Citation Nr: 1452097 Decision Date: 11/24/14 Archive Date: 12/02/14 DOCKET NO. 11-03 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 10 percent for right foot bursitis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1987 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Oakland, California Department of Veterans Affairs Regional Office (RO). This matter was previously before the Board in May 2014 when it was remanded for further development. At the time of the May 2014 remand, the issue of entitlement to a separate compensable rating for service-connected right Achilles tendonitis was also before the Board. However, an October 2014 RO rating decision granted a separate 10 percent rating for right Achilles tendonitis. As the Veteran has not filed a notice of disagreement with the rating or effective date assigned, the Board considers the October 2014 rating decision a full grant of the benefit sought on appeal as to that issue. FINDING OF FACT The evidence of record does not show that the Veteran's right foot bursitis more closely approximates a moderately severe foot injury. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a right foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107, (West 2002); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA must specifically inform the claimant and representative, if any, of which part, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2014); 38 C.F.R. § 3.159 (2014). Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement also applies to the effective date and rating elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the Veteran has been provided adequate notice in response to the claim. The record shows that the Veteran was mailed a letter in April 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The April 2009 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claim. The Board finds the Veteran has been provided adequate assistance in response to the claim. The Veteran's service medical records are of record. VA treatment records have been obtained, although the Veteran has reported he has not sought post-service treatment for his right foot bursitis. The Veteran has been provided appropriate VA examinations. Neither the Veteran nor representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is unaware of any outstanding evidence. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2014). 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. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a) , 4.1 (20134). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient. A coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2014). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2014). That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.45 (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2014). When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, or pain on movement. 38 C.F.R. § 4.45 (2014). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2014). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board finds nothing in the record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran asserts that he is entitled to a higher rating for service-connected right foot bursitis, currently rated 10 percent disabling under Diagnostic Code 5019. 38 C.F.R. § 4.71a (2014). Diagnostic Code 5019 instructs that the disability should be rated based on limitation of motion of the affected part, as degenerative arthritis. Diagnostic Code 5003 addresses degenerative arthritis. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2014). Under Diagnostic Code 5284, or other foot injuries, a 10 percent rating requires moderate residuals of other foot injuries. A 20 percent rating requires moderately severe residuals. A 30 percent rating requires severe residuals. With actual loss of use of the foot, a 40 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2014). Words such as moderate, moderately severe, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that decisions are equitable and just. 38 C.F.R. § 4.6 (2012). Use of terminology such as severe by VA examiners and others, although 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 (2014). Other diagnostic codes relating to the foot are Diagnostic Code 5276 (flatfoot, acquired), Diagnostic Code 5277 (bilateral weak foot), Diagnostic Code 5278 (claw foot, acquired), Diagnostic Code 5279 (metatarsalgia, anterior), Diagnostic Code 5280 (hallux valgus), Diagnostic Code 5281 (hallux rigidus), Diagnostic Code 5282 (hammer toe), and Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones). Those conditions are not shown on examination, or in the medical evidence of record, and application of those diagnostic codes is not warranted. 38 C.F.R. § 4.71a (2014). At a May 2009 VA examination, the Veteran reported that his right foot bursitis was related to running and he first noticed it during physical training. He reported that he used orthotics, sought treatment from podiatry, and was given a controlled ankle motion (CAM) walker boot. He reported that he had pain if he walked for about 15 minutes without the CAM walker boot and that if he walked for more than five miles he started limping, which lasted for one day. On examination, the Veteran had normal strength in the right foot. The right heel was tender, but there was no tenderness over the remainder of the foot and there and was no redness or swelling. Dorsiflexion was to 20 degrees, without pain, and plantar flexion was to 45 degrees, without pain. There was no loss of range of motion on repetitive testing. The examiner assigned a diagnosis of right foot bursitis with incidental hallux valgus on X-ray. At an August 2014 VA examination, the Veteran reported that he had not sought treatment for his right foot pain since service, but treated pain with over the counter NSAIDs, with good response. He reported flare-ups of pain four to five times a week, which lasted two to three hours at a time. He reported the pain was dull, throbbing, and a 4 to 6 on a scale of 1 to 10. He reported the pain was aggravated by walking for 20 to 25 minutes or standing more than 20 minutes and was relieved my Motrin. On examination, it was noted that the Veteran's foot was tender to touch from the right heel to the middle of the arch. The pain was noted as sharp and a 5 on a scale of 1 to 10. While hallux valgus was noted on the May 2009 VA examination, there was no finding of hallux valgus noted at the August 2014 VA examination. No other physical findings were noted. The examiner assigned a diagnosis of right foot bursitis. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his right foot bursitis. The Board notes that the Veteran's current 10 percent rating was assigned based on pain on motion pursuant to 38 C.F.R. § 4.59. In order to warrant a higher schedular rating, the Veteran's symptoms would have to be shown to constitute a moderately severe disability of the foot. Based on the medical evidence of record, the Board is unable to find that the right foot disability is moderately severe. The Board notes that the Veteran has reported he has not sought any post-service treatment for right foot bursitis and is able to manage his pain solely with over the counter NSAIDs, with good response. Further, there is no evidence that the Veteran's right foot bursitis has caused limitation of motion or any symptoms of weakness of fatigability, or that he experiences additional pain not currently accounted for in his 10 percent rating. In addition, any limitation of ankle motion has been rated separately in the rating for right ankle Achilles tendonitis. Therefore, that symptom of limited or painful ankle motion cannot be considered to support a rating for right foot bursitis. 38 C.F.R. § 4.14 (2014). Consideration has been given to assigning staged ratings. However, at no time during the period on appeal has the disability warranted a higher schedular rating than that currently assigned. Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, the Board finds that a higher disability rating for the Veteran's right foot bursitis is not warranted. The Board finds that the preponderance of the evidence is against the assignment of any higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5284(2014); 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1) (2014). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). The record shows that the manifestations of the disability on appeal are contemplated by the schedular criteria. There is no indication that the average industrial impairment from the disability is in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization. Further there is no evidence or allegation that the Veteran's right foot bursitis has any impact on the Veteran's ability to work. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not warranted. Additionally, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) ORDER Entitlement to a rating in excess of 10 percent for right foot bursitis is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs