Citation Nr: 1801507 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-04 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial compensable rating prior to April 3, 2015, and a rating in excess of 20 percent thereafter, for plantar fasciitis metatarsalgia, right foot (right foot disability). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2001 to December 2001 and from August 2005 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the Veteran appealed the denial of service connection for posttraumatic stress disorder (PTSD). An October 2016 rating decision granted service connection for PTSD, which constituted a full grant of the benefit sought. Accordingly, the claim is no longer in appellate status and is thus not currently before the Board. The October 2016 rating decision also assigned a 20 percent rating for the right foot disability, effective April 3, 2015. FINDINGS OF FACT 1. The competent and probative evidence demonstrates metatarsalgia of the right foot prior to April 3, 2015. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran's right foot disability more nearly approximates the criteria for pronounced flatfoot of the right foot as of April 3, 2015. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent, but no higher, for a right foot disability prior to April 3, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5279 (2017). 2. The criteria for an initial disability rating of 30 percent, but no higher, for a right foot disability as of April 3, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA sent a letter to the Veteran in October 2009, prior to adjudication of her claim. No further notice is required regarding the downstream issue of a higher initial rating for a right foot disability as it stems from the grant of service connection, and no prejudice has been alleged. Next, VA has a duty to assist the Veteran in the development of her claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). All available, identified medical records have been associated with the virtual file and considered. The Veteran was afforded VA examinations in October 2009 and April 2015. In her notice of disagreement, the Veteran contends that the October 2009 VA examination was inadequate because the examiner only looked at her foot, no movement was done, and the examiner did not ask the Veteran about pain. However, as the Board is assigning a separate compensable rating under Diagnostic Code 5279 for metatarsalgia, which accounts for pain, the Veteran is not prejudiced by the claimed inadequacies. Moreover, the Board notes that the October 2009 VA examination reflects the Veteran's report of foot pain, indicating that the examiner asked the Veteran about pain. In light of the foregoing, the Board will proceed to the merits of the appeal. II. Increased Rating 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. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14 (2016); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The Veteran contends that she is entitled to an initial compensable rating prior to April 3, 2015, and a rating in excess of 20 percent thereafter for a right foot disability, evaluated under Diagnostic Code 5276 for pes planus (flat feet). Historically, the April 2010 rating decision granted service connection for plantar fasciitis metatarsalgia of the right foot based on her service treatment records and an October 2009 VA examination report. Under Diagnostic Code 5276, a noncompensable rating is warranted for acquired flatfoot that is mild in severity, which is relieved by built-up shoe or arch support. A 10 percent rating is assigned for unilateral or bilateral moderate flatfoot, characterized by weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 20 percent rating is warranted for severe unilateral flatfoot with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A maximum 30 percent rating is warranted for pronounced unilateral flatfoot with marked pronation, extreme tenderness of plantar surfaces, marked inward displacement and severe spams of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. Diagnostic Code 5279 provides for a 10 percent rating for unilateral or bilateral metatarsalgia. 38 C.F.R. § 4.71a, DC 5279. Diagnostic Code 5284 applies to non-specified feet disabilities and provides for a 10 percent rating for a moderate injury, a 20 percent rating for a moderately severe injury, and a 30 percent rating for a severe injury. 38 C.F.R. § 4.71a, DC 5284. A. Prior to April 3, 2015 After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that an initial disability rating of 10 percent, but no higher, for right foot metatarsalgia prior to April 3, 2015, is warranted. An August 2009 treatment note reflects diagnoses of pes planus and plantar fasciitis, with complaints of pain in the arch of the foot, worse in the morning and after sitting for a prolonged period and then weight bearing. The clinician noted mild collapse of medial longitudinal arch upon weight bearing with diminished pedal pulses. Custom orthotics was requested at that time. 10/17/2009, CAPRI. In October 2009, a VA examiner found plantar fasciitis and metatarsalgia, with right foot pain at the arch and pain with prolonged walking and standing. The Veteran was receiving partial relief from the custom orthotics. The examiner found no evidence of weakness, painful motion, swelling, tenderness, instability, abnormal weight bearing, pronation, pain on manipulation, muscle atrophy, or deformity, and noted a normal gait. The Veteran reported no flare-ups, and stated that she can stand for 15-30 minutes and can walk 2.5 miles. The examiner indicated significant occupational effects, and mild impact on exercise and sports, but no other impact on activities of daily living (ADLs). 10/30/2009, VA Exam. The Board finds the VA examiner to be competent, credible, and probative, as the report is supported by an in-person examination, an adequate rationale, medical expertise, and proper consideration of the Veteran's lay statements. In a July 2010 notice of disagreement, the Veteran reported that she experiences constant right foot pain and that running causes severe pain, swelling, tenderness, and instability. 07/19/2010, NOD. In February 2010, the Veteran was given a permanent physical profile for her Army Reserve service, with certain limitations due to her right foot disability. Subsequent physical profile reports and functional capacity evaluations note limitations in the ability to run two miles and perform pushups; however, the Veteran is able to walk 2.5 miles in lieu of running. 08/23/2016, STR; 04/26/2016, Correspondence. Accordingly, the Board finds that the competent and probative evidence demonstrates right foot metatarsalgia prior to April 3, 2015, warranting a 10 percent rating (the only available rating) under Diagnostic Code 5279. 38 C.F.R. § 4.71a, DC 5279. The Board notes the switch in diagnostic codes, but notes that metatarsalgia was granted as part of her service-connected right foot disability in the April 2010 rating decision. The Board has reviewed the applicable evidence against other potentially applicable diagnostic codes. However, the Board finds that a higher rating is not warranted under Diagnostic Code 5276 for flatfoot because the weight of the competent and probative evidence is against finding objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation not improved by orthopedic shoes or appliances. The Board acknowledges the Veteran's statement that running results in severe pain, swelling, tenderness, and instability, but finds that the Veteran's disability picture does not more nearly approximate severe or pronounced flatfoot. See 38 C.F.R. § 4.71a, DC 5276. In fact, the symptoms of pain and tenderness along the plantar surface are contemplated by Diagnostic Code 5279 for metatarsalgia. See Overview of running injuries of the lower extremity, UpToDate, https://www.uptodate.com/contents/ overview-of-running-injuries-of-the-lower-extremity (stating that metatarsalgia "is a general term for pain that occurs along the ball of the foot" and noting that most runners with metatarsalgia complain of pain in the forefoot during running) (last visited Dec. 27, 2017). The Board also finds that a higher rating is not warranted under Diagnostic Code 5284 for an unspecified foot injury, as the weight of the competent and probative evidence is against finding a moderately severe or severe foot injury. The Board acknowledges the Veteran's report of limitations in running, standing, and walking, but notes that the Veteran is able to walk 2.5 miles and has no limitations in her ADLs other than athletic activities. The Board finds that such evidence of ADLs weighs against a finding of a moderate right foot disability. Accordingly, the Board finds that the Veteran's disability picture does not more nearly approximate a moderately severe right foot injury. See 38 C.F.R. § 4.71a, DC 5284. The Board considered all potentially applicable diagnostic codes in accordance with Schafrath, 1 Vet. App. 589; however, the evidence does not show symptoms that could be separately rated higher under another diagnostic code. See 38 C.F.R. § 4.71a. The benefit of the doubt has been applied as applicable. B. As of April 3, 2015 After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that an initial disability rating of 30 percent, but no higher, for a right foot disability as of April 3, 2015, is warranted. On April 3, 2015, a VA examiner indicated diagnoses of plantar fasciitis and metatarsalgia, and acknowledged the Veteran's report of pain (sometimes sharp) and occasional tingling. The Veteran did not report flare-ups and the examiner indicated no functional loss or functional impairment due to the right foot disability. The examiner found pain accentuated on use, but found no pain on manipulation of the feet, no characteristic callouses, no extreme tenderness on plantar surfaces, no decreased longitudinal arch height on weight bearing, no deformity, no pronation, weight bearing line does not fall over or medial to great toe, no inward bowing of Achilles tendon, and no inward displacement and severe spasm of Achilles tendon on manipulation. The examiner further found that pain, fatigue, instability, and weakness do not significantly limit functional ability during flare-ups or when the foot is used repeatedly over period of time. The Veteran denied use of an assistive device. The examiner concluded that right foot pain may mildly impact employment to the extent walking further than half a mile without rest is required. 04/03/2015, VA Exam. In May 2016, VA received a private disability benefits questionnaire (DBQ), which indicated symptoms of pain on use of foot, pain on manipulation, swelling on use, and extreme tenderness on plantar surfaces improved by use of orthotics. The examiner also found objective evidence of marked deformity and marked pronation, but no characteristic calluses. The Veteran denied use of an assistive device. 05/12/2016, Other. In November 2017, VA received another private DBQ, which reflected the Veteran's report of pain on movement and manipulation, limited range of motion and extreme pain during flare-ups, and the inability to walk or stand for long periods of time. The clinician found pain on use of feet accentuated by manipulation, swelling, and extreme tenderness on the plantar surfaces not improved by orthotics, but found no evidence of marked deformity, decreased longitudinal arch on weight bearing, or pronation. The right foot disability was found to result in less movement than normal, pain on movement, pain on weight bearing, swelling, disturbance of locomotion, and interference with standing. The Veteran reported the inability to walk or stand during flare-ups. Regarding occupational limitations, the clinician recommended a sedentary position due to flare-ups and sensitivity. 11/06/2017, Other. Based on the foregoing, the Board finds that the competent and probative medical and lay evidence is at least in equipoise as to whether the Veteran's right foot disability more nearly approximates the criteria for pronounced flatfoot, warranting the maximum 30 percent rating for a unilateral foot disability under Diagnostic Code 5276. The Board considered all potentially applicable diagnostic codes in accordance with Schafrath, 1 Vet. App. 589; however, the evidence does not show symptoms that could be rated higher under another diagnostic code, as 30 percent is the maximum available schedular rating for a unilateral foot disability and no other diagnostic code could provide a higher rating for the right foot disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-84. ORDER An initial disability rating of 10 percent, but no higher, for a right foot disability prior to April 3, 2015, is granted. An initial disability rating in excess of 30 percent, but no higher, for a right foot disability as of April 3, 2015, is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs