Citation Nr: 1756591 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-18 997A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to February 2, 2016, and in excess of 20 percent thereafter for service-connected pes planus with fascia and hallux valgus with hammer toe of second and fifth digits of the left foot (left foot disability). 2. Entitlement to a rating in excess of 10 percent prior to February 2, 2016, and in excess of 20 percent thereafter for service-connected pes planus with fascia and hallux valgus with hammer toe of second and fifth digits of the right foot (right foot disability). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Air Force from March 1985 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the San Diego, California Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction over the Veteran's claim currently rests with the RO in Baltimore, Maryland. In a July 2016 rating decision, the AOJ increased the Veteran's disability rating to 20 percent effective February 2, 2016 for her service-connected left and right foot disabilities. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board is cognizant that a claim for a total rating based on individual unemployability due to a service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has indicated that that her left and right foot disabilities make it difficult to stand and walk for prolonged periods of time, and that she has occasionally missed work due foot pain. See, e.g., June 2017 VA Examination. However, the Veteran has not argued, and the record does not otherwise reflect, that her service-connected foot disabilities render her unable to secure or follow a substantially gainful occupation. The Board therefore concludes that a claim for entitlement to a TDIU has not been raised as part of the issue on appeal. The Board previously remanded this case for additional development in April 2017. It is now again before the Board for appellate consideration. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected pes planus with fascia and hallux valgus with hammer toe of second and fifth digits of the left foot has been pronounced, with marked pronation, extreme tenderness of the plantar surfaces of the feet, and spasms, not improved by orthopedic shoes or appliances. 2. For the entire period on appeal, the Veteran's service-connected pes planus with fascia and hallux valgus with hammer toe of second and fifth digits of the right foot has been pronounced, with marked pronation, extreme tenderness of the plantar surfaces of the feet, and spasms, not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a 30 percent disability rating, but not higher, for pes planus of the right foot have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71, Diagnostic Code (DC) 5276 (2017). 2. For the entire period on appeal, the criteria for a 30 percent disability rating, but not higher, for pes planus of the left foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71, Diagnostic Code (DC) 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA must comply with its duties to notify and assist. In this case, neither the Veteran nor her representative have raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As noted above, the Veteran's claim was previously remanded by the Board for additional development in April 2017. As a matter of law, the Board has a duty to ensure substantial compliance with the terms of its remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 147 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board instructed the AOJ to specifically consider additional service and post-service treatment records that were associated with the claims file after the August 2012 Supplemental Statement of the Case (SSOC) and readjudicate as needed. The RO conducted the requisite development and issued a new SSOC in October 2017. After considering the prior remand and the development conducted, the Board finds that substantial compliance with the prior remand has been accomplished. Therefore, the Board may proceed forward with adjudicating the Veteran's claim of entitlement to an increased rating for his bilateral foot disability without prejudice to her. II. Legal Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Pyramiding, that is, the evaluation of the same disability or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings should be applied, 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. In this case, the Veteran asserts that she is entitled to a disability rating in excess of 10 percent prior to February 2, 2016, and in excess of 20 percent thereafter for her service-connected right and left foot disabilities. A 10 percent rating is warranted for moderate impairment either unilaterally or bilaterally, with weight-bearing line over or medial to the great toe, inward bowing of the tendo-achillis, pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, DC 5276. A 20 percent rating is warranted for severe disability unilaterally, with symptoms of objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Id. A 30 percent rating is warranted for pronounced disability unilaterally, with symptoms 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. Id. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorzo v Derwinski, 2 Vet. App. 625 (1992). The Veteran was afforded a VA examination to gauge the severity of her left and right foot disabilities in November 2007. She reported that she had undergone an attempt at surgical correction in 2003 that initially relieved some of her discomfort, but her pain had recently worsened significantly. She complained of painful spasms in both feet. Orthotics had been prescribed but she had not yet received them. She reported being unable to stand or walk without pain for more than three hours, and stated that she suffered frequent flare-ups with increased pain and swelling. The Veteran reported missing work on several occasions due to pain severity. On physical examination, the Veteran exhibited normal range of motion but bilateral compensatory pronation and bowing on weight bearing. Also on weight bearing, the Veteran had a depression of both arches with talar bulging. She also exhibited pain on palpitation of both feet. The examiner observed that the Veteran had a small exostosis medial on each foot, as well as hyperkeratosis and early signs of the hallux valgus deformity. The examiner concluded that the Veteran's pes planus would cause a decrease in shock absorption and would yield an increase in weakness and fatigue. The examiner also diagnosed flexible hammertoes 2-4 on each foot secondary to her pes planus. In her April 2008 notice of disagreement (NOD), the Veteran wrote that the pain in her feet was becoming unbearable. VA treatment records show that the Veteran was hospitalized overnight in July 2008 after presenting to the emergency room with right foot pain that radiated up to the hip with muscle spasms. On a scale of 0-10, the Veteran rated her pain as an 8. In a May 2010 email correspondence with the RO, the Veteran included a photograph of her right foot and described her 2008 hospitalization for foot pain. The Veteran said her feet were still painful and that neither pain medication nor orthotics relieved the pain. In April 2014, the Veteran reported pain in her left foot, spasms in both legs, and foot problems with the bones in both feet. See April 29, 2014 Washington VAMC Treatment Note. The Veteran was observed to have deformities in foot pronation in the left foot more than the right. In July 2014, the Veteran sought treatment for a corn on her left fourth toe and reported awkwardness in walking. See July 23, 2014 Washington VAMC Treatment Note. In September 2014, the Veteran again sought treatment for foot pain. See September 23, 2014 Washington VAMC Treatment Note. She reported cramping in her feet and increased pain when putting on shoes. She had received new orthotics, but they did not relieve her pain. She was observed to have deformities in pronation. Washington VAMC treatment records show the Veteran continued to seek treatment periodically for foot pain between 2014 and 2016. In June 2016, the Veteran was afforded a VA examination concerning her service-connected right and left pes planus with fascia and hallux valgus with hammer toe of the second and fifth digits. The Veteran did not report pain, flare-ups impacting foot function, or functional loss of either foot. On physical examination, the Veteran exhibited pain on use of her feet, but not on manipulation, nor swelling or characteristic callouses. She exhibited pain accentuated on use of each foot, as well as decreased longitudinal arch height of both feet on weight bearing. The examiner observed objective evidence of marked deformity on both feet. The examiner noted no functional loss during flare-ups or when the foot was used repeatedly over a period of time. However, the examiner also concluded that the functional impact of the Veteran's foot disabilities was that the Veteran could only stand or walk for 15 minutes at a time before feeling pain. The Veteran was afforded another VA examination concerning her left and right foot disabilities in June 2017. The Veteran reported bilateral foot pain with flare-ups resulting in functional impairment. The Veteran exhibited pain on use and manipulation of both feet. She also exhibited extreme tenderness of the plantar surface of each foot, not improved by orthotics. The examiner observed decreased longitudinal arch of both feet on weight bearing, as well as objective evidence of marked deformity and marked pronation of both feet. The Veteran was found to have hammertoe in the third, fourth, and fifth toes on each foot. Functional ability was also noted to be negatively impacted by plantar fasciitis. The examiner noted generalized pain in stance with both feet. The examiner concluded that the Veteran's foot conditions impact her ability to perform occupational tasks by limiting her ability to stand and walk for long periods of time. Overall, the Board finds that a 30 percent rating is warranted for the Veteran's left and right foot disabilities for the entire period on appeal. As previously discussed, a 30 percent unilateral rating is warranted for pronounced disability with symptoms 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. In this case, the evidence throughout the appeals period shows that the Veteran has consistently exhibited marked deformities with significant pain in both feet, which has not been relieved by orthotic devices. The impact of the Veteran's painful pes planus in each foot has been loss of occupational function due to an inability to walk or stand for long periods of time. The Board finds that a separate rating for hammer toe under DC 5282 is not warranted. DC 5282 allows for a maximum 10 percent evaluation if hammer toe is present on all toes unilaterally; however, the evidence of record here shows that while the Veteran has some hammer toes, she does not exhibit hammer toes on all five toes of either foot. Therefore, a separate 10 percent rating is not warranted under DC 5282 for hammer toes. The Board also finds that a separate 10 percent rating for hallux valgus under DC 5280 is not warranted. First of all, a rating under DC 5280 is warranted for surgical resection of a metatarsal head, or for severe disability equivalent to an amputated big toe, neither of which is established by the record. Moreover, awarding two separate disability ratings under DCs 5276 and 5280 would constitute improper pyramiding, as symptomatology for one condition is "duplicative of or overlapping with the symptomatology of the other condition." Esteban, 6 Vet. App. at 262. In this case, the Veteran's 30 percent ratings under DC 5276 already contemplate pain and limitation of range of motion. Accordingly, the Board finds that a separate rating for hallux valgus would be based on overlapping or duplicate symptomatology. Additionally, the pertinent evidence of record does not show bilateral weak foot (DC 5277), claw foot (DC 5278, pes cavus), metatarsalgia (DC 5279), hallux rigidus (DC 5281), or malunion or non-union of the tarsal bones (DC 5283). The Veteran's disabilities consist of pes planus with fascia and hallux valgus with hammer toe of second and fifth digits of both the left foot and right foot, and the symptoms of her disabilities, such as pronation, tenderness, and pain, are expressly contemplated by DC 5276. Therefore, the Board finds that there is no basis for the assignment of a higher or separate evaluation under any additional Diagnostic Codes. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a rating of 30 percent, but not higher, for the entire period on appeal for service-connected pes planus with fascia and hallux valgus with hammer toe of second and fifth digits of the left foot, is granted, subject to the regulations governing the award of monetary benefits. Entitlement to a rating of 30 percent, but not higher, for the entire period on appeal for service-connected pes planus with fascia and hallux valgus with hammer toe of second and fifth digits of the right foot, is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs