Citation Nr: 1751067 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 11-21 014A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating in excess of 10 percent for right foot disability, to include degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served in the Coast Guard from September 1961 to September 1965, from September 1968 to September 1971, and from July 1973 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 2016, the Board remanded this matter for additional development. FINDING OF FACT The Veteran's right foot disability is manifested by symptoms, primarily pain, that are no more than moderate in severity. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a right foot disability have not been met. 38 U.S.C.S. §§ 1155, 5103, 5103A, 5107 (LexisNexis 2017); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.20, 4.27, 4.40-4.46, 4.59, 4.71a, Diagnostic Codes 5099-5284 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that a higher rating is warranted for his right foot disability due primarily to pain. Following a review of the record, the Board disagrees. The Veteran's right foot disability is rated under Diagnostic Code 5284 pertaining to other disabilities of the foot, with a 10 percent rating assigned for disability that is moderate in nature. Under Diagnostic Code 5284, a higher 20 percent rating is warranted for a moderately severe disability of the foot, and a 30 percent rating for a severe disability of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Here, a higher rating is not warranted because the evidence does not show a right foot disability that is more than moderate in nature. The Veteran has been afforded three VA examinations to address his right foot symptoms. During those examinations, which occurred in June 2010, February 2015, and July 2016, he reported primarily foot pain of varying intensity, and physical examinations revealed callosities, painful motion, and/or tenderness. The VA examiners also documented some functional loss, and the Veteran reported increased pain with walking more than one-half of a mile and standing over two hours. In February 2015 and July 2016, the Veteran also reported flare-ups during which he usually sits down and puts his feet up to take pressure off. Notably, VA examiners in February 2015 and July 2016 expressly determined the Veteran's overall right foot disability to be moderate in severity, even considering the Veteran's functional complaints and functional impairment found on examination. The earlier June 2010 VA examiner found minimal effects on the Veteran's activities of daily living. Also probative are ongoing VA treatment notes that show while the Veteran sought treatment for foot pain, he generally indicated relief, or reported symptoms that are indicative of no more than moderate foot disability. For example, in October 2011, the Veteran reported worsening foot pain but described it as dull and occurring once every week or every two weeks, usually lasting one or two days. At that time, a foot x-ray showed no abnormality at the site of the Veteran's pain. In November 2013, the Veteran sought podiatry treatment, reporting no pain at rest but pain when he ambulates or exercises, and problems with how his shoes fit. Notably, on physical examination of the feet, the podiatrist noted the right foot to pronate slightly, but good bone structure. In reviewing imaging, the podiatrist could not tell if the Veteran's toes were ever fractured. There was also good range of motion and muscle strength, and the Veteran's neurovascular status was fine. The podiatrist opined that the Veteran had some midtarsal joint pain and capsulitis and provided the Veteran new shoes, after which he "was immediately better and it was evident to him what was going on with his foot." In December 2013, while he reported issues with his new shoes and right toe feeling like it was getting pushed onto the second toe, he "did admit that his feet don't ache anymore when he walks." More recently, in January 2016, during an annual follow-up, the Veteran denied musculoskeletal joint pain on review of systems, and physical examination was negative for focal tenderness, generally. The Board also observes that on general pain assessments in July 2011, April 2012, and January 2016, the Veteran reported a "0" on a scale of 0 to 10, indicating no pain. The Board recognizes the Veteran's reports during a July 2016 VA examination that he uses a cane due to his right foot disability. He also reported during a May 2016 VA nutrition appointment that he walks with a cane due to foot pain. However, those more recent assertions are contradicted by other evidence, and the Board finds more probative earlier notations that suggest that the Veteran's cane use is for disability other than his right foot. In this regard, in March 2010, the Veteran reported that he was now using a cane because in the last six months, he had fallen twice because his legs just gave out on him. In April 2012, it was noted the Veteran used a cane due to an unstable gait, without any mention or discussion of right foot symptoms or pain. In fact, pain assessment at that time was zero. Then, during a November 2013 VA podiatry visit, at which time the Veteran reported use of a walking stick and sometimes a cane, the podiatrist noted that it "does not have to do with his foot. It is more of a back problem." Similarly, the February 2015 VA examiner found that the Veteran uses a walking stick or cane for a back problem and not for his claimed foot problem. Thus, it appears that the Veteran's use of assistive device is not primarily due to his right foot disability, if at all. The Board also recognizes the Veteran's additional reports of his right foot going "dead" at times, as well as his various reports of flare-ups and functional limitation in standing and walking due to his right foot disability. However, the Board notes that during July 2009 VA treatment, the Veteran reported walking 2-3 miles per day and mowing the lawn with a push mower for over one hours. He similarly reported an ability to walk a few miles during a June 2010 VA examination and October 2010 VA treatment. Moreover, even considering his more recent complaints, he has reported that he is still independent in his activities of daily living and, as discussed, VA examiners have found only moderate disability. The Board also notes that the February 2015 VA examiner found that the Veteran's complaints of pain on physical examination that were on the dorsal part of his right foot at the 2nd, 3rd, and 4th metatarsals, would not significantly affect his level of functioning. And, more recently, as discussed by a VA examiner in an October 2016 addendum, during recent September 2016 VA podiatry treatment, the Veteran reported that he was doing rather well and had no pain in his feet. To the extent that the September 2016 VA podiatry treatment note discussed by the October 2016 VA examiner is not of record, the Board finds that remand to obtain it is not necessary, as the note suggests improvement in the Veteran's condition and, therefore, would not support entitlement to a higher rating. Moreover, the treatment note was considered and discussed by the October 2016 VA examiner in an addendum indicating that the symptoms and impairment found during the July 2016 VA examination were all part of the Veteran's right foot disability. There is nothing to suggest that the October 2016 examiner's recording of the September 2016 treatment note is inaccurate, and a VA examiner is presumed to have properly discharged his or her duties as a health professional (presumption of regularity) in a review of the record, in interviewing the Veteran, and supporting his or her opinion with medical analysis applied to the significant facts of the case. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties). Under the presumption of regularity, it is presumed that government officials properly discharge their duties in good faith and in accordance with the law and governing regulations. Kyhn v. Shinseki, 24 Vet. App. 228, 232 (2011). In sum, the Board finds the June 2010 VA examiner's finding of mild impairment, and the February 2015 and July 2016 VA examiners' express findings of moderate disability, which were made following review of VA treatment records and physical examination of the Veteran, to be the most probative evidence of record. Those findings are entirely consistent with the ongoing VA treatment notes, which show that the Veteran frequently denied pain or reported relief of foot pain with treatment, and was found to have good muscle strength and range of motion during podiatry treatment. As the most probative evidence of record supports no more than moderate disability, a rating in excess of the currently-assigned 10 percent rating for moderate foot disability under Diagnostic Code 5284 is not warranted. 38 C.F.R. § 4.71a. The Board finds that no other diagnostic code is applicable here. While a June 2010 VA examiner appears to have diagnosed pes planus of the right foot, subsequent VA examiners in February 2015, July 2016, and October 2016 found that the Veteran does not have pes planus. Ongoing VA treatment notes, including VA podiatry notes, also fail to show a diagnosis of pes planus. Regardless, even if the Board were to apply Diagnostic Code 5276 for pes planus, a higher rating would still not be warranted in this instance, as the June 2010 VA examiner noted only mild pes planus, which is consistent with a noncompensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5276. In any event, the Board finds that no other diagnostic code is more applicable here. Butts v. Brown, 5 Vet. App. 532 (1993). As a final matter, the Board acknowledges that the Court recently held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible and applicable, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). Although the examinations of record do not incorporate some of that testing, the Board finds that remand is not required here for a new examination for a number of reasons. Primarily, the Board finds a new examination pursuant to Correia is not required because the relevant diagnostic codes here do not invoke range of motion measurements. But also, the Board finds that Veteran's statements made in furtherance of treatment of his feet tend to suggest that his statements offered during VA examinations may be somewhat exaggerated, and the Veteran's most recent statement support that he is doing well and to be without pain. In any event, the Board finds that the cumulative VA examinations of record concerning the Veteran's right foot disability, which address the Veteran's contentions and functional impairment, are adequate. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In finding that a higher rating is not warranted for the Veteran's right foot disability, the Board has considered the applicability of the benefit of the doubt doctrine. But, because the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.S. § 5107(b). ORDER A disability rating in excess of 10 percent for a right foot disability is denied. ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs