Citation Nr: 1340163	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  12-07 536	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an initial compensable rating for a right calcaneal spur with degenerative joint disease of the right foot and right ankle, claimed as heel pain and plantar fasciitis.


ATTORNEY FOR THE BOARD

J. Taylor, Associate Counsel


INTRODUCTION

The Veteran had active military service from October 1996 to October 2000.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in April 2010 by a Regional Office (RO) of the Department of Veterans Affairs (VA).  

Documents on Virtual VA are either duplicative of the evidence of record or are not pertinent to the present appeal.  The Veterans Benefits Management System (VBMS) does not include any documents at this time.  


FINDING OF FACT

The Veteran's service-connected right calcaneal spur with degenerative joint disease of the right foot and right ankle, claimed as heel pain and plantar fasciitis, is manifested by X-ray evidence of arthritis with pain, swelling, and stiffness; but marked limitation of motion is not present.


CONCLUSION OF LAW

The criteria for a 10 percent disability evaluation, and no higher, for a right calcaneal spur with degenerative joint disease of the right foot and right ankle, claimed as heel pain and plantar fasciitis, have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5271 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

      
      
      
      Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided pre-adjudication VCAA notice by letter, dated in January 2010.  Where, as here, service connection has been granted and an initial rating has been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disabilities, does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating.  Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008).  

      Duty to Assist

VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim.  Service treatment records, post-service treatment records, and lay statements have been associated with the record.  

Additionally, during the appeal period, the Veteran was afforded a VA examination in April 2010.  The Board has carefully reviewed the VA examination of record and finds that the examination, along with the other evidence of record, is adequate for rating purposes.  Specifically, the examination report contains sufficient findings to rate the Veteran's disability under the appropriate diagnostic criteria.  Thus, with respect to the Veteran's claim, there is no additional evidence which needs to be obtained.  

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.

II.  Rating Principles

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38
U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. 
§ 4.7. 

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Furthermore, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  Joints that are actually painful, unstable, or maligned due to a healed injury are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.

The Veteran's service-connected right calcaneal spur with degenerative joint disease of the right foot and right ankle, claimed as heel pain and plantar fasciitis, is currently provided a noncompensable rating under Diagnostic Code 5271.  Under this diagnostic code, a 10 percent rating is warranted for moderate limitation of ankle motion, and a 20 percent rating is warranted for marked limitation of motion.  Further, under appropriate VA regulations, full range of ankle dorsiflexion is from zero to 20 degrees, and full range of ankle plantar flexion is from zero to 45 degrees.  38 C.F.R. § 4.71, Plate II.

The descriptive terms "moderate" and "marked" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence for an "equitable and just" decision.  38 C.F.R. § 4.6.

Additionally, Diagnostic Code 5003 provides a rating of 10 percent for a joint with degenerative arthritis established by X-ray findings, and objective evidence of limitation of motion, when the limitation of motion does not meet the criteria for a compensable rating under the appropriate diagnostic codes for the specific joint.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

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 Diagnostic Code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 

III.  Right Calcaneal Spur with Degenerative Joint Disease of the Right Foot and Right Ankle

The Veteran is currently in receipt of a noncompensable, zero percent rating for a right calcaneal spur with degenerative joint disease of the right foot and right ankle, claimed as heel pain and plantar fasciitis.  He contends that an initial compensable rating is warranted for his service-connected right calcaneal spur with degenerative joint disease of the right foot and right ankle based on functional loss due to pain on movement.  See March 2011 notice of disagreement. 

Upon careful review of the evidence, the Board finds that the Veteran is entitled to an initial compensable rating of 10 percent, but no higher, for his right calcaneal spur with degenerative joint disease of the right foot and right ankle.  

On VA examination in April 2010, the Veteran reported pain in the right foot which occurs four (4) times per day and lasts for one (1) hour at a time.  He explained that the pain is localized, burning, aching, and sharp.  He indicated that the pain level is 7/10.  The Veteran reported that the pain can be exacerbated by physical activity.  The Veteran indicated that the pain can be relieved by rest, Aleve, Tylenol, ice, and heat.  He explained that at the time of the pain, he can function with medication.  The Veteran reported that he has stiffness at rest, and pain, stiffness, and swelling while standing or walking.  The Veteran indicated that he is not receiving any treatment for his condition.  He reported that because of his condition, he cannot play with his children, sometimes he cannot work efficiently, and sometimes the pain is so bad he cannot stand on his right foot.

On physical examination, the Veteran's gait and posture were within normal limits.  There were no signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern.  The Veteran did not require an assistive device for ambulation.  The right ankle showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, or ankylosis.  The examination reflected full range of motion in the right ankle with dorsiflexion from 0 to 20 degrees, planter flexion from 0 to 45 degrees, inversion from 0 to 30 degrees, and eversion from 0 to 20 degrees.  The VA examiner noted that the right ankle was not painful with motion.  There were no additional limitations noted with repetition of movement.  Examination of the right foot did not reveal any tenderness, painful motion, weakness, edema, heat, redness, instability, atrophy, or disturbed circulation.  There was active motion in the metatarsophalangeal joint of the right great toe.  Palpation of the plantar surface of the right foot revealed slight tenderness.  Alignment of the Achilles tendon was normal on the right side.  Pes planus, pes cavus, hammer toe, Morton's Metatarsalgia, Hallux valgus, and Hallus rigidus were not present.  

X-ray findings for the right foot were abnormal; findings showed a Plantar calcaneal spur with degenerative joint disease of the right ankle joint and the right first MTP joint.  The examiner diagnosed the Veteran with a right calcaneal spur with degenerative joint disease of the right foot and right ankle.  The examiner indicated that the Veteran's subjective factors were pain, stiffness, and swelling in the right heel, with the pain radiating to the right foot and ankle.  The examiner found that the effect of the condition on the Veteran's usual occupation and daily activity was mildly limiting because the Veteran would experience pain and discomfort with prolonged walking and standing.  

The Board finds that because the Veteran has objective findings of arthritis in his right foot and ankle with complaints of pain, swelling, and stiffness, he is entitled to a compensable rating of 10 percent under Diagnostic Code 5003 for the entire rating period.  The evidence indicates that the Veteran's right calcaneal spur with degenerative joint disease of the right foot and right ankle is manifested by X-ray evidence of arthritis with complaints of recurring pain, stiffness, and swelling.  Although the Veteran had full range of motion in the ankle on examination, the Board finds that there is sufficient evidence to show the Veteran has some painful motion in his right foot and ankle as a result of his arthritis.  The VA examiner found that the Veteran would experience pain and discomfort with prolonged walking and standing.  The Veteran's lay statements are in accord; he indicated that he could no longer play with his children, sometimes he could not work efficiently, and sometimes the pain was so bad he could not stand on his right foot.  Furthermore, in a February 2010 statement, the Veteran's supervisor indicated that his foot pain affected his performance on the job.  

Taking into account all of the evidence set out above, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence of record supports assigning a compensable rating of 10 percent for his right calcaneal spur with degenerative joint disease of the right foot and right ankle for the entire period on appeal, based on the objective findings of arthritis in the right ankle and foot with painful motion.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (indicating this minimum compensable rating is to be assigned even when there is not a compensable degree of limitation of motion); see also 38 C.F.R. §§ 4.40, 4.45 (2013).   

The Board finds that a rating higher than 10 percent under Diagnostic Code 5271 is not warranted as the April 2010 VA examination did not indicate that the Veteran suffered from marked limitation of motion.  Additionally, there were no flare-ups, additional limitations following repetitive use, incoordination or fatigue.  

The Board has also considered whether a higher evaluation is available under other provisions of the code.  The Veteran, however, is not shown to have ankylosis of the ankle to warrant an evaluation under Diagnostic Code 5270.  See 38 C.F.R. § 4.71a.  During the VA examination, the Veteran had full range of motion in the ankle and no ankylosis.  There is also no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy to warrant ratings under Diagnostic Codes 5272-5274.  Id.  The Board finds, therefore, that a separate or higher evaluation is not warranted for the Veteran's right calcaneal spur with degenerative joint disease of the right foot and right ankle under other provisions of the Diagnostic Code.

In summary, the Board finds that the evidence supports granting an initial compensable rating of 10 percent, but no higher, for the Veteran's right calcaneal spur with degenerative joint disease of the right foot and right ankle, based on X-ray evidence of arthritis with complaints of pain, stiffness, and swelling. 

IV.  Additional Considerations

The Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of Compensation for consideration of an extraschedular rating.  38 C.F.R. 
§ 3.321(b)(1).  The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical.
 
The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. 
 
If the criteria reasonably describe the veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology pertaining to his service-connected right calcaneal spur with degenerative joint disease of the right foot and right ankle.  The Veteran's right calcaneal spur with degenerative joint disease of the right foot and right ankle is manifested by X-ray evidence of arthritis with pain, stiffness, and swelling.  The ratings assigned contemplate these impairments.  For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).

Finally, while the Veteran's supervisor observed that the Veteran complained of foot pain that affected his job performance, there is no evidence of record that the Veteran's is unable to secure or follow a substantially gainful occupation as a result of his right calcaneal spur with degenerative joint disease of the right foot and right ankle has markedly interfered with employment.  Therefore, the matter of entitlement to a total disability rating based on individual unemployability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

An initial compensable rating of 10 percent, but no more, is granted for the Veteran's right calcaneal spur with degenerative joint disease of the right foot and right ankle, subject to the laws and regulations governing the payment of monetary benefits. 

___________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs