Citation Nr: 18148905 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-40 502 DATE: November 8, 2018 ORDER 1. Entitlement to a rating in excess of 30 percent for bilateral pes cavus and plantar fasciitis, status-post hammer toe surgery, is denied. 2. Entitlement to an initial rating in excess of 10 percent for superficial peroneal neuropathy of the right lower extremity, associated with bilateral pes cavus and plantar fasciitis (neuropathy of the right foot), from June 20, 2012 to September 18, 2013 and from March 19, 2015, is denied. 3. Entitlement to an initial rating in excess of 20 percent for neuropathy of the right foot, from September 19, 2013 to March 18, 2015, is denied. 4. Entitlement to an initial rating in excess of 10 percent for superficial peroneal neuropathy of the left lower extremity, associated with bilateral pes cavus and plantar fasciitis (neuropathy of the left foot), from June 20, 2012 to September 18, 2013 and from March 19, 2015, is denied. 5. Entitlement to an initial rating in excess of 20 percent for neuropathy of the left foot, from September 19, 2013 to March 18, 2015, is denied FINDINGS OF FACT 1. Bilateral pes cavus and plantar fasciitis does not rise to the level of marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformities. 2. Neuropathy of the right foot, from June 20, 2012 to September 18, 2013 and from March 19, 2015, does not rise to the level of severe, incomplete paralysis of the musculocutaneous nerve; severe, incomplete paralysis of the anterior tibial nerve; or moderate, incomplete paralysis of the popliteal nerve. 3. Neuropathy of the right foot, from September 18, 2013 to March 18, 2015, does not rise to the level of complete paralysis with eversion of the foot weakened. 4. Neuropathy of the left foot, from June 20, 2012 to September 18, 2013 and from March 19, 2015, does not rise to the level of severe, incomplete paralysis of the musculocutaneous nerve; severe, incomplete paralysis of the anterior tibial nerve; or moderate, incomplete paralysis of the popliteal nerve. 5. Neuropathy of the left foot, from September 18, 2013 to March 18, 2015, does not rise to the level of complete paralysis with eversion of the foot weakened. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for bilateral pes cavus and plantar fasciitis, status-post hammer toe surgery, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 5278 (2017). 2. The criteria for entitlement to an initial rating in excess of 10 percent for neuropathy of the right foot, from June 20, 2012 to September 18, 2013 and from March 19, 2015, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes 8522 (2017). 3. The criteria for entitlement to an initial rating in excess of 20 percent for neuropathy of the right foot from September 19, 2013 to March 18, 2015 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes 8522 (2017). 4. The criteria for entitlement to an initial rating in excess of 10 percent for neuropathy of the left foot, from June 20, 2012 to September 18, 2013 and from March 19, 2015, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes 8522 (2017). 5. The criteria for entitlement to an initial rating in excess of 20 percent for neuropathy of the left foot, from September 19, 2013 to March 18, 2015 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes 8522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1976 to November 1977. 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. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where 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 appeal period from the initial assignment of the disability rating to the present time. While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established an increase in the disability rating is at issue, it is the present level of disability that is the primary concern. The U.S. Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. 1. Entitlement to a rating in excess of 30 percent for bilateral pes cavus and plantar fasciitis, status-post hammer toe surgery At a March 2015 VA examination, the Veteran was diagnosed with bilateral hammer toes, acquired pes cavus (claw foot), and plantar fasciitis, with calcaneal spur in both feet. The Veteran had surgery on his hammer toes in 1993. At this examination, the Veteran reported that he had difficulty walking and had to rest often due to cramping in his feet. The examiner noted that the Veteran used a walker. The VA examiner noted the Veteran exhibited objective evidence of pain on movement, but there was no swelling, calluses, extreme tenderness in the plantar surfaces, decreased longitudinal arch height, objective evidence of marked deformity, marked pronation, lower extremity deformity causing alteration of the weight-bearing line, inward bowing of the Achilles’ tendon, or marked inward displacement and severe spasm of the Achilles’ tendon. Additionally, the weight-bearing line did not fall over or medial to the great toe. The examiner also noted hammer toe in all toes except the big toe in both feet, definite tenderness under the metatarsal heads due to pes cavus, and shortened plantar fascia due to pes cavus. The Veteran was provided another VA examination in February 2017. He reported that the pain in his feet had elevated, and he was unable to walk as far, noting pain in the bottom of his feet after standing for 8 hours/day or running over two miles. The Veteran reported using a walker on a regular basis. The examiner noted that the Veteran had hammer toe on the great toe, but it was non-tender with restricted muscle strength. The Veteran reported that all of his toes were painful on motion with aggravation of a tingly, electric shock. The examiner noted that bilateral toes two through five had pain with passive or active range of motion with less movement than normal, pain on movement, pain on weight-bearing, swelling, disturbance of locomotion, and interference with standing. The examiner noted that the Veteran’s toes were tending to dorsiflexion due to pes cavus, and he had shortened plantar fascia due to pes cavus. The examiner noted that the Veteran’s pain, weakness, fatigability, and incoordination significantly limit his functional ability during flare-ups or with repeated use of the Veteran’s bilateral feet over time. The Veteran’s bilateral foot disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5278, which provides rating criteria for acquired claw foot (or pes cavus) conditions. Under Diagnostic Code 5278, a non-compensable disability rating is assigned for slight claw foot, occurring either unilaterally or bilaterally. A 10 percent disability rating is assigned for unilateral or bilateral signs and symptoms of the great toe in a dorsiflexed position, some limitation of ankle dorsiflexion, and definite tenderness under the metatarsal heads. Signs and symptoms including all toes tending to a dorsiflexed position, a limitation of ankle dorsiflexion to a right angle (zero degrees), shortened plantar fascia, and marked tenderness under the metatarsal heads are assigned a 20 percent disability if they occur unilaterally, and a 30 percent disability rating if they occur bilaterally. Signs and symptoms including marked contraction of the plantar fascia with a dropped forefoot, a hammer toe deformity in all toes, very painful callosities, and marked varus deformity are assigned a 30 percent disability rating if they occur unilaterally, and a 50 percent disability rating if they occur bilaterally. A 50 percent disability rating is the maximum schedular rating available under Diagnostic Code 5278. 38 C.F.R. § 4.71a, Diagnostic Code 5278. The preponderance of the evidence is against a finding that the Veteran’s bilateral pes cavus warrants entitlement to a rating in excess of 30 percent under Diagnostic Code 5278. The Veteran’s bilateral foot disorder does not exhibit marked contraction of plantar fascia with dropped forefoot, and the VA examiners do not document that all the Veteran’s toes are hammer toes. Additionally, the preponderance of the evidence is against a finding that the Veteran has very painful callosities on either foot or a marked varus deformity due to pes cavus. The Board acknowledges that the Veteran also has a diagnosis of hammer toes. However, a rating in excess of 30 percent is not available under Diagnostic Code 5282, which provides criteria for rating hammer toes, and a separate rating would not be warranted, as Diagnostic Code 5278 contemplates hammer toes, and assigning a separate rating under Diagnostic Code 5282 would be pyramiding. The Veteran has reported functional impairments such as pain, weakness, fatigability, and incoordination; however, such impairments are considered as part of the schedular rating criteria. The Veteran's reported use of a walker on a regular basis for locomotion, which is indicative of the severity of the symptoms such as pain, weakness, and fatigue, provides additional evidence to assist in determining the additional functional impairment caused by the bilateral foot disability, as allowed and instructed by DeLuca. Accordingly, the Board finds that the schedular rating criteria are adequate to rate the symptomatology and functional impairment associated with the disability on appeal. 2. - 5. Entitlement to initial ratings in excess of 10 percent for neuropathy of the right and left feet from June 20, 2012 to September 18, 2013 and from March 19, 2015, and initial ratings in excess of 20 percent for neuropathy of the right and left feet from September 19, 2013 to March 18, 2015. The Veteran is currently rated under Diagnostic Code 8522, which provides rating criteria for paralysis of the musculocutaneous nerve. Under Diagnostic Code 8522, a 10 percent disability evaluation is warranted for moderate, incomplete paralysis of the superficial peroneal nerve. A 20 percent evaluation is assigned for severe, incomplete paralysis, and a 30 percent disability rating requires complete paralysis with eversion of the foot weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8522. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. (a) A rating in excess of 10 percent from June 20, 2012 to September 18, 2013 The Veteran’s VA treatment records show that the Veteran was seen in June and August 2012 for symptoms related to neuropathy of the Veteran’s right and left feet. These records show the Veteran reported numbness in both feet up to his knees that will sometimes inhibited his ability to walk for a couple of hours. VA treatment records from July 2013 show the Veteran reported that his feet would get warm “and then feel[] like a bolt of electricity [went] through his toes” followed by numbness when walking. The Veteran reported ambulating with the assistance of a cane. He also reported cramping overnight that is not relieved unless he gets up out of bed. The Board finds the Veteran’s VA treatment records, though they document numbness and symptoms of incomplete paralysis, do not show that the symptomatology rises to the level of severe, incomplete paralysis, and as such, a rating in excess of 10 percent prior to September 18, 2013 is not warranted. The Board acknowledges that in September 2013 the Veteran reported worsening symptoms of numbness, as noted below, up to one year prior to his September 2013 appointment. However, as there is no objective evidence of increased paralysis prior to September 2013, the Board finds the Veteran’s medical treatment records are more probative, and as Veteran’s medical treatment records do not show symptoms rising to the level of severe, incomplete paralysis prior to September 19, 2013, a rating in excess of 10 percent is not warranted. (b) A rating in excess of 20 percent from September 19, 2013 to March 18, 2015. In September 2013, the Veteran reported to VA treatment providers that he was experiencing numbness in his toes and in the balls of his feet when walking. The Veteran reported that he would fall as a result of the numbness. The Veteran also reported he was unable to walk around the block without his foot becoming “totally numb.” The Veteran reported that immediately prior to going numb, his foot “goes warm.” He reported the right foot was worse than the left and all of his symptoms are worse if he is barefoot. Finally, the Veteran reported cramping in his feet if he did not keep them warm. The treatment provider measured motor strength in the lower extremities, documenting 1/5 of the bilateral extensor hall longus. The Veteran did not perform plantar-flexion movements due to a fear of falling, and the examiner documented that the Veteran’s light touch sensation was intact and symmetric, though decreased on the distal bottom of the feet and toes. The Veteran’s reflexes were not reported in the plantar area, were absent at the Achilles, and normal reflexes were documented in the patellar area. The VA treatment provider reported that “[t]here is nerve conduction evidence to support a predominantly axonal peripheral neuropathy, but the distribution of weakness and electrodiagnostic findings are atypical for length-dependent peripheral neuropathy . . . .” The Board acknowledges that the symptoms of the Veteran’s neuropathy of the right and left feet had increased, as reflected by the increase to a 20 percent rating. However, the preponderance of the evidence does not substantiate that the Veteran was experiencing complete paralysis with eversion of foot weakened in either his left or right foot. As such, a 30 percent rating for neuropathy of the right and left feet is not warranted. (c) A rating in excess of 10 percent from March 19, 2015 At a March 2015 VA examination, the examiner diagnosed the Veteran with peripheral neuropathy in both feet. The Veteran reported that this began as numbness and tingling in both feet, but he stated his symptoms had been getting progressively worse. The Veteran reported he is now unable to walk long distances. He also reported that he regularly used a walker. The examiner reported that the Veteran had moderate paresthesias and/or dysesthesias and moderate numbness in both feet. The examiner also noted a decreased sensation upon light touch in the Veteran’s feet and toes. The examiner reported that the Veteran’s musculocutaneous nerve exhibited moderate, incomplete paralysis in both feet. The examiner also noted that the Veteran had decreased reflexes in his feet and toes. The Veteran’s reflexes were noted to be normal. The examiner opined that the Veteran had moderate, incomplete paralysis in the musculocutaneous nerve. The Veteran was provided another VA examination in February 2017. The Veteran reported that he was no longer able to walk over 200 feet without resting, and he regularly used a walker. The Veteran also reported he had started to fall due to numbness in his feet. The examiner noted that the Veteran exhibited moderate constant pain with intermittent severe pain in the lower extremities with severe paresthesias or dysesthesias and severe numbness. No muscle atrophy was noted, though the examiner noted decreased reflexes in the Veteran’s feet and toes. Muscle strength testing was normal in the Veteran’s lower extremities with the exception of the Veteran’s ankles, which displayed active movement against some resistance on plantar flexion and dorsiflexion. The Veteran’s reflexes were also normal, other than the ankles, which reflexes were absent. The examiner went on to conclude the Veteran had mild, incomplete paralysis in the external popliteal nerve, musculocutaneous nerve, and anterior tibial nerve. As noted above, the VA examiner at the March 2015 VA examination found that the Veteran’s paralysis of the musculocutaneous nerve was moderate in nature, while the VA examiner at the February 2017 VA examination found that the Veteran had mild, incomplete paralysis. The Board finds that the Veteran’s symptomatology of incomplete paralysis is no more than moderate in degree. The Veteran, despite reporting increased symptoms in February 2017, after a clinical examination, was not noted to have worsening neuropathy by the VA examiner. The Veteran reported he was unable to walk more than 200 feet without a walker at this examination. However, at the examination for his feet, conducted on the same day, the Veteran noted that he had pain after standing for eight hours or running over two miles, which suggests more functional ability. The Board finds the clinical examination conducted by VA examiners in March 2015 and February 2017 to be more probative of the Veteran’s level of symptomatology, and finds that the preponderance of the evidence is against a finding that the bilateral neuropathy disability more closely approximates severe, incomplete paralysis. As the Veteran’s paralysis does not rise to the level of severe, incomplete paralysis, a rating in excess of 10 percent under Diagnostic Code 8522 is not warranted. At the February 2017 VA examination, the examiner documented that the Veteran had mild incomplete paralysis of the anterior tibial nerve (also called the deep peroneal nerve), which is rated under Diagnostic Code 8523. Under Diagnostic Code 8523, a 0 percent disability rating is warranted for mild, incomplete paralysis, a 10 percent disability evaluation is warranted for moderate, incomplete paralysis, and a 20 percent disability evaluation requires severe, incomplete paralysis. A 30 percent disability rating requires complete paralysis, with dorsal flexion of the foot lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8523. Mild, incomplete paralysis of the anterior tibial nerve warrants a noncompensable rating, and thus the current 10 percent rating under Diagnostic Code 8522 is a higher rating than the Veteran would receive under Diagnostic Code 8523. Thus, this Diagnostic Code would not entitle the Veteran to a higher rating. At the February 2017 VA examination, the examiner also noted that the Veteran had mild, incomplete paralysis in the external popliteal nerve, which is rated under Diagnostic Code 8521. Diagnostic Code 8521 provides that mild, incomplete paralysis is rated at 10 percent disabling; moderate, incomplete paralysis is rated as 20 percent disabling, and severe, incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the external popliteal nerve, foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; covers entire dorsum of foot and toes, is rated as 40 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8521. The application of this Diagnostic Code would not establish entitlement to a higher rating, as mild, incomplete paralysis warrants a 10 percent rating. Additionally, a separate, 10 percent rating cannot be assigned under Diagnostic Code 8521, as both the external popliteal nerve (common peroneal) and the musculocutaneous nerve (superficial peroneal) address the foot, which would constitute pyramiding. As the Veteran’s paralysis does not rise to the level of moderate, incomplete paralysis, a rating in excess of 10 percent is not warranted under Diagnostic Code 8521. Additionally, the Board notes that a separate compensable rating under Diagnostic Codes 8521 or 8523 is not warranted as it would constitute pyramiding in violation of 38 C.F.R. § 4.14. For all the above reasons, the Board finds that the preponderance of the evidence is against entitlement to initial ratings in excess of 10 percent from June 20, 2012 to September 18, 2013 and from March 19, 2015 and initial ratings in excess of 20 percent from September 29, 2013 to March 18, 2015 for superficial peroneal neuropathy of the left foot and superficial peroneal neuropathy of the right foot, and the claims for higher, initial ratings are denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel