Citation Nr: 1806270 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-11 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent prior to February 2, 2012, and in excess of 30 percent from February 2, 2012 to May 3, 2017, and in excess of 50 percent since May 4, 2017, for service-connected bilateral foot disability. 2. Whether separate compensable evaluations are warranted for degenerative joint disease of the feet. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from September 1972 to May 1978. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in April 2017. In April 2016, the matter came back before the Board on Remand from the United States Court of Appeals for Veterans Claims regarding a Board decision rendered in October 2014. This matter is originally on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Muskogee, Oklahoma. Bifurcation of a claim generally is within the Secretary's discretion. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that "it was not inappropriate" for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased-ratings claim). In this case, the Board has bifurcated the claim on appeal into two issues, separating out the issue of entitlement to a separate compensable evaluation for degenerative joint disease of the feet, so that development required for this particular issue did not preclude adjudication of the entire claim. In August 2014, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. The issue of whether separate compensable evaluations are warranted for degenerative joint disease of the feet is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to February 2, 2012, the Veteran's service-connected bilateral foot disability, bilateral pes planus, bilateral plantar fasciitis, and degenerative joint disease of the left first metatarsal joint, was manifested foot pain, burning sensations, weakness, moderate tenderness to palpitation, inward bowing of the Achilles tendons and x-ray evidence of severe degenerative joint disease of the first metatarsal joint and a small calcaneal enthesophyte at Achilles tendon insertion; it was not manifested by marked deformity, malalignment of the forefoot and mid-foot, characteristic callosities, or swelling on use attributable to pes planus. 2. From February 2, 2012 to May 3, 2017, the Veteran's service-connected foot disability was manifested by pain on use, characteristic calluses, and decreased longitudinal arch height on weight bearing; it was not manifested by marked deformity of the foot, marked pronation, extreme tenderness of the plantar surface, or marked inward displacement and severe spasm of the Achilles tendon, not improved by orthopedic shoes or appliances. 3. Since May 4, 2017, the Veteran has been in receipt of the maximum schedular rating of 50 percent for the Veteran's service-connected bilateral foot disability. CONCLUSIONS OF LAW 1. Prior to February 2, 2012, the criteria for an evaluation in excess of 10 percent for the Veteran's service-connected bilateral foot disability, bilateral pes planus, bilateral plantar fasciitis, and degenerative joint disease of the left first metatarsal joint, are not met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5276 (2017). 2. From February 2, 2012 to May 3, 2017, the criteria for an evaluation in excess of 30 percent for the Veteran's service-connected bilateral foot disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5276. 3. Since May 4, 2017, the criteria for an evaluation in excess of 50 percent for the Veteran's service-connected bilateral foot disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters Pursuant to the Board's April 2017 Remand, the Appeals Management Center (AMC) scheduled a VA examination to determine the current severity of the Veteran's service-connected bilateral foot disorder, readjudicated the claim, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's April 2017 Remand. Stegall v. West, 11 Vet. App. 268 (1998). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. Moreover, during the August 2014 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities of the feet are contemplated by Diagnostic Codes 5276 through 5284, which in some instances, provide for disability ratings for unilateral or bilateral disabilities. 38 C.F.R. § 4.71a. The Veteran's service-connected foot disabilities, bilateral pes planus, plantar fasciitis, and degenerative arthritis have been rated as 10 percent disabling prior to February 2, 2012, 30 percent disabling from February 2, 2012 to May 3, 2017, and 50 percent disabling since March 4, 2017, pursuant to 38 C.F.R. § 4.124a , Diagnostic Code 5276. Under Diagnostic Code 5276, for acquired flatfoot, a noncompensable evaluation is assigned for mild symptoms relieved by guilt-up shoe or arch support. A10 percent evaluation is assigned for unilateral or bilateral moderate disabilities of the feet with the weight-bearing line over or medial to the great toe, inward bowing of the tendo-Achilles, and pain on manipulation and use of the feet. A 30 percent evaluation is assigned for bilateral (20 percent for unilateral) severe acquired disabilities of the feet with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities. A 50 percent evaluation is assigned for bilateral (30 percent for unilateral) pronounced acquired disabilities of the feet with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). Under Diagnostic Code 5284, for other foot injuries, a 10 percent evaluation is assigned for moderate injury, a 20 percent evaluation is assigned for moderately severe injury, and a 30 percent evaluation is assigned for severe injury. With actual loss of use of the foot, a 40 percent evaluation is assigned. Initially, the Board notes that as the Veteran's service-connected bilateral foot disability is not manifested by claw foot (pes cavus) or impairment of the tarsal or metatarsal bones, Diagnostic Codes 5278 and 5283 are not for application. The Veteran was provided a QTC examination in August 2010, during which he reported pain in the heels and center of his feet, which occurred 18 times per day and lasted for one hour. He noted that the pain was localized, sharp in nature, and approximately an 8/10, but he was able to function with medication. He reported he had limitations standing and walking, could only walk 1/4 mile, and required orthopedic shoes. He stated that at rest, his feet swelled, but he had no pain, weakness, stiffness, or fatigue. He reported pain, weakness, and swelling while standing, but denied stiffness and fatigue. The Veteran denied any hospitalizations or surgery for his pes planus. With regard to functional impairment, he stated he worked as a landscaper and could not use a weed eater because of his feet and back. On visual examination, the Veteran had a left leaning posture due to left foot and back pain, abnormal weight bearing, and weight-bearing line over or medial to the big toe. There was no evidence of unusual shoe wear pattern, callosities, or breakdown. The examiner noted that the Veteran required corrective shoes due to his pes planus, but did not require an assistive device for ambulation. Upon physical examination, the Veteran had bilateral edema, tenderness, and redness. Bilaterally, there was no evidence of painful motion, disturbed circulation, weakness, muscle atrophy, heat, or instability. The Veteran had active motion in his bilateral metatarsophalangeal joints of his great toes. Palpation of the plantar surface of both feet revealed moderate tenderness. During weight bearing and non-weight bearing, the Veteran had inward bowing of his bilateral Achilles tendons, and pain during manipulation. Moderate valgus was present bilaterally, but there was no forefoot/midfoot malalignment, inward rotation of the superior os calcis, medial tilting of the talus, marked pronation, hallux valgus, hallux rigidus, hammertoe, or Morton's Metatarsalgia. X-rays revealed no malalignment on weight bearing and normal plantar arches bilaterally. A small calcaneal enthesophyte at the plantar aponeurosis of the right foot and severe degenerative joint disease of the first metatarsal of the joint and a small calcaneal enthesophyte at the Achilles tendon insertion were noted on the left. The examiner noted that the Veteran required orthopedic shoes, but did not require arch supports, foot supports, build-up of shoes, or shoe inserts. The examiner stated that the Veteran's symptoms were not relieved by his orthopedic shoes. The examiner opined that the Veteran had active bilateral pes planus, with subjective factors of bilateral foot pain with walking and standing, and objective factors of abnormal examination. The examiner also noted that x-rays of the Veteran's left foot revealed degenerative joint disease of the left first metatarsal joint, which caused significant pain and added to the existing foot pain. The examiner noted that the effect of the condition on the Veteran's usual occupation was that he was unable to work as quickly or as long as he previously had, and that he had painful ambulation. In an addendum to the August 2010 report, the examiner stated that the Veteran's bilateral edema or swelling was related to systemic illness and treatment and not due to his pes planus. The examiner also noted that foot tenderness was related to pes planus and was not confined to the area of the Veteran's arthritic left toe. A November 2010 VA treatment record noted that despite health problems, the Veteran was active and had roofed his house that summer and recently gone deer hunting. On lower extremity examination, there was no evidence of swelling or abnormal gait. A June 2011 record noted that the Veteran reported that his feet were bothering him and that his diabetic shoes and insoles had fallen apart. The Veteran reported several physical ailments that interfered with and were exacerbated by his work as a landscaper. Pes planus was not mentioned. The physician noted that the Veteran's gait was normal and there was no evidence of lower extremity swelling. A December 2011 VA primary care record noted that the Veteran had recently walked approximately four miles while on a hunting trip, displayed a normal gait, and had no lower extremity swelling. An April 2012 primary care record noted the Veteran had a normal gait and was able to heel-to-walk. No reports of foot pain were noted. VA diabetic foot examinations throughout the appeal period were also silent for any reports of pain or abnormalities pertaining to his pes planus. The Veteran was provided a VA pes planus examination in February 2012. The examiner noted that the Veteran reported that his foot pain developed in the 1970s and had been worsening since that time. The examiner indicated that the Veteran had bilateral pain on use, characteristic calluses, and decreased longitudinal arch height on weight bearing. There was no evidence of painful manipulation, swelling on use, marked foot deformity, marked pronation, weight bearing line over or medial to the great toe, inward bowing of the Achilles' tendon, or marked inward displacement or severe spasm of the Achilles tendon. The examiner noted that the Veteran did not have a lower extremity deformity other than pes planus, which caused alteration of the Veteran's weight bearing line, or other pertinent physical findings. The examiner noted that the Veteran's symptoms were relieved by arch supports, built up shoes, or orthotic, and that he did not require any assistive devices for normal locomotion. The examiner noted that the Veteran's remaining functioning was not such that amputation with prosthesis would equally serve the Veteran and that the Veteran's condition did not impact his ability to work. At his August 2014 hearing, the Veteran testified that he experienced stinging and burning sensations in the center of his feet, that he was instructed to elevate his feet, but could not do so because it made them go numb, that he had swelling and fluid retention, and that he had pain in his ankle joints when his feet were manipulated. He noted that the VA had given him a handicap sticker and provided orthotic shoes. The Veteran clarified that his orthotic shoes were because of his diabetes and that the stinging sensation in his feet was related to a staph infection, not his pes planus. He stated that while shopping he used a handicapped cart if his feet hurt a lot. With regard to his degenerative joint disease of the first metatarsal, the Veteran reported that even while resting, his toes ached. With regard to functional impairment, the Veteran reported that his landscaping work took him longer than it used to, that he took more breaks, that he worked less hours, and that he lost some clients. The Veteran underwent VA examination in May 2017 at which time he was diagnosed as having pes planus, plantar fasciitis, and degenerative arthritis of both feet. The Veteran reported bilateral foot pain as stinging and aching pain, he described flare-ups as very painful making it difficult to stand, walk, and drive, and he reported that his foot disability limited prolonged walking and standing. The Veteran had pain on use and pain accentuated on manipulation of both feet. The Veteran had extreme tenderness of plantar surfaces of both feet that was not improved by orthopedic shoes or appliances. There was decreased longitudinal arch height of both feet on weight bearing, marked pronation of both feet, and the weight bearing line falls over or medial to the great toe of both feet. There was no swelling on use or characteristic calluses, no objective evidence of marked deformity, no "inward" bowing of the Achilles' tendon, and no marked inward displacement and severe spasm of the Achilles' tendon. The examiner noted that the Veteran had degenerative joint disease of both feet which was mild on the left and moderately severe on the right. The examiner noted that the Veteran's foot condition did not chronically compromise weight bearing. The examiner noted that pain on weight bearing and that there was pain, weakness, fatigability, or incoordination that limited prolonged standing and walking of both feet during flare ups or when the foot was used repeatedly over a period of time. The Veteran did not use any assistive devices as a normal mode of locomotion. Initially, the Board notes the Court has held that the Board is precluded from differentiating between the symptomatology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curium), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). In the present case, there is no medical evidence which provides such a differentiation between the Veteran's foot symptoms and which are attributable to his service-connected pes planus as opposed to the other, nonservice-connected foot disabilities. As such, the Board will assume that no such differentiation can be made, and all symptoms will be attributed to his service-connected pes planus. For the period prior to February 2, 2012, the evidence is against a finding that the Veteran's service-connected bilateral foot disability, bilateral pes planus, bilateral plantar fasciitis, and degenerative joint disease of the left first metatarsal joint, warrants a rating in excess of 10 percent. Although the Veteran had foot pain accentuated by use, burning sensations, weakness, moderate tenderness to palpitation, and inward bowing of the Achilles tendons, the evidence is against a finding that there was objective evidence of marked deformity, malalignment of the forefoot and mid-foot, characteristic callosities, marked pronation, or marked inward displacement and severe spasm of the tendo Achilles, or swelling on use attributable to pes planus. Accordingly, his bilateral pes planus did not more nearly approximate the rating criteria for severe pes planus. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). For the period from February 2, 2012 to May 3, 2017, the evidence is against a finding that the Veteran's service-connected bilateral foot disability warrants a rating in excess of 30 percent. Although the Veteran had pain on use, characteristic calluses, and decreased longitudinal arch height on weight bearing, the evidence is against a finding that he had marked deformity of the foot, marked pronation, swelling on use, extreme tenderness of the plantar surface of the feet, or marked inward displacement and severe spasm of the Achilles tendon. Accordingly, his bilateral pes planus did not more nearly approximate the rating criteria for pronounced pes planus. Id. Since May 4, 2017, the Veteran is receiving the maximum schedular rating of 50 percent under Diagnostic Code 5276. As the maximum rating under Diagnostic Code 5276 for bilateral pes planus has been assigned, the Veteran's claim for a rating in excess of 50 percent for bilateral pes planus under this Diagnostic Code is not available. The Board has considered whether Diagnostic Code 5284 (for "other" foot injuries) is applicable to present case, as the Veteran's service-connected pes planus encompasses plantar fasciitis, a foot condition that is not specifically listed in Diagnostic Codes 5276 through 5283. In this regard, the Board finds that the Veteran's plantar fasciitis is adequately contemplated by his assigned ratings under Diagnostic Code 5276. Plantar fasciitis is defined in part as inflammation of the soles of the feet. See Stedman's Medical Dictionary 1392, 652 (27th ed. 2000). Diagnostic Code 5276 explicitly considers swelling, pain, and tenderness of the plantar surfaces of the feet. As such, Diagnostic Code 5276 is the proper diagnostic code to apply to his service-connected pes planus with plantar fasciitis. Similarly, a separate rating for plantar fasciitis under Diagnostic Code 5284 would result in prohibited pyramiding, as the symptomatology for the Veteran's pes planus overlaps with the symptomatology of his plantar fasciitis. 38 C.F.R. § 4.14. The Board acknowledges the Veteran's lay statements with regard to his bilateral pes planus with degenerative joint disease of the left first metatarsal. The Veteran is competent to report his symptoms, as this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). He is not, however, competent to identify a specific level of disability to the appropriate diagnostic criteria or attribute his symptoms to a specific diagnosis. Accordingly, the Board has afforded greater weight to VA examination reports and treatment records. All potentially applicable diagnostic codes have been considered, and the Veteran is not entitled to ratings in excess of the ratings already assigned. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). For these reasons, the Board determines that the preponderance of the evidence against granting a rating in excess of 10 percent prior to February 2, 2012, and against granting a rating in excess of 30 percent from February 2, 2012 to May 3, 2017. The discussion above reflects that the symptoms of the Veteran's service-connected bilateral foot disability are contemplated by the applicable rating criteria. The effects of his disability, to include limitations standing, walking, and driving due to pain, weakness, and swelling, have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether his disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extra-schedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an evaluation in excess of 10 percent prior to February 2, 2012 for service-connected bilateral foot disability, bilateral pes planus, bilateral plantar fasciitis, and degenerative joint disease, is denied. Entitlement to an evaluation in excess of 30 percent from February 2, 2012 to May 3, 2017, for service-connected bilateral foot disability is denied. Entitlement to an evaluation in excess of 50 percent since May 4, 2017, for service-connected bilateral foot disability is denied. REMAND The Board is required to consider whether separate disability ratings are warranted for the Veteran's foot degenerative joint disease. The April 2016 Memorandum Decision stated, "[The Veteran] correctly notes that he has DJD of the left first metatarsal, and the Board denied a separate rating because it found that the pain associated with this disability was due to his pes planus. This finding may explain why the pain does not warrant a separate or increased rating, but it does not explain why the disability itself does not warrant a separate rating under its own DC." For the purpose of rating disability from arthritis, the interphalangeal, metatarsal, and tarsal joints are considered groups of minor joints. See 38 C.F.R. § 4.45. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1. X-rays in August 2010 revealed a small calcaneal enthesophyte at the plantar aponeurosis of the right foot and severe degenerative joint disease of the first metatarsal of the joint and a small calcaneal enthesophyte at the Achilles tendon insertion were noted on the left. Although the May 4, 2017, VA examiner noted that the Veteran had degenerative joint disease of both feet, no imaging studies of the feet had been performed. In addition, in order to determine whether the pain and disability from the degenerative joint disease can be differentiated from the pain and disability from the pes planus and plantar fasciitis, an examination addressing the symptoms and disability from each diagnosis of the feet is required. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (the critical element in permitting the assignment of several ratings 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). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an additional VA foot examination by a physician with expertise in diagnosing and treating foot disorders. The physician is to be provided access to the claims file in conjunction with the examination. The examiner should solicit from the Veteran specific symptoms, including areas of pain, related to his service-connected bilateral foot disability. Thereafter, physical examination of both feet should be conducted, including x-rays of both feet, to determine the existence and severity of degenerative joint disease. After a review of the file and physical examination of the Veteran, the examiner is requested to attempt to differentiate the symptomatology attributable to the Veteran's foot degenerative joint disease from the symptomatology attributable to his pes planus, and also from the symptomatology attributable to his plantar fasciitis. If such differentiation is not possible, the physician should so state. 2. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs