Citation Nr: 1751832 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 12-20 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability rating in excess of 30 percent for service-connected bilateral foot disability, to include bilateral pes planus with hammer toes, metatarsalgia, pes cavus and bunions. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from August 1971 to June 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (hereinafter, Agency of Original Jurisdiction (AOJ)). The AOJ granted service connection for bilateral pes planus and assigned an initial noncompensable rating, effective August 26, 2010. The June 2016 rating decision increased the bilateral foot disability rating to 30 percent, effective April 13, 2016, and subsequently in August 2017, the Veteran was granted a 30 percent rating for the entire appeal period. As the Veteran was not granted the entire benefit sought, the remaining is before the Board. The Veteran presented testimony before the undersigned Veterans Law Judge (VLJ) at a January 2017 hearing. A transcript of that hearing is of record. The case was previously before the Board in April 2017 when it was remanded for additional development. That development has been completed, and thus the case may now be reviewed on the merits. The Board notes that a May 2017 VA examination identified hammer toes, metatarsalgia, pes cavus and callous/bunions as complications of service-connected bilateral pes planus. The issue on the title page has been rephrased accordingly. The appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. FINDING OF FACT The Veteran's bilateral foot disability is not characterized by severe spasm of the tendo achillis on manipulation nor dropped forefoot at any time throughout the appeal period, nor marked contraction of fascia with all toes hammertoes; he does manifest metatarsalgia as a complication of his bilateral foot disability. CONCLUSION OF LAW The criteria for a rating greater than 30 percent rating for bilateral foot disability under Diagnostic Code 5276 is denied, but the criteria for a separate 10 percent rating for metatarsalgia under Diagnostic Code 5279 have been met. 38 U.S.C.A. § 1155 (West 2014); C.F.R. § 4.71a, Diagnostic Code 5276-5280 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In this regard, the Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). The Board does make note of the inadequacies of previous VA examinations. However, the Board cured these inadequacies with additional examination. There has also been no argument raised as the adequacy of the most recent VA examination. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Increased Rating The Veteran seeks a disability rating higher than 30 percent for his service-connected bilateral foot disability, effective August 26, 2010. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id.; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49(1990). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Under the applicable rating schedule for pes planus, a 50 percent rating is warranted for pronounced bilateral pes planus if there is evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The record notes that the Veteran also has a diagnosis of pes cavus (claw foot). As such, the Board will consider rating the Veteran's disability under the criteria for diagnostic code 5278, as it is the only other foot disability which would allow the Veteran a disability rating higher than 30 percent. In this regard, a 50 percent rating is warranted when there is marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity, bilaterally. The Veteran was further diagnosed with metatarsalgia, hallux valgus and bunions/callouses. Metatarsalgia, whether unilateral or bilateral, warrants a maximum 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5279. A single hammer toe is rated noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5282. A maximum 10 percent rating is warranted for all toes hammer toes, unilateral, without claw foot. Id. The criteria of Diagnostic Code 5276 contemplate callous formation in the schedular criteria. The claims file includes a November 2010 VA examination where the Veteran reported bilateral foot pain, stiffness and a lack of endurance to the soles of the feet. The Veteran endorsed the ability to stand for one hour and walk up to three miles. There was no evidence of painful motion, swelling, instability, weakness or abnormal weight-bearing. However, there was tenderness to the arch of the foot with firm palpitation and mild pronation on the left and moderate pronation on the right. The arches were present on non-weight bearing, but not present on weight-bearing. Location of weight-bearing was medial to great toe. Mild hammer toe deformity was present. There was no muscle atrophy. An x-ray examination demonstrated hallux valgus with minimal soft tissue swelling medial to the first MTP joint on either side, likely bunion. The radiologist described mild pes planus. The Veteran's pes planus had mild effect on chores, shopping and driving, and moderate effects on exercise and sports. The examiner determined the Veteran suffered from mild pes planus bilaterally. The April 2016 VA examiner affirmed the diagnosed pes planus, bilaterally, noting that the Veteran no longer used arch supports in his shoes, and he was now retired from the police force. Present symptoms were intermittent numbness in the right fifth toe, mild pain with prolonged walking, a lack of endurance and disturbance of locomotion, without extreme tenderness of plantar surfaces, decreased longitudinal arch height with weight bearing, metatarsalgia, or hallux valgus. The Veteran was positive for hammer toes on the 2nd, 3rd, 4th and 5th digits. The examiner failed to address whether or not the Veteran had characteristic calluses or what effect, if any, the use of arch supports have on the Veteran's bilateral foot disability. The December 2016 VA treatment records note that the Veteran complained of generalized ball of foot and arch pain, bilaterally, despite achieving relief from some shoes, and amplified pain with increased activity. The Veteran reported that he was told he had flat feet. The same treatment records reflect that on range of motion testing the Veteran's bilateral feet were within normal limits, without pain or crepitus. However, the examiner noted the presence of metatarsalgia and cavus foot with met adductus. At the Veteran's January 2017 hearing, he testified to being previously diagnosed with hallux valgus, and to the experiencing calluses in the past six months, caused by the pressure he puts on the sides of his feet. At the May 2017 VA examination, the Veteran complained of pain in the soles of his feet and underneath his toes, with numbness when he walks for a long period of time. To remedy some of the pain, the Veteran reported wearing bilateral shoe inserts for six months, which had been successful in relieving foot pain. On physical examination, the examiner noted that the Veteran exhibited metatarsalgia, hammer toes, hallux valgus, acquired pes cavus, and degenerative arthritis, bilaterally. In evaluating the Veteran's pes cavus, the examiner noted definite tenderness under the metatarsal heads, and hammer toes on all toes without any effect on the Veteran's plantar fascia, dorsiflexion, varus deformity, or restrictions on his range of motion. An addendum medical opinion was sought in August 2017, where the examiner clarified that corns and calluses, aching legs, bunions, and metatarsalgia are all complications of flat foot. Moreover, the examiner added that ill-fitting shoes can lead to hallux valgus, bilaterally as well as pes planus foot structure causing metatarsal pain, thereby encompassing the major manifestations of the Veteran's current disability. In light of the Rating Schedule, and the aforementioned summary of the manifestations of the Veteran's foot disability, the Board finds that the evidence does not meet, or more nearly approximate, the criteria for a higher 50 percent rating under either Diagnostic Codes 5276 (pes planus) or 5278 (pes cavus). The Veteran exhibited tenderness of the plantar surfaces of the foot in November 2010 when the Veteran's arch was tender with firm palpitation, and in May 2017 when the foot tenderness was due to pes cavus. His other symptoms include pain on use, pain on weightbearing, slight pronation on the left, and moderate pronation on the right. The extent of his weight-bearing has been medically described as medial to great toe, which is consistent with a 10 percent rating. He has callosities/bunions which is consistent with a 30 percent rating. However, there is no lay or medical description of marked pronation, or marked inward displacement and severe spasm of the tendo Achilles on manipulation. The Veteran had some success using bilateral arch supports and shoe inserts to improve the disabling nature of his condition per his April 2016 and May 2017 VA examinations. As such, the criteria for a 50 percent rating under Diagnostic Code 5276 have not been met. 38 C.F.R. § 4.71a, Diagnostic Code 5276. With regards to the Veteran's disability under the pes cavus criteria, on examination, the Veteran's pes cavus was deemed to have no effect on his plantar fascia, in spite of the presence of hammer toes which is not present on the great toes. The Veteran exhibited minimal callosities, under the fifth toe, bilaterally with mild tenderness and bunion formation of the great toes, which as the August 2017 examiner noted is a common complication of flat feet. Despite this, at no point throughout the appeal period was the Veteran's foot disability characterized by a varus deformity or a dropped forefoot which is required for the next higher rating. Accordingly, a higher rating under Diagnostic Code 5278 is not warranted. Notably, the criteria for Diagnostic Codes 5276 and 5278 share similar symptom characteristics, and separate ratings under each diagnostic code would violate the rule of against pyramiding under 38 C.F.R. § 4.19. The 2016 and 2017 VA examiners also diagnosed metatarsalgia. Such symptomatology is not specifically contemplated in the criteria of Diagnostic Codes 5276 and 5278. Thus, resolving interpretative doubt in the Veteran's favor, the Board finds entitlement to the maximum 10 percent rating for metatarsalgia in both feet for the entire appeal period. 38 C.F.R. § 4.71a, 5279. The Veteran manifests hammer toes of the 2nd, 3rd, 4th and 5th digits, but not the great toes. There is no history of hallux valgus requiring resection of metatarsal head or severity to be the equivalent of amputation of great toe. As such, the Veteran does not meet the criteria for a separate 10 percent rating under Diagnostic Codes 5280 or 5282. Finally, the Veteran has abnormal skin formation due to his service-connected bilateral foot disability. The criteria of Diagnostic Code 5276 specifically contemplate pes planus resulting in characteristic callosities. As such, the Board finds that a separate rating for this aspect of disability would violate the rule of against pyramiding under 38 C.F.R. § 4.19. Upon consideration of the evidence of record, the Board finds that the Veteran's disability picture does not more nearly approximate pronounced impairment, even when considering the reported functional impairment due to pain on use or other factors. However, a separate 10 percent rating is warranted for metatarsalgia. Thus, no more than a 30 percent rating is warranted under Diagnostic Code 5276, but a separate 10 percent rating is warranted under Diagnostic Code 5279. In so finding, the Board finds the Veteran's descriptions of pain, pain on use and walking limitations to be credible and competent evidence supportive of the claim, which has been relied upon in the assignment of a 30 percent rating for pes planus although all schedular criteria are not met. The Board has also assigned a separate 10 percent rating for metatarsalgia. Overall, the Board places greater probative weight on the clinical findings of the clinicians who have greater training and expertise in performing podiatric examinations and reporting the nature and severity of those types of disabilities. 38 C.F.R. § 3.159(a); see also Layno. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). ORDER A rating in excess of 30 percent for service-connected bilateral foot disability under Diagnostic Code 5276 is denied, but a separate 10 percent rating for metatarsalgia under Diagnostic Code 5279 is granted for the entire appeal period. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs