteran contacted Omaha VAMC, complaining of pain shooting up his leg. The Veteran reported pain in his left foot when standing or walking. He also requested new inserts for his shoes. In April 2009, at the Omaha VAMC, physical examination revealed intact sensation distally bilaterally and a positive Tinel's sign with percussion overlying the left dorsal midfoot. A palpable boney enlargement overlying the left dorsal midfoot was also noted. The Veteran demonstrated a 5/5 muscle strength throughout. At that time, surgical options were presented, but the Veteran did not want surgery; instead, a TENS unit was ordered, and the Veteran was sent to physical therapy. In May 2009, the Veteran underwent a VA examination for the left foot. The Veteran described sharp, radiating pain in his left foot, making standing difficult. Other symptoms included swelling, heat, redness, stiffness, and fatigability. However, the Veteran indicated that he could tolerate standing at work when wearing his cam walker/boot. Moreover, the Veteran reported no additional functional limitation when wearing the boot. The Veteran also stated he did not use a cane but would use a broom at work for support. The Veteran reported flare-ups occurring weekly that could last for hours or up to a day in duration. During flare-ups, the Veteran reported swelling, redness, and difficulty weight-bearing. The Veteran identified alleviating factors, such as rest, ice, elevation, soaks, medications, and the use of a TENS unit. The examiner indicated that additional limitation due to repetitive use during a flare-up could not be expressed without resorting to mere speculation. Upon examination, there was no evidence of instability or weakness, but there was evidence of painful motion, swelling, tenderness, and abnormal weight bearing, with an unusual shoe pattern noted. There was no foot malalignment and only mild pronation was noted. The examiner diagnosed mild degenerative disease of the AP joint of the first toe and also at the base of the first metatarsal. In July 2009, the Veteran submitted a statement describing his left foot symptoms. The Veteran stated that his left foot is painful and he has difficulty walking and standing. The Veteran also stated that he has missed work due to his symptoms and that he has considered additional surgery, but was concerned because such surgery would place more holes in his foot. The Veteran also indicated he could not drive a standard truck or motorcycle due to his left foot symptoms and that he had to move into a ranch-style home. In August 2009, the Veteran underwent a VA examination to assess his left foot degenerative joint disease. The examiner reviewed the claims file and all pertinent evidence to conclude that the Veteran's left foot degenerative joint disease is as least as likely as not caused by or a result of the Veteran's service-connected left foot condition. After a full review of the all the evidence of record, the Board finds that the preponderance of the evidence is against a disability evaluation in excess of 20 percent for the Veteran's left foot disability under Diagnostic Code 5276. While midfoot pronation has been noted, specifically in the most recent May 2009 examination, marked pronation or marked inward displacement has never been indicated in the record. Also, the evidence has not reflected either extreme tenderness of plantar surfaces of the feet or severe spasm of the tendo achilles on manipulation. Moreover, VA treatment records, and statements from the Veteran himself, indicate improvement with the use of proper orthotics. Only once, in December 2008, did the Veteran indicate that his orthotics did not ease his pain, and, subsequently, the Veteran was fitted for custom orthotics and provided new shoe inserts, upon his request, from VA. After that time, the Veteran reported his symptoms improving with the use of orthopedic shoes or appliances. Specifically, in May 2009, the Veteran reported there was no additional functional limitation when wearing his boot. The Board has also considered the provisions of 38 C.F.R. §§ 4.40 , 4.45, 4.59 (2010), and the holding in DeLuca, 8 Vet. App. at 202 . However, an evaluation in excess of 20 percent for the Veteran's left foot disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board recognizes that the Veteran experiences severe pain in his left foot. In addition, in the Veteran's March 2008 VA examination, although he demonstrated mild to moderate weakness, fatigue and mild incoordination of the left foot, the examiner concluded there was no additional limitation as a result of repetitive use. Moreover, in the December 2008 and May 2009 VA examinations, there was no finding of instability or weakness. As such, the Board finds that the Veteran is not entitled to an increased disability rating under DeLuca, supra. Moreover, the Board finds no other diagnostic codes would be appropriate to evaluate the Veteran's left foot disability. See Schafrath, 1 Vet. App. at 595. In particular, the Board considered the August 2009 VA foot examination in which the examiner concluded that the Veteran's left foot degenerative joint disease was as least as likely as not caused by or a result of the Veteran's service-connected status post excision of dorsal exostosis of the first metatarsal medial cuneiform joint, with symptomatic pes planus and degenerative joint disease secondary to biomechanical fault, left foot. However, the Veteran is already rated at 20 percent for this issue under Diagnostic Code 5276. The maximum rating for degenerative arthritis under Diagnostic Code 5010 would be 10 percent (a rating for one major joint - the foot). 38 C.F.R. § 4.71a. Thus, because the Veteran is already in receipt of the maximum 20 percent evaluation under Diagnostic Code 5276, a higher rating under Diagnostic 5010 is not available. The Board has also considered whether an extraschedular evaluation is warranted in this case under 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board recognizes that the Veteran's disability has been productive of functional impairment. The assigned rating of 20 percent rating reflects that his disability is productive of impairment in earning capacity. However, the record does not reflect that the average industrial impairment from his disability would be in excess of that contemplated by the assigned rating. The Veteran's left foot disability has been primarily manifested by mild pes planus with pain, stiffness, and some tenderness, and such disability has resulted in functional impairment such as difficulty with ambulation, standing, and walking, especially for prolonged periods. Such manifestations are reasonably contemplated by the schedular criteria for a 20 percent rating under Diagnostic Code 5276, which contemplates severe unilateral flatfoot, with objective evidence of marked deformity such as pronation and abduction, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. The record does not reflect that the Veteran's pes planus has caused impairment in earning capacity above what would be average for such disability. Finally, the Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the Veteran is employed. Although he has stated he has missed work because of foot pain, he has not alleged he is unemployable because of this condition. ORDER Entitlement to an evaluation in excess of 20 percent for status post excision of dorsal exostosis of the first metatarsal medial cuneiform joint, with symptomatic pes planus and degenerative joint disease secondary to biomechanical fault, left foot, is denied. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs