Citation Nr: 1751820 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 11-21 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for service-connected right foot pes cavus with plantar fasciitis and mild equinus of the forefoot (right foot disability). 2. Entitlement to an evaluation in excess of 30 percent for service-connected left foot pes cavus with plantar fasciitis and mild equinus of the forefoot (left foot disability). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Marine Corps from October 1972 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted, in pertinent part, an increased rating of 30 percent for both the Veteran's right foot disability and left foot disability. Although the RO originally assigned an effective date of March 25, 2006, in a subsequent April 2012 rating decision, the RO found Clear and Unmistakable Error (CUE) in the effective date assigned, and assigned a new effective date of May 25, 2006, the date of the Veteran's original increased rating claim. In May 2010, the Veteran filed a Notice of Disagreement (NOD) in conjunction with the September 2009 rating decision. In a July 2011 Statement of the Case (SOC), the RO continued the 30 percent evaluation for both the right foot disability and left foot disability. The Veteran timely filed an appeal in August 2011. The Board notes that in his appeal, the Veteran requested a hearing. Accordingly, the Veteran was scheduled for a Board hearing in August 2016. In July 2016, the Veteran withdrew his request for a hearing. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claim currently on appeal. In January 2017, the Board remanded the Veteran's claim for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denial in an April 2017 Supplemental Statement of the Case (SSOC). The matter has been returned to the Board for further appellate proceedings. In the January 2017 Remand, the claim of entitlement to service connection for hypertension was granted; thus, it is no longer on appeal. The Board further notes that prior to his current representation, the Veteran was represented by Attorney Barbara J. Cook. VA received a signed VA Form 21-22 in April 2010, changing representation from Ms. Cook to Disabled American Veterans (DAV). The Board has jurisdiction over the Veteran's implied claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009), which found that where a claimant, or the record, raises the question of unemployability due to a disability for which an increased initial rating is sought, part of the claim for increased compensation is an implied claim for TDIU. As the Veteran has sought the highest rating possible, and has claimed that the disability on appeal is, in part, responsible for his unemployability, the issue of entitlement to TDIU is properly before the Board. FINDINGS OF FACT 1. The Veteran's right foot disability is not shown to be productive of functional impairment to the extent that there is actual loss of use of the foot at any point during the appeal period; nor does it manifest marked pronation, tenderness of plantar surfaces of the feet, and inward displacement of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances, or marked varus deformity. 2. The Veteran's left foot disability is not shown to be productive of functional impairment to the extent that there is actual loss of use of the foot at any point during the appeal period; nor does it manifest marked pronation, tenderness of plantar surfaces of the feet, and inward displacement of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances, or marked varus deformity. 3. The Veteran does not meet the preliminary schedular requirements for a TDIU, nor is he otherwise unable to obtain or maintain substantially gainful employment as a result of a service-connected disability or disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for the Veteran's right foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1 -4.16, 4.20, 4.27, 4.40-4.71, 4.71a, Diagnostic Code 5299-5284 (2016). 2. The criteria for a rating in excess of 30 percent for the Veteran's left foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1 -4.16, 4.20, 4.27, 4.40-4.71, 4.71a, Diagnostic Code 5299-5284 (2016). 3. The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties VA has completed the necessary steps in order to meet its duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA sent VCAA letters to the Veteran, he was afforded multiple VA examinations, and his in-service and post-service medical records were obtained. The examinations and opinions, taken together, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any additional outstanding evidence which could be obtained to substantiate his claim, and the Board is unaware of any such evidence. Therefore, the Board finds that the duties to notify and assist have been met. Lastly, the record reflects substantial compliance with the Board's January 2017 Remand. See Stegall, 11 Vet. App. 268, 271 (1998). The January 2017 Remand required VA, in relevant part, to obtain an additional examination and medical opinion regarding the Veteran's bilateral foot condition. These directives were adequately followed; thus, the Board finds substantial compliance has been shown. II. Increased Schedular Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2016) 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 disabilities at issue. 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 the disabilities. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case with the Veteran's back disability, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2016); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2016). Section 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). VA must consider all favorable lay evidence of record. 38 USCA § 5107 (b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Veteran's right foot disability and left foot disability are each currently rated at 30 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5284. The hyphenated rating shows that the disability is rated analogous to Diagnostic Code 5284 for foot injuries, other. See 38 C.F.R. §§ 4.20, 4.27 (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). The Veteran's disabilities are to his skeletal system and anatomically relate to his right and left foot; thus, Diagnostic Codes 5276 to 5284 warrant consideration as they pertain to musculoskeletal disabilities of the foot. As will be discussed, the evidence of record shows that the Veteran's service-connected bilateral foot disability is manifested by flat foot and claw foot. Therefore, the criteria for rating these disabilities under 38 C.F.R. § 4.71a, Diagnostic Codes 5276 and 5278 will be discussed. However, as the Veteran's service-connected bilateral foot disability is not manifested by weak foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of tarsal or metatarsal bones, the criteria for rating such disabilities under 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5279, 5280, 5281, 5282, and 5283, respectively, do not apply and will not be discussed. Thus, the Board will discuss, in turn, Diagnostic Codes 5284, 5276, and 5278. Pursuant to Diagnostic Code 5284, for foot injuries, other, a 10 percent rating is warranted for moderate level disability, a 20 percent rating for a moderately severe level, and a 30 percent rating for a severe foot disability. A 40 percent rating is assigned for the actual loss of use of a foot. 38 C.F.R. § 4.71a. The words "moderate," "moderately severe," and "severe" are not defined in Diagnostic Code 5284. 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. Loss of use of a foot exists when no effective function remains other than that which would be equally well-served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. 38 C.F.R. §§ 3.350 (a)(2)(i), 4.63 (2016). The determination will be made on the basis of the actual remaining function in terms of balance and propulsion which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350 (a)(2)(i), 4.63 (2016). On VA examination in January 2007, the Veteran reported that he was unable to stand for prolonged periods of time due to pain in his feet. He described his pain as a hot ice pick in both ankles, ball of feet, and arches. The examiner noted that there was a history of trauma to the feet, as the Veteran parachuted from airplanes approximately 47 times while in service. On physical examination, the examiner noted that there was no objective evidence of painful motion or swelling to either foot. The examiner further noted that the examination was specifically for claw feet. The examiner concluded that the Veteran did not have fascia in either foot, and noted that the Veteran had an altered gait due to walking on outer soles as a result of lack of fascia. Further, X-rays of both feet revealed no evidence of pes planus. Based on the findings, the examiner diagnosed the Veteran with bilateral pes cavus (claw foot), bilateral forefoot equinus, and bilateral plantar fasciitis. With regard to the diagnoses of bilateral pes cavus and bilateral forefoot equinis, the examiner concluded that both of these conditions were congenital. On VA examination in June 2011, the Veteran's history was reviewed. On physical examination, the examiner noted that the feet were anatomically normal. There was no objective evidence of painful motion, edema, instability, weakness, or tenderness in the feet. There were no callosities, breakdown, or unusual shoe wear pattern that would indicate abnormal weight bearing. There were no hammertoes, clawfoot, or other deformity either actively or passively correctable. There was no flatfoot and no malalignment of the Achilles tendon. There was no valgus deformity at the ankle, and there was no forefoot or midfoot malalignment. Finally, there was no hallux valgus, and angulation and dorsiflexion at the first metatarsal phalangeal joints were normal. However, on VA examination in October 2015, the examiner provided a diagnosis of bilateral pes cavus with plantar fasciitis and mild equinus of the forefoot. The Veteran reported constant bilateral foot pain that was worse with prolonged walking. He further reported the use of custom orthotics with improvement. The examiner noted that the Veteran's bilateral pes cavus had no effect on the toes to either foot; there was marked tenderness under metatarsal heads to both feet, there was no effect on plantar fascia, and finally, there was no dorsiflexion and varus deformity to either foot. The examiner further noted that due to the Veteran's bilateral foot condition, there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. During the most recent VA examination in February 2017, the Veteran's history was again reviewed. The examiner noted a diagnosis of bilateral acquired pes cavus. On examination, the examiner evaluated the Veteran for bilateral flatfoot and noted that the use of orthotics provided bilateral relief. However, the Veteran had extreme tenderness of plantar surfaces on both feet, but the tenderness was not improved by orthopedic shoes or appliances. There was no objective evidence of marked deformity or marked pronation of one or both feet. The Veteran did not have inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation of one or both feet. Turning to the examiner's notes pertaining to acquired pes cavus, there was definite and marked tenderness under metatarsal heads. The examiner further noted that due to the Veteran's bilateral foot condition, there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Having carefully considered the Veteran's claim, in light of the evidence of record and the applicable law, the Board finds that a disability rating higher than 30 percent for a bilateral foot disability is not warranted. Specifically, the medical and lay evidence does not demonstrate that the Veteran's bilateral foot disability is productive of functional impairment to the extent that there is actual loss of use, which, for VA purposes, is defined as having no remaining effective function other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. Stated another way, under Diagnostic Code 5284, the current maximum 30 percent rating is appropriate because the evidence shows that the Veteran has effective function remaining in his right and left foot beyond that which would be equally well served by an amputation with use of a suitable prosthetic device. The Board has considered whether other potentially applicable diagnostic codes allow for a separate compensable and/or increased rating for the Veteran's bilateral foot symptoms. Diagnostic Code 5276 provides ratings for acquired flatfoot. 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 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 tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The criteria under Diagnostic Code 5276 are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive requirement must be met in order for an increased rating to be assigned). Based on the foregoing, the Board finds that the medical records do not demonstrate findings consistent with a higher 50 percent evaluation as required under Diagnostic Code 5276. Without a showing of pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances, a higher rating is not appropriate or warranted here. The Veteran did not demonstrate on examinations symptoms consistent with a 50 percent rating. As such, a rating in excess of 30 percent is not warranted under Diagnostic Code 5276. Diagnostic Code 5278 addresses acquired claw foot (pes cavus). A 30 percent rating is assigned for bilateral pes cavus where there is evidence of all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads in both feet. A 50 percent rating is assigned for bilateral pes cavus where there is evidence of marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity in both feet. 38 C.F.R. § 4.71a, Diagnostic Code 5278. The criteria under Diagnostic Code 5278 are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive requirement must be met in order for an increased rating to be assigned). Based on the evidence of record, a rating in excess of 30 percent is not warranted for the Veteran's bilateral foot disability under Diagnostic Code 5278. Despite the Veteran's painful bilateral foot disability, the Veteran does not qualify for a higher rating under this diagnostic code. As noted by the October 2015 VA examiner, the Veteran's bilateral pes cavus had no effect on the toes to either foot; there was marked tenderness under metatarsal heads to both feet, there was no effect on plantar fascia, and finally, there was no dorsiflexion and varus deformity to either foot. The February 2017 examiner noted that the Veteran exhibited definite and marked tenderness under metatarsal heads, which is an effect that is represented in the 30 percent criteria. Thus, the Board finds that a 50 percent rating under Diagnostic Code 5278 is not warranted. In making the determination that a rating in excess of 30 percent for the Veteran's bilateral foot disability is not warranted under any of the discussed diagnostic codes, the Board has also considered the Veteran's statements with respect to the severity of his bilateral foot disability. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (finding that a Veteran is competent to report on that of which he or she has personal knowledge). While the Veteran is competent to report his symptoms, disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from service-connected disabilities in civilian occupations. Thus, while the Veteran is competent to provide evidence regarding his symptoms, such as pain and tenderness, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. In this case, the findings documented in the VA examination reports and the medical treatment records address the rating criteria under which the Veteran's disability is rated. As a result, the Board finds that these records are more probative than the Veteran's subjective reports of increased symptomatology in determining whether a higher disability rating is warranted. Finally, the Board further observes that the Veteran's statements alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a, with respect to determining the severity of his bilateral foot disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993). Determining the severity of the Veteran's disability must be accomplished by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). For these reasons, the Board finds that at no time during the period on appeal has the bilateral foot disability warranted more than a 30 percent evaluation. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Because the preponderance of the evidence is against the claim, the benefit of the doubt provisions are inapplicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 56. Accordingly, the Veteran's request for an increased rating is denied. II. TDIU The Veteran contends that he is unable to work due to the symptomatology associated with his service-connected disabilities. After a thorough review of the evidence, the Board concludes that an award of TDIU is not warranted. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is presently service connected for a right foot disability (30 percent), left foot disability (30 percent), bilateral idiopathic cavus feet (10 percent), hypertension (10 percent); surgical scar of the right foot (0 percent); and surgical scar of the left foot (0 percent). The Veteran's combined evaluation is presently 60 percent. Thus, since none of the Veteran's disabilities are rated over 40 percent, and the combined rating is not 70 percent or more, the rating fails to meet the criteria for schedular TDIU as per 38 C.F.R. § 4.16(a). In sum, while the record reflects that the Veteran's service-connected disabilities cause difficulties at work, unemployability due to these disabilities, alone, has not been shown. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to TDIU benefits must be denied. ORDER Entitlement to an evaluation in excess of 30 percent for service-connected right foot pes cavus with plantar fasciitis and mild equinus of the forefoot (right foot disability) is denied. Entitlement to an evaluation in excess of 30 percent for service-connected left foot pes cavus with plantar fasciitis and mild equinus of the forefoot (left foot disability) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs