Citation Nr: 1510050 Decision Date: 03/11/15 Archive Date: 03/24/15 DOCKET NO. 10-26 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 30 percent for service-connected status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity prior to September 5, 2012, and from February 1, 2013. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1982 to August 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Waco, Texas Department of Veteran Affairs (VA) Regional Office (RO) that continued a 30 percent rating for the Veteran's status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity. In his June 2010 substantive appeal, the Veteran requested a Travel Board hearing, but withdrew that request by an August 2010 correspondence. During the pendency of this appeal, an October 2012 rating decision granted a temporary total disability (100 percent) rating due to convalescence under 38 C.F.R. § 4.30 from September 5, 2012, and resumed the 30 percent rating from February 1, 2013. Therefore, the present appeal concerns the ratings for the period prior to and following that temporary rating, and the issue on appeal has characterized accordingly. FINDING OF FACT At no time prior to September 5, 2012 or from February 1, 2013 is the Veteran's status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity shown to have been manifested by loss of use or amputation of the right foot or diminished functionality equivalent to amputation or loss of use. CONCLUSION OF LAW A rating in excess of 30 percent for the Veteran's status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity is not warranted prior to September 5, 2012, or from February 1, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes (Codes) 5166-67, 5276-84 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. In a claim for increase, the VCAA requirement is generic notice, that is, notice of 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, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). By correspondence dated in October 2008, VA notified the Veteran of the information needed to substantiate and complete his claim, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain. The Veteran was also provided notice as to how VA assigns disability ratings and effective dates. This matter was most recently readjudicated in the October 2014 supplemental statement of the case (SSOC). In addition, the Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. VA examinations were provided in conjunction with this appeal in June 2009 and January 2012. Together, these examinations reflect a consideration of the entire record and describe the pertinent findings and features needed to apply the relevant rating criteria. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Veteran contends that his service connected status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity warrants a rating in excess of 30 percent for both periods on appeal. In his January 2010 notice of disagreement, he states that he first injured his foot in service, underwent right foot surgery in 1983, and has been informed that he has since been walking on a broken foot. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In a claim for increase the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). "Staged" ratings may be assigned for distinct periods where the severity of the disability carried. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In December 2008, VA records note the Veteran had a cavus foot type with a significant incision, laxity at the ankle joint, and rigid hallux on the right interphalangeal joint. The Veteran reported shooting pain in his right foot. A January 2009 VA MRI showed a marrow edema in the middle cuneiform with degenerative changes between the cuboid bone and lateral cuneiform. The Veteran reported constant pain, a throbbing sensation radiating to his knee worsened by ambulation, and redness. He denied swelling, numbness, or tingling. On June 2009 VA examination, the Veteran reported having right foot surgery in 1983, after falling during active duty. Since then, he complains of constant right foot pain and a cavus deformity, but denied any further surgical intervention. At the time, he described daily right foot pain, rated as 8.5 to 9/10 in severity. He said it increased to "14/10," and that the bottom of his right foot felt like fire. He reported throbbing and aching pain on the top of his right foot, painful popping and clicking, limping, and occasional swelling. He used a brace at the time and stated the right foot gave out periodically. His symptoms allegedly prohibited him from running, playing sports, and prolonged standing or walking, and caused difficulty lifting heavy objects. He reported flare-ups at the end of the day. On physical examination, the examiner found an obvious cavus deformity with a very high arch. He also noted a hallux rigidus on the right great toe. The Veteran's right foot was tender to palpation from the first to fifth metatarsal head. Distal sensation was intact, and he had several surgical scars which were highly mobile, nontender, not hypertrophied, without keloid formations, did not restrict motion, and were flat. Range of motion testing shows dorsiflexion to zero degrees and plantar flexion to 20 degrees (with pain at the end range). The Veteran was able to hold his right foot neutral at 90 degrees. He could not bear weight on his right foot, and when he did, the arch did not flatten. There was no evidence of hammer toes, claw foot, or hallux valgus. In October 2009, VA records show complaints of pain in the right heel, though the Veteran reported that a previously reported burning pain in his right foot had not returned. In January 2010, VA records noted complaints of right foot pain traveling up the shin. Several subsequent VA treatment records include notations of chronic right foot pain, coupled with complaints of his foot locking up and falling. On January 2012 VA examination, the Veteran reported dorsal and plantar foot pain, rated at 8 to 10/10 in severity. He remembers having right foot surgery during service after falling approximately 15 feet, but did not know the diagnosis or what procedures were done. He stated that his great toe was fused. The examiner noted several surgical incisions to the dorsal metatarsophalangeal joints of the second to fourth toes, the lateral foot, and the dorsomedial foot. The Veteran stated his surgical scars were not problematic, and that he no longer used braces, orthotics, or assistive devices. He reported walking and standing was limited to ten minutes at a time, making activities of daily living difficult. He also reported painful popping and clicking to the dorsum, locking up of the foot, stiffness, swelling, and episodes of unsteadiness and falling. He denied any heat or redness. The examiner diagnosed right claw foot causing hammer toes of the second to fourth toes. He also found a hallux rigidus productive of mild to moderate symptoms. The examiner noted that it was unknown whether the Veteran had a history of hallux valgus surgery, but found no evidence of clinical hallux valgus or symptoms thereof. His claw foot had no effect on the plantar fascia or dorsiflexion and varus deformity. There were no notations of malunion or nonunion of the tarsal or metatarsal bones, evidence of weak foot, or other foot injuries. The examiner also noted tenderness to the dorsal right foot, pain with torsion of the forefoot, antalgic gait with weight-bearing on the posterolateral right heel, and a large callus on the posterolateral right heel. The Veteran could not perform heel to toe walking due to pain. Sensation was intact, and pulses and capillary refilling were good. X-ray studies showed evidence of right foot arthritis, but not in multiple joints. In February 2012, VA records show the Veteran requested physical therapy for his right foot, which locks up and causes him to walk on the outside of his foot. He could plantar flex his right forefoot, but his range of motion (ROM) was somewhat restricted. He had pain in the midfoot and lateral pain due to imbalance. In September 2012, he underwent a right foot second metatarsal cuneiform fusion operation. VA treatment records indicate the procedure was uneventful, and follow-up treatment notes show no abnormal developments during recovery. As noted above, the Veteran was granted a temporary total disability rating based on convalescence following that surgery. In November 2012, statements from both the Veteran and his girlfriend stated he has fallen several times due to the right foot locking up, and he had constant right foot pain. In February 2013, the Veteran reported right foot pain described as 7/10 in severity. He said he could walk with minimal limping, but his foot continued to lock up two to three times a week without any apparent trigger. In October 2013, an MRI noted degenerative changes in the right foot. Subsequent VA treatment records include intermittent notations of right foot pain. There is nothing of record suggesting, nor does the Veteran allege, that he has had to use assistive devices to ambulate, that he has since had to amputate his right foot, or that he has had diminished functionality equivalent to amputation. The Board notes that it has reviewed all of the evidence in the record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran's status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity has been rated under Code 5284. Although he is currently receiving the maximum 30 percent rating available under that Code, a note to Code 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. The words slight, moderate, moderately severe, and severe as used in the various 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 to be considered by the Board, is not dispositive of an issue. At the outset, the Board notes that the Veteran is already receiving the maximum rating warranted under Code 5284 for other foot injuries. In addition, his service connected disability only affects one foot, and several of the higher ratings available under the applicable criteria require a bilateral foot disability. Therefore, the avenues by which entitlement to a higher rating may be shown under the schedular criteria are limited. Specifically, the Veteran must show either loss of use of his right foot, amputation of the right forefoot, or functional loss equivalent to amputation. 38 C.F.R. § 4.71a, Codes 5166-67, 5284. At no point during either period on appeal does the evidence suggest, nor does the Veteran allege, that his status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity has required amputation of the right foot or forefoot. The Board acknowledges that the Veteran does suffer from some functional loss due to pain, stiffness, locking up of the right foot, swelling, and other symptoms noted throughout the record. However, it is not so severe as to be equivalent to amputation or cause loss of use of the right foot. The January 2012 VA examiner found no diminution of functionality so serious that amputation would equally serve the Veteran. Similarly, medical records after his September 2012 surgery show that the Veteran can ambulate and perform range of motion exercises with the right foot, albeit with some restriction. Nothing suggests that he now requires assistive devices to ambulate. Moreover, though he undoubtedly has some functional limitation, there is also nothing suggesting, nor does he allege, diminished functional capacity equivalent to amputation of the right foot since his September 2012 surgery. Therefore, there is no basis for granting a higher rating under the applicable rating criteria for either period on appeal. Id. The Board has also considered other applicable codes to determine whether a separate rating for the right foot may be warranted for other pathology such as weak foot, metatarsalgia, hallux valgus, malunion or nonunion of the tarsal or metatarsal bones, hammer toes, or hallux rigidus. However, the Board notes that the Veteran's service connected status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity does not encompass the symptomatology contemplated by the other applicable Codes for foot disabilities. Thus, such symptoms are not service connected, and may not be separately compensated. Furthermore, the Board is particularly mindful of the regulatory directive to avoid compensating one disability under multiple rating codes where the evidence does not indicate separate or distinct manifestations. 38 C.F.R. § 4.14. Here, the Veteran's current rating under Code 5284, for "other foot disabilities," appears to encompass the entire disability picture, and nothing of record suggests, nor does the Veteran allege, any distinct manifestations that warrant separate ratings. Notably, his primary contentions are focused on limitation of motion and functional impairment (i.e., falling due to his right foot locking up). Even assuming, arguendo, that other rating criteria may be appropriately applied to the Veteran's appeal, the evidence does not show that he has pathology warranting a separate, compensable rating under such criteria. Medical records contain no evidence of weak foot, metatarsalgia, hallux valgus, or malunion or nonunion of the tarsal or metatarsal bones. Moreover, although he has right foot hammer toes, a compensable rating is only warranted for unilateral hammer toes affecting all toes, without claw foot. Here, the January 2012 examination report notes hammer toes only of the second to fourth right toes, specifically caused by claw foot. Similarly, though the evidence shows hallux rigidus on the right great toe, a compensable rating is only warranted for severe hallux rigidus; the only medical evidence bearing on severity indicates the Veteran's hallux rigidus produces mild to moderate symptoms. Id. at Codes 5277, 5279-83. Therefore, notwithstanding the propriety of applying other criteria, a separate, compensable rating for the Veteran's status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity would nonetheless not be warranted at any time. Finally, the Board has considered whether a separate rating is warranted for the Veteran's neurological complaints. Throughout the record are several notations of shooting pains traveling up his right leg. However, neurological testing on June 2009 and January 2012 VA examination indicated sensation was intact, and no neuropathic or radicular symptoms were noted by either examiner. There is no other medical evidence of record showing neurological evaluation. Thus, the evidence does not show that the Veteran additionally suffers from neurological impairment associated with his status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity, and he is not competent to self-diagnose such conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Consequently, a separate rating for such impairment is also not warranted at any time. Extraschedular Considerations The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis for the above disabilities. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, 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 claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's 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 Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Veteran's status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity manifests in limited motion, cavus deformity, functional loss due to pain, stiffness, locking up, and other similar symptoms. Notably, the Veteran does not allege any other symptoms or results which paint an exceptional or unusual disability picture. Therefore, the Board finds that the associated symptomatology and degree of disabilities shown are entirely contemplated by Code 5284 for severe foot disability. Consequently, referral for extraschedular consideration is not warranted. In addition, the Board acknowledges that under Rice v. Shinseki, 22 Vet. App. 447, 455 (2009), a claim of entitlement to a total disability rating based on individual unemployability (TDIU) may be part and parcel of an increased rating claim if the record reasonably raises that matter. Here, however, the Veteran separately filed a claim for a TDIU rating that was granted from August 5, 2010. Therefore, the matter of TDIU is moot from that date. Furthermore, prior to August 5, 2010, there is nothing of record suggesting the Veteran's status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity has rendered him unable to obtain or pursue substantially gainful employment. On June 2009 VA examination, the Veteran reported working at a landscaping company, and several psychiatric evaluations prior to August 2010 note work as a significant environmental stressor. Notably, at no point during the relevant period did the Veteran suggest that his status post-operative right foot with history of Steindler plantar fascial release and extensor tendon recession due to sensor motor neuropathy with cavovarus deformity rendered him unemployable. Therefore, the matter of TDIU is not implicitly raised by the record. Id. As the preponderance of the evidence is against the Veteran's appeal, the benefit of the doubt rule does not apply, and the appeal must be denied. Gilbert, 1 Vet. App. at 55 (1991). ORDER A higher rating is not warranted at any point during either period on appeal. The appeal is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs