Citation Nr: 1523307 Decision Date: 06/02/15 Archive Date: 06/16/15 DOCKET NO. 07-28 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for a bilateral foot disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2004 to January 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction over the claim was later transferred to the RO in Buffalo, New York. When this case was last before the Board in June 2014, it was remanded for further development. The case has since been returned to the Board for further appellate action. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System In the June 2014 remand, the Board noted that the issue of entitlement to a temporary total evaluation for service-connected Morton's neuroma was raised by the record and referred the issue to the agency of original jurisdiction (AOJ). To date, the claim has not been developed or adjudicated by the AOJ. Therefore, the claim is again REFERRED to the AOJ for appropriate action. FINDING OF FACT The Veteran's bilateral foot disability is manifested by pain and decreased sensation with no marked pronation, deformity, weakness, clawfoot, medial deviation of the Achilles tendons, or malunion of the tarsal or metatarsal bones. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for a bilateral foot disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Code 5279 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), provide that 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 such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, 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. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice, including notice pertaining to the disability-rating and effective-date elements of the claim, in a letter sent in December 2005, prior to the initial adjudication of the claim. The record also reflects that the Veteran's service treatment records (STRs), available private treatment records, and post-service VA medical records have been obtained. Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Pursuant to the Board's June 2014 remand directive, the Veteran was scheduled for a VA examination in September 2014; however, the Veteran failed to appear. The November 2014 supplemental statement of the case (SSOC) notes the Veteran's failure to attend the examination, the consequences of failing to report for a scheduled VA examination, and that her claim could be denied if she did not comply with efforts to obtain an examination. See 38 C.F.R. § 3.655. Moreover, the Board notes that no mail to the Veteran was returned as undeliverable, the Appeals Management Center (AMC) attempted to contact the Veteran four times via telephone and the Veteran has not denied receiving adequate notice of the scheduled VA examination. Neither the Veteran nor her representative has provided any reason for the Veteran's failure to report for the examination and although her representative requested the examination be rescheduled in an April 2015 informal hearing presentation, there is no indication that the Veteran is willing to report for an examination if it were to be rescheduled. The Court has held that, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board will decide the claim without the benefit of the VA examination ordered in the Board's remand. See 38 C.F.R. § 3.655(b). Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2014). The Veteran's bilateral foot disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5279. A 10 percent evaluation is assigned for unilateral or bilateral anterior metatarsalgia (Morton's disease). 38 C.F.R. § 4.71a, Diagnostic Code 5279. No higher rating is available. Acquired claw foot with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads, bilateral or unilateral, is rated 10 percent disabling. Acquired claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads, is rated 20 percent disabling for unilateral involvement, and 30 percent disabling for bilateral involvement. Acquired claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity, is rated 30 percent disabling for unilateral involvement, and 50 percent disabling for bilateral involvement. 38 C.F.R. § 4.71a, Diagnostic Code 5278. A 10 percent evaluation is authorized for severe hallux valgus, if equivalent to amputation of great toe, or if operated with resection of metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. A noncompensable evaluation is warranted for hammertoe of single toes. A 10 percent rating is assigned when there is hammertoe of all toes of the foot without claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282. A 10 percent evaluation is assigned for moderate foot injury, a 20 percent evaluation is warranted for moderately severe foot injury, and a 30 percent evaluation is warranted for a severe foot injury. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2014). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). If two disability evaluations are potentially applicable, 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2014) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. The Veteran was granted service connection with a noncompensable evaluation for bilateral plantar fasciitis, effective January 2006. The evaluation was increased to 10 percent in a July 2011 rating. In a February 2014 rating decision, the Veteran's bilateral plantar fasciitis was recharacterized as bilateral Morton's neuroma on the basis of being misdiagnosed and assigned a 10 percent evaluation. This did not satisfy the Veteran's appeal. For the reasons explained below, the Board has determined that an evaluation in excess of 10 percent is not warranted for the Veteran's bilateral Morton's neuroma for any portion of the period of the claim. A January 2006 VA examination report notes the Veteran was being medically separated from service due to bilateral plantar fasciitis with continued bilateral foot pain. She reported no injuries of her feet. The examiner found normal gait, normal mid-, fore-, and hindfoot architecture, tenderness to palpation of the precalcaneal areas, and normal Achilles alignment. The Veteran was able to walk on her heels and toes without difficulty with no discomfort on manipulation, abnormal weightbearing, swelling, or pes planus. Private treatment records dated in February 2006 note the Veteran reported bilateral foot pain when standing or walking and was given a diagnostic impression of bilateral plantar fasciitis and bilateral pes cavus. A March 2006 service treatment record (STR) indicates the Veteran had symptomatic bilateral plantar fasciitis with normal gait and stance. In connection with January 2008 VA treatment, the Veteran reported a history of right foot pain with burning, numbness, and tingling radiating into the toes. A November 2008 VA treatment note indicates the Veteran was treated with steroid injections for pain between the second and third toes of the right foot with numbing and tenderness. In connection with October 2010 VA treatment, the Veteran reported pain and tingling in the right second and third toes that have progressed ever since and was assessed with right second neuroma. VA treatment records indicate the Veteran underwent neurectomy of the second and third web spaces in April 20ll because pain and numbness in the toes of her right foot. In connection with May 2011 to June 2011 VA treatment, the Veteran reported that the lateral aspect of the toes, entire third toe, and ball of the right foot were numb but that pain and balance had improved since the surgery for the right foot neuromas. In an August 2011 VA examination, the Veteran reported foot pain diagnosed as plantar fasciitis that was not alleviated by orthotics with a surgical history of two resections of Morton neuromas in her right foot between the second and fourth metatarsophalangeal joints. She reported continued decreased sensation, pain, and pinprick to the mid-metatarsal arch region of her right foot and that she was told she had a probable left foot Morton's neuroma between the third and fourth metatarsophalangeal joints but that she was not having much pain in the left foot. The examiner noted that the right foot surgical scars were healed with no tenderness, deformity, or interference with function or range of motion, and the Veteran reported no pain or instability of the midfoot, forefoot, or Achilles tendon, with normal gait and no evidence of abnormal weightbearing. The examiner diagnosed two Morton's neuromas of the right foot, one Morton's neuroma of the left foot, and found no evidence of plantar fasciitis with preserved long arches and midline Achilles tendon bilaterally, and no pain on manipulation of the forefoot and midfoot. The examiner opined that it was more likely than not that the Veteran's foot pain and treatment in active service was for Morton's neuromas and there was no evidence that she has or had plantar fasciitis, with no intervening illness or trauma of the feet after discharge. In connection with November 2011 VA treatment, the Veteran reported intermittent right foot pain two to three times per day. After careful review of the evidence, the Board finds that the criteria for an evaluation greater than 10 percent for a bilateral foot disability are not met. Throughout the period on appeal, the Veteran's Morton's neuromas were manifested by pain and numbness. The August 2011 VA examination noted the Veteran had normal gait, no instability, no abnormal weightbearing, no plantar fasciitis, no foot injuries, preserved arches, and midline Achilles tendons. The evidence fails to demonstrate the presence of bilateral flatfoot, weak foot, acquired claw foot, severe hallux valgus, hammertoes, hallux rigidus, malunion of tarsal bones, or a foot injury that would warrant a higher rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5284. Under the schedular criteria, bilateral metatarsalgia warrants, at most, a 10 percent evaluation. As the objective medical evidence shows that the Veteran does not have any other bilateral foot disability that warrants a higher rating, the Board must conclude that the disability is properly evaluated as 10 percent disabling. The Board has considered whether there is any other schedular basis for granting this claim but has found none. In addition, the Board has considered granting a staged rating but for the reasons explained above has determined that a rating in excess of 10 percent is not warranted for any portion of the rating period. Additional Considerations The Board has considered whether this matter should be referred to the Director of the Compensation Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each 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 evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the service-connected disability, as discussed above, are contemplated by the schedular criteria. In addition, higher ratings are authorized for additional impairment. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. The Board further notes that while the Veteran's bilateral foot disability is productive of some industrial impairment, specifically difficulty standing or walking for prolonged periods, there is no contention on the Veteran's part or evidence suggesting that the disability is sufficient by itself to render the Veteran unemployable. Therefore, the Board has determined that the issue of entitlement to a total rating based on unemployability due to the bilateral foot disability has not been raised in this case. Finally, the Board has considered the doctrine of reasonable doubt but determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to an evaluation in excess of 10 percent for a bilateral foot disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs