Citation Nr: 18142984 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 12-18 269 DATE: October 17, 2018 ORDER Entitlement to a compensable rating for hypertension is denied. Entitlement to a rating in excess of 10 percent for post-operative residuals of a right tarsal tunnel release is denied. Entitlement to rating in excess of 10 percent for a left tarsal tunnel syndrome is denied. Entitlement to special monthly compensation based on loss of use of the right foot is denied. Eligibility for financial assistance for an automobile or adaptive equipment is denied. REMANDED The issue regarding what initial rating is warranted for migraine headaches is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. REFERRED The issue of entitlement to service connection for a right knee disorder, to include secondary to bilateral plantar fasciitis with pes planus, bilateral tarsal tunnel syndrome, status-post surgery with release, and right hallux valgus, was raised in a July 2012 statement. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. FINDINGS OF FACT 1. The Veteran’s hypertension was not manifested by diastolic pressure predominantly 100 or more, a systolic pressure predominantly 160 or more, or by a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 2. The Veteran’s right tarsal tunnel syndrome, status-post tarsal tunnel release is not manifested by severe incomplete paralysis of the posterior tibial nerve, or by complete paralysis of all muscles of the sole of the foot. 3. The Veteran’s left tarsal tunnel syndrome, status-post tarsal tunnel release is not manifested by severe incomplete paralysis of the posterior tibial nerve, or by complete paralysis of all muscles of the sole of the foot. 4. The Veteran is service-connected for posttraumatic stress disorder; bilateral plantar fasciitis with pes planus; residual scars from tarsal tunnel release surgery; bilateral tarsal tunnel syndrome, status-post surgery with release; allergic rhinitis; hypertension; uterine fibroids; migraine headaches; and right foot hallux valgus. 5. The Veteran’s service-connected right foot disabilities are not so severe that 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. 6. The Veteran’s service-connected disabilities do not result in loss or loss of use of a hand or foot, permanent impairment of both eyes with central visual acuity of 20/200 or less, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of a knee or hip. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.104, Diagnostic Code 7101. 2. The criteria for entitlement to a rating in excess of 10 percent for right tarsal tunnel syndrome, status-post tarsal tunnel release have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8525. 3. The criteria for entitlement to a rating in excess of 10 percent for left tarsal tunnel syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8525. 4. The criteria for establishing entitlement to special monthly compensation for the loss of use of the right foot have not been met. 38 U.S.C. §§ 1114(k), 5107; 38 C.F.R. §§ 3.321, 3.350, 4.63. 5. The criteria for establishing eligibility for financial assistance for an automobile or adaptive equipment are not met. 38 U.S.C. §§ 3901, 3902, 5107; 38 C.F.R. §§ 3.350, 3.808. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1998 to May 2010. The Veteran testified at a June 2015 Board hearing. In July 2018 the Veteran was notified that the Judge who conducted that hearing was no longer with the Board. The Veteran was offered the opportunity for a new hearing but declined. Increased Rating Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the two evaluations shall be applied, 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. Hypertension The Veteran contends that her hypertension is more severely disabling than represented by the currently assigned noncompensable rating. The Veteran was granted entitlement to service connection for hypertension in an August 2010 rating decision, rated noncompensable effective from May 11, 2010. The Veteran appealed. The Veteran’s hypertension is rated under Diagnostic Code 7101 for hypertensive vascular disease. 38 C.F.R. § 4.104, Diagnostic Code 7101. Under diagnostic code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or as the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. The Veteran’s service records reveal numerous normal blood pressure readings. From November 2007 through April 2009, her service records reported elevated readings of 142/92, 160/96, 148/96, 134/94, 132/92, 137/97, 140/97 and 140/92. In October and November 2008, readings of 149/100 and 145/101 were reported respectively. A September 2009 VA examination revealed readings of 135/91, 125/86 and 124/85. The Veteran was noted to be taking hypertension medication at that time. VA treatment records from July 2010 through July 2017 reveal elevated blood pressure readings of 136/90, 128/93, 136/94, 132/93, 126/90, 140/90, 133/98, 127/92, 128/90 and 144/94. In July 2017 a reading of 135/102 was reported. VA treatment records from July 2010 through November 2011 reported that the Veteran was prescribed medication for high blood pressure. Thereafter, the record is silent for treatment with blood pressure medication. In March 2017, the Veteran was afforded a VA examination with regard to her hypertension. Blood pressure readings were 151/91, 144/95 and 147/98. The examiner noted that the Veteran was not taking any medication for hypertension at the time, and did not have a history of diastolic blood pressure elevation to predominantly 100 or more. At a May 2018 VA examination, readings of 137/97, 137/97 and 142/98 were reported. The examiner stated that a review of the VA treatment records did not reveal a history of diastolic blood pressure elevation to predominantly 100 or more, and the Veteran was not taking hypertension medication. A private treatment record from June 2018 revealed an elevated blood pressure reading of 142/94. The Board acknowledges that the Veteran was prescribed medication to manage her hypertension during the period on appeal, specifically from July 2010 through November 2011. However, the record at no time reveals evidence of a diastolic pressure that was predominantly 100 or more, a systolic pressure that was predominantly 160 or more, or a history of diastolic pressure that was predominantly 100 or more, as is required for a compensable rating. The Veteran showed diastolic blood pressure above 100 in October and November 2008 as well as in July 2017. However, in light of the many diastolic blood pressure readings below 100, the isolated October and November 2008, and July 2017 readings do not warrant a finding of diastolic readings predominantly 100 or above, or a history of such readings. In sum, based on the evidence and analysis above, the Board finds that the criteria for a compensable rating for hypertension are not met. Accordingly, the claim must be denied. Bilateral tarsal tunnel syndrome The Veteran contends that her bilateral tarsal tunnel syndrome, status-post surgery with release is more severely disabling than represented by the currently assigned 10 percent ratings. The Veteran was granted entitlement to service connection for bilateral tarsal tunnel syndrome status-post right foot surgery with release in an August 2010 rating decision. Each foot has been rated as 10 percent disabling since May 11, 2010. The Veteran appealed. The Veteran’s bilateral tarsal tunnel syndrome status-post surgery is rated 10 percent disabling, according to Diagnostic Code 8525, which contemplates mild to moderate incomplete paralysis of the posterior tibial nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8525. Diagnostic Code 8525 provides ratings based on paralysis of the posterior tibial nerve. The minimum 10 percent rating is warranted for incomplete mild paralysis. A 10 percent rating is also warranted for moderate incomplete paralysis. A 20 percent rating is warranted for severe incomplete paralysis. The maximum 30 percent rating is warranted for complete paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired. Id. At a September 2014 VA foot examination, the examiner noted diagnoses of right hallux valgus, bilateral plantar fasciitis, and bilateral tarsal tunnel syndrome. The Veteran reported bilateral arch pain, right greater than left, and pain around posterior right foot in the calcaneal area. She also reported numbness and tingling to the right first, second and third toes and the midfoot. A June 2015 VA orthotics appointment record noted reduced ankle strength, and that the Veteran had been provided two ankle stabilizing orthoses. A June 2015 letter of Dr. R.R. noted that the Veteran’s lower extremities were “markedly symptomatic” with constant pain and numbness limiting her ability to drive and perform occupational and physical activities. Dr. R.R. further noted that the Veteran exhibited a “noticeable walking limp.” At a VA foot examination in an August 2016 VA foot examination, the examiner noted diagnoses of bilateral pes planus, right hallux valgus, plantar fasciitis and tarsal tunnel syndrome. The Veteran reported bilateral foot pain, right greater than left, pronounced with walking or prolonged standing, as well as numbness and burning at times in her toes. The examiner noted that the Veteran demonstrated fully intact motor strength in both feet and all of her toes, with a normal sensory exam and no swelling. The examiner noted that the Veteran did walk with a mild limp, but stated that her gait was essentially normal. Objective examination was reported to show normal bilateral foot and toe function and sensation. At a January 2018 VA foot examination, the examiner noted diagnoses of bilateral pes planus, right foot hallux valgus, and bilateral plantar fasciitis, as well as bilateral tarsal tunnel syndrome. The Veteran reported sharp, burning and throbbing pain to the bilateral feet, which interfered with standing and locomotion. The examiner noted right foot swelling, and occasional use of a cane and “walking boot” due to foot pain. The examiner opined that right foot tarsal tunnel syndrome symptoms were of “moderate” severity. The Veteran was provided a VA neurological examination in March 2018. The Veteran reported pain in the right foot varying from minimal to pronounced, and more pronounced with cold weather. She also described feelings of numbness and warmth in her feet, more pronounced in the right foot than left. The Veteran reported using shoe inserts but they did not help. The examiner indicated that the Veteran’s tarsal tunnel syndrome was manifested by moderate right lower extremity intermittent pain, mild lower extremity intermittent pain, mild right lower extremity paresthesias/dysesthesias, and mild right lower extremity numbness. Lower extremity muscle strength and reflex testing were normal bilaterally and lower extremity sensory examination was normal. No trophic changes, muscle atrophy, or gait abnormalities were reported. The examiner provided an overall assessment of mild incomplete paralysis of the bilateral posterior tibial nerves. Based on the foregoing, a preponderance of the evidence indicates that the Veteran’s bilateral tarsal tunnel syndrome has been manifested by, at most, moderate incomplete paralysis of the tibial nerve, warranting a 10 percent rating under Diagnostic Code 8525. 38 C.F.R. § 4.124a. There is no question that the Veteran’s disabilities are manifested by sensory symptoms, and while there has been some evidence of non-sensory symptoms the medical evidence clearly preponderates against finding that such symptoms approximate severe incomplete paralysis. While the June 2015 VA orthotics record and letter of Dr. R.R. suggested some motor impairment, the August 2016 VA examiner found fully intact motor strength in both feet and all toes, and opined that the Veteran’s limp was “mild” and her gait was “essentially normal.” Thus, the medical evidence shows that any motor impairment attributable to tarsal tunnel syndrome was mild. The Board acknowledges the Veteran’s assertion that the March 2018 examiner did not look at her feet, asked less than six questions, and that the examination lasted less than 15 minutes. The objective record, however, shows that the March 2018 examination was completely adequate in that it included an extensive discussion of the medical history and current manifestations of bilateral tarsal tunnel syndrome, and was based on an in-person examination and complete review of the record. The Board has considered the medical articles submitted by the Veteran, and acknowledges that medical treatise evidence can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222 (1999). Significantly, the articles submitted by the Veteran were not accompanied by any probative opinion from a medical expert, nor were they specific to the facts of the Veteran’s case. In this regard, the Board does not find any reason to doubt that the Veteran has a neurological disorder of the feet. Rather, the critical issue in a claim for increased rating is whether specific findings necessary to support a higher rating are present (here, severe incomplete paralysis or complete paralysis of all muscles of the sole of the foot). The Board has considered the Veteran’s lay statements, to include her June 2015 Board hearing testimony that her bilateral tarsal tunnel syndrome causes her to limp and prevented her from driving, and that her foot pain was so severe that she requested that her foot be amputated. As well, in July 2018 the Veteran reported that she experienced leg spasms, and had fallen due to weakness of the lower extremities. The Board also acknowledges the lay reports of the Veteran’s friends, family and coworkers that her foot symptoms were productive of significant functional impairment. The degree to which specific lower extremity symptoms are attributable to bilateral tarsal tunnel syndrome as well as the question whether bilateral tarsal tunnel syndrome was manifested by severe incomplete paralysis, or complete paralysis, is, however, a medical determination. Thus, the Board assigns greater probative value to the medical evidence of record which preponderates against finding that bilateral tarsal tunnel was manifested by severe incomplete paralysis, or complete paralysis of all muscles of the sole of the foot. The totality of the clinical evidence preponderates against finding that the Veteran’s bilateral tarsal tunnel syndrome, status-post surgery with release is manifested by severe incomplete paralysis or complete paralysis of all muscles of the sole of the foot. As such, entitlement to ratings in excess of 10 percent is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Loss of use of the right foot The Veteran asserts that her right foot symptoms are so severe as to approximate loss of use of the foot. At her June 2015 Board hearing the Veteran reported that her right foot pain was so severe that she had requested her physician to “cut it off.” As a result, the Board considered the inferred issue of entitlement to special monthly compensation for loss of use of the right foot to be raised in connection with the Veteran’s claim for increased rating. Special monthly compensation is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. See 38 U.S.C. § 1114; 38 C.F.R. § 3.350. Special monthly compensation is payable at the (k) rate for, among other things, anatomical loss or loss of use of one foot as the result of service-connected disability. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). Loss of use of a foot will be held to exist 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. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350 (a)(2), 4.63. Pertaining to her right foot, the Veteran is service-connected for plantar fasciitis with pes planus rated 30 percent disabling, tarsal tunnel syndrome, status-post surgery with release rated 10 percent disabling, residual scars of tarsal tunnel release surgery rated 10 percent disabling, and hallux valgus, rated noncompensable. As outlined above in detail, the objective medical evidence reflects that the appellant’s right foot retained significant function, although limited by symptoms such as pain and numbness. Neither symptoms consistent with anatomical loss of the right foot were demonstrated, nor did any examiner attest to this observation. On the contrary, the September 2014, August 2016, January 2018 and March 2018 VA examiners denied that the Veteran would be equally served by amputation with prosthesis. The August 2016 VA examiner opined that it was less likely than not that the Veteran had loss of use of the right foot such that no effective function remained other than that which would be equally well served by an amputation stump with use of a suitable prosthetic appliance. The examiner reasoned that the Veteran demonstrated fully intact motor strength in both feet and all of her toes, with a normal sensory exam. The examiner stated that although the Veteran expressed pain in her right foot and walked with a mild limp, her gait was essentially normal. The examiner further reported that objective examination showed normal bilateral foot and toe function and sensation. The Board acknowledges the report of the Veteran that her right foot pain was so severe that she requested that the foot be amputated. However, the question whether no effective function remained other than that which would be equally well served by an amputation stump with use of a prosthetic appliance is a medical determination. Thus, the Board attributes greater probative value to the medical evidence of record which preponderates against finding that the Veteran’s service-connected right foot disorders were of such severity as to approximate loss of use of the foot. The totality of the clinical evidence preponderates against finding that the severity of the Veteran’s service-connected disorders approximated loss of use of the right foot. As such, entitlement to special monthly compensation based on loss of use is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert.   Automobile and adaptive equipment The Veteran contends that eligibility for financial assistance for an automobile or adaptive equipment is warranted because her service-connected right foot disorders prevent her from driving. Eligibility for financial assistance in the purchase of an automobile or other conveyance and of basic entitlement to necessary adaptive equipment exists where a Veteran exhibits one of the following as the result of service-connected disability: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes: central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye. 38 C.F.R. § 3.808 (a), (b). In September 2013, VA amended 38 C.F.R. § 3.808 by adding a severe burn injury to the list of eligible disabilities. Effective February 25, 2015, VA again amended the regulation to add amyotrophic lateral sclerosis as a qualifying disability. For adaptive equipment eligibility only, service-connected ankylosis of one or both knees or one or both hips is sufficient to show entitlement. 38 C.F.R. § 3.808 (b)(6). The Veteran is currently service-connected for posttraumatic stress disorder; bilateral plantar fasciitis with pes planus; residual scars of tarsal tunnel release surgery; bilateral tarsal tunnel syndrome, status-post surgery with release; allergic rhinitis; hypertension; uterine fibroids; migraine headaches; and right foot hallux valgus. Thus, the evidence shows that the Veteran’s service-connected disabilities do not involve a loss or permanent loss of use of one or both hands; a permanent impairment of vision of both eyes to the required specified degree; severe burn injury; amyotrophic lateral sclerosis; or ankylosis of one or both knees or of one or both hips. For the reasons detailed above, the evidence does not demonstrate the loss or permanent loss of use of the right foot. With regard to the left foot, both the medical evidence of record and the Veteran’s testimony indicate that left foot symptoms are less severe than those of the right foot, and no medical professional has opined that no effective left foot 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. On the contrary, the September 2014, August 2016, January 2018 and March 2018 VA examiners expressly denied such a finding Therefore, the evidence does not demonstrate loss or permanent loss of use of the left foot. The claim therefore must be denied. Additionally, while the issue of entitlement to service connection for a right knee disorder is referred herein, the Veteran has not testified, and the medical evidence does not otherwise indicate that any right knee disorder is manifested by ankylosis. Therefore, remand of this issue for additional development in connection with the referred claim for a knee disorder is not warranted. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). In making this determination, the Board acknowledges the Veteran’s contentions that her service-connected right foot disorders are manifested by numerous functional impairments, and that she has been involved in traffic accidents which she attributes to her right foot symptoms. However, the question whether no effective function remained other than that which would be equally well served by an amputation is a medical determination. Thus, the Board attributes greater probative value to the medical evidence of record which preponderates against finding that the Veteran’s service-connected right or left foot disorders were of such severity as to approximate loss of use of the foot. The Board reiterates that the standard to establish loss of use for VA purposes is very stringent. That is, loss of use of a foot will be held to exist 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. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350 (a)(2). The totality of the clinical evidence preponderates against finding that the severity of the Veteran’s service-connected disorders approximated loss or loss of use of a hand or foot, permanent impairment of both eyes with central visual acuity of 20/200 or less, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of a knee or hip. As such, eligibility for financial assistance for an automobile or adaptive equipment is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. 5107 (b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Migraine headaches Following the April 2018 supplemental statement of the case, and after the transfer of the case to the Board, additional relevant evidence was submitted by the Veteran. Specifically, the Veteran submitted an August 2018 disability benefits questionnaire completed by her private physician, concerning her migraine headaches. Absent a waiver, this additional relevant evidence must first be considered by the AOJ. 38 C.F.R. § 20.1304 (providing that additional pertinent evidence must be referred to the AOJ for review and preparation of a supplemental statement of the case, unless the right is waived or the benefit sought on appeal may be allowed without such referral); see also 38 U.S.C. § 7105, as amended by Public Law 112-154, section 501 (providing that evidence received with or after any substantive appeal received on or after February 2, 2013, is subject to initial review by the Board).   Individual unemployability Because the remanded issue of entitlement to an increased rating for migraine headaches, as well as the referred issue of entitlement to service connection for a right knee disorder could significantly impact a decision on the issue of entitlement to a total disability rating based on individual unemployability, the issues are inextricably intertwined. A remand of this claim is therefore required. On remand the Veteran should be provided another opportunity to submit the requisite VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2017 to the present. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Send the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and request that she complete and return the form. 3. Adjudicate the issue of entitlement to service connection for a right knee disorder, to include secondary to bilateral plantar fasciitis with pes planus, bilateral tarsal tunnel syndrome, status-post right foot surgery with release, and right hallux valgus. The appellant is advised that the Board will only exercise appellate jurisdiction over this claim if a timely appeal has been perfected. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel