Citation Nr: 1506135 Decision Date: 02/10/15 Archive Date: 02/18/15 DOCKET NO. 09-26 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected bilateral pes planus. 2. Entitlement to an initial compensable disability rating for service-connected Freiberg's disease, left second metatarsal. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from March 2004 to December 2007. This appeal to the Board of Veterans' Appeals (Board) is from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which granted service connection for bilateral pes planus and Freiberg's disease, second left metatarsal, and assigned each an initial noncompensable disability rating. The RO in Houston, Texas, currently has jurisdiction of the claims. In November 2012, the Veteran testified via videoconference before the undersigned. In January 2013, the Board remanded this case. The Veteran submitted additional evidence. However, the Veteran and her representative waived RO review of this evidence. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. Prior to February 1, 2013, the Veteran's pes planus was mild in severity. 2. From February 1, 2013, the Veteran's bilateral pes planus resulted in pain on use of the feet which was not relieved by built-up shoe or arch support, but it did not result in severe pes planus, as manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. 3. For the entire appeal period, the Veteran's Freiberg's disease, left second metatarsal, stage IV, resulted in pain in that joint (diagnosed as arthritis), but it was not productive of moderately severe disability or worse. CONCLUSIONS OF LAW 1. Prior to February 1, 2013, the criteria for a compensable rating for bilateral pes plan have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 U.S.C.A. § 4.71a, Diagnostic Code 5276 (2014). 2. From February 1, 2013, the criteria for a 10 percent rating for bilateral pes planus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 U.S.C.A. § 4.71a, Diagnostic Code 5276 (2014). 3. For the entire appeal period, the criteria for a 10 percent rating for Freiberg's disease, left second metatarsal have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.59, 4.71a. Diagnostic Codes 5003, 5283 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a December 2007 letter prior to the initial adjudication of the claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claims. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). With regards to the claims for higher initial ratings, the Veteran is challenging the initial evaluations assigned following the granting of service connection. In Dingess the United States Court of Appeals for Veterans Claims (Court) held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the Appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in the NOD, the Veteran took issue with the initial disability ratings assigned, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. Id.; see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent the Veteran an SOC that contained, in pertinent part, the criteria for establishing entitlement to higher ratings and a discussion of the reasons and bases for not assigning higher ratings. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service treatment records as well as post-service medical records have been obtained and associated with the record. The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran, provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of the disabilities in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Finally, the Veteran testified at a Board hearing. The hearing was adequate as the Veterans Law Judge who conducted the hearings explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The claim was remanded in January 2013 and there was compliance with this remand. In obtaining additional medical information, the Board is satisfied there was compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claims. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, 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). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 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). Recently, 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 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). 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, 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. See 38 C.F.R. §§ 4.40, 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. Thus, 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). The Board notes that the intent of the rating 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. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Bilateral pes planus with plantar fasciitis has been rated according to Diagnostic Code 5276. Under Diagnostic Code 5276, mild flatfoot with symptoms relieved by built-up shoe or arch support is assigned a noncompensable (0 percent) rating. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. 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 as 20 percent disabling for unilateral disability and 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 Achilles tendon on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Freiberg's disease of the left second metatarsal fasciitis has been rated according to Diagnostic Code 5283. Under Diagnostic Code 5283, malunion or nonunion of the tarsal or metatarsal bones is assigned a 10 percent evaluation where it is moderate, a 20 percent evaluation where it is moderately severe, or a 30 percent evaluation if it is severe. Similarly, under Diagnostic Code 5284, other foot injuries are assigned a 10 percent evaluation if the disability is moderate, a 20 percent evaluation if the disability is moderately severe, or a 30 percent evaluation if the disability is severe. Hammertoes are rated under Diagnostic Code 5282, but a compensable rating requires involvement of all toes, unilaterally, which the Veteran does not have. The Veteran has been afforded several VA examinations. On a January 2008 examination, the Veteran exhibited the beginnings of pes planus. There was posterior tibial tendon syndrome that was with pain about the medial aspect of the mid foot over the course of the posterior tibial tendon as it dipped around the medial side of the foot. This syndrome portended the development of pes planus with a cascade of joint complaints. There was no other pain, weakness, stiffness, swelling, heat, or redness. There was some fatigability and lack of endurance. Symptoms were increased with standing and walking, but there were no symptoms while sitting. The Veteran was able to stand for up to 30 minutes, but then had foot pain. She used Tylenol for treatment, but orthotics did not help. There was a mild impact on her every day occupation and living. When lying down, her feet appeared normal. There was a normal longitudinal and transverse arch to each foot. The hindfoot was normal. The Achilles tendon was aligned normally with the os calcis. There was slight prominence at the medial aspect of the midfoot over the course of the posterior tibial tendon with tenderness in this area. There was also tenderness over the head of the left second metatarsal. With the Veteran bearing weight, there was the beginning collapse of the longitudinal arch of both feet and there was increased tenderness about the medial aspect of the midfoot over the course of the posterior tendon. There were no hammertoes. There was no hallux valgus and the motion at the metatarsophalangeal joint of the great toe was normal. There were no abnormal callouses, skin breakdown, unusual shoe wear, vascular, or skin changes. The right foot x-ray was normal. The left foot x-ray revealed Freiberg's disease affecting the left second metatarsal head, stage IV. From April 14, 2009 to May 2009, the Veteran was seen by VA for feet complaints. She complained of chronic arch pain due to pes planus as well as burning pain in her right third digit toenail. X-rays confirmed the presence of bilateral pes planus as well as Freiberg's disease of the left foot. She was provided an over-the-counter orthotic device. She underwent a toenail removal on the right. In August 2010, the Veteran was afforded another VA examination. At that time, she described arch pain and stated that the orthotics hurt her feet. On examination, there was tenderness to palpation of the mid arch over the base of the navicular. She had good arch non-weightbearing and still had an arch with weightbearing but less. She was able to heel-toe walk without difficulty. She was neurovascularly sensory intact and motor function was 5/5. She exhibited full range of motion of the ankles and there was no pain, fatigue, weakness, or incoordination. There were no lesions. There was no tenderness to palpation over the second metatarsophalangeal joints. There was no pain with subtalor motion in either foot. Her gait was normal. The examiner did not feel that there was pes planus shown on x-ray. He opined that the Veteran had mildly symptomatic medial arches without collapse with good function of the posterior tibial tendon. She had normal inclination angle of the calcaneus and no break in the cyma line. He ultimately said that the Veteran had mild flexible pes planus as well as old Freiburg disease of the second metatarsal head on the left foot which was asymptomatic. On February 1, 2013, the Veteran was afforded another VA examination. At that time, it was noted that the Veteran had pain on use of the feet, but did not have pain on manipulation. She did not have swelling on use or characteristic calluses or any calluses. The Veteran did not have relief from arch supports or built up shoes. There was no extreme tenderness of the plantar surfaces of the feet. The Veteran did not have decreased longitudinal arch height on weightbearing. There was no objective evidence of marked deformity of the foot. The Veteran did not have inward bowing of the Achilles tendon. The Veteran did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation. The Veteran did not have a Morton's neuroma, metatarsalgia, hammertoes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of a tarsal or metatarsal bones, bilateral weak foot, or other deformity. The Veteran did not use assistive devices. X-rays revealed degenerative or traumatic arthritis on the left (at site of Freiberg's disease). The Veteran's ability to work was not impacted. The examiner concluded that the Veteran's symptoms due to Freiberg's were "moderate". In November 2014, the Veteran was treated by a private provider. The Veteran reported left foot pain including with weightbearing and ambulation. The left second metatarsal had limited range of motion and was nonreducible. Freiberg's disease and a hammertoe were noted. The examiner discussed orthotics and injections, but noted that it was likely that the Veteran required a joint replacement. With regard to pes planus, the Veteran had only the beginning mild stages of the disease when initially examined by VA. Her pes planus continued to be described by the examiners as being mild in degree. The Veteran submitted recent correspondence in which she indicated that the pain on the left side has intensified. Since the February 2013 examiner did not describe the disease process as still mild and noted the pain on use, the Board accepts that the Veteran at this point had greater than mild disability, more nearly contemplating the moderate level with her pain on use of the feet which was not relieved by built-up shoe or arch support Accordingly and in affording the Veteran all reasonable doubt, a 10 percent rating is warranted from February 1, 2013. However, a higher rating is not warranted since the Veteran clearly does not have severe pes planus, as manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. With regard to the Freiberg's disease, left second metatarsal, the Veteran does not have malunion or nonunion of the tarsal or metatarsal bones. However, she does have degenerative arthritis. Nonetheless, the single toe joint is not compensable per 38 C.F.R. § 4.71, Diagnostic Code 5003. However, based on the pain, the initial notation that the Veteran's disease was already at level IV, and the indication that a joint replacement is needed, the Board finds that by analogy a 10 percent rating is warranted for painful motion, per 38 C.F.R. § 4.59. See Diagnostic Code 5003. The Board notes further that the February 2013 VA examiner described the Veteran's symptoms due to Freiberg's disease as moderate, and while this characterization is not dispositive, the associated clinical findings shown on examination support such a conclusion. See also, Diagnostic Code 5283. However, a higher rating is not warranted as one is not provided for the single toe and the Veteran's symptoms do not equal the functional equivalent of moderately severe disability of the whole foot, or worse. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence if against a compensable rating for bilateral pes planus prior to February 1, 2013, but the evidence supports a higher rating of 10 percent for pes planus as of February 1, 2013, and a 10 percent rating Freiberg's disease, left second metatarsal, for the entire appeal period. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See 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 disabilities are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe her disabilities. There have not been any hospitalizations or marked interference with employment since VA examiners indicated that there is no such interference. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Prior to February 1, 2013, a compensable rating for bilateral pes plan is denied. From February 1, 2013, a 10 percent rating for bilateral pes planus is granted, subject to the law and regulations governing the payment of monetary benefits. For the entire appeal period, a 10 percent rating for Freiberg's disease, left second metatarsal is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs