Citation Nr: 18153214 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 10-43 771 DATE: November 27, 2018 ORDER Entitlement to a rating in excess of 10 percent for chronic myositis and myalgia of the right hand (right hand disability) is denied. Entitlement to a rating in excess of 10 percent for chronic myositis and myalgia of the left hand (left hand disability) is denied. Entitlement to a rating in excess of 10 percent prior to September 14, 2017 for bilateral pes planus is denied. FINDINGS OF FACT 1. The Veteran’s right-hand disability is manifest, at worst, by pain, numbness and cold sensitivity. 2. The Veteran’s left-hand disability is manifest, at worst, by pain, numbness and cold sensitivity. 3. The evidence does not show that prior to September 14, 2017, the Veteran’s bilateral pes planus showed objective evidence of marked deformity, pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for the Veteran’s service-connected right-hand disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7, Diagnostic Codes 5201, 5216-5230. 2. The criteria for a disability evaluation in excess of 10 percent for the Veteran’s service-connected left-hand disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7, Diagnostic Codes 5201, 5216-5230. 3. The criteria for a compensable rating for a rating in excess of 10 percent prior to September 14, 2017 for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7, Diagnostic Codes 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was scheduled to present testimony before a Veterans Law Judge in July 2017; however, he failed to report. As the record does not contain any explanation as to why the Veteran failed to report to the hearing, or a request to reschedule, the hearing request is withdrawn. See 38 C.F.R. § 20.704 (d) (2017). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, 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 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 1. Entitlement to a rating in excess of 10 percent for chronic myositis and myalgia of the right hand 2. Entitlement to a rating in excess of 10 percent for chronic myositis and myalgia of the left hand The Veteran contends that his right and left hand disabilities warrant a rating higher than the assigned 10 percent ratings. The right and left hand disabilities have been rated by the RO under Diagnostic Code 5021. Pursuant to Diagnostic Code 5021, the disability is to be rated based on limitation of motion of affected parts, as arthritis. Limitation of motion is governed by DCs 5216-5230. More specific to the case here, limitation of motion of individual digits is governed by DC 5228-52230. During the September 2009 VA examination, the Veteran reported that he had tingling in his hands during cold weather. Examination of both hands showed that there was no deformity, atrophy or wasting of the small muscles of the hands or fingers. Sensory examination did not show any deficits. The tips of the fingers were able to reach the transverse palmar crease without any gap. The examiner determined that myalgia was found, but not myositis. Repetitive use testing showed that there was no limitation of motion, additional increase in painful movement, fatigue, weakness or lack of endurance. At a May 2011 VA examination, the Veteran reported that his left and right hands become sensitive to cold with numbness and tingling. He takes medication for his left hand; however, he said that his right hand does not require medication. Examinations of the hands showed normal range of motion of all digits on both hands. At a July 2014 VA examination, the Veteran reported sensitivity of his hands and fingers to cold weather. He indicated that he had difficulty picking up small items due to weakness and numbness of his third, ring and little fingers on both hands. The VA examiner noted that the Veteran had no history of recurrent frostbite, no changes in the cartilage between the joints, no frostbite arthritis, no sign of infection, no gangrene or interruption of blood flow in the fingers. Pursuant to a July 2017 Board remand, the Veteran underwent another VA examination in September 2017 to evaluate the severity of the Veteran’s bilateral hand disability, to include range of motion findings. Range of motion testing revealed all normal ranges of motion for the right and left hand. Neither hand has a gap between the pad of the thumb and the fingers, or between the finger and proximal transverse crease of the hand on maximal finger flexion. No pain was noted in either hand. Repetitive use testing revealed that there was no additional functional loss or range of motion after three repetitions. The examiner indicated that the left hand had weakened movements due to muscle or peripheral nerves injury. Muscle strength testing of the right hand revealed normal strength (5/5) for the right hand and active movement against some resistance (4/5) for the left hand. There was no muscle atrophy or ankylosis of either hand. No arthritis was found in either hand. The examiner also indicated that there was objective evidence of pain on passive range of motion testing and no objective evidence of pain when the hands were used in non-weight bearing. After reviewing all of the evidence and subjective complaints, the Board finds that the preponderance of the evidence shows that a rating higher than 10 percent is not warranted. Diagnostic codes 5216 to 5227 address ankylosis of the fingers, which is not present here. Higher 20 percent ratings are not warranted for either hand under Diagnostic Code 5228 because there is no gap between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. The Board has also considered whether a higher rating is warranted under Diagnostic Code 7122, as the right and left hand myositis is secondary to cold injury. Although the Veteran has arthralgia or other pain, numbness or cold sensitivity; the evidence does not show that the Veteran tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities such as osteoporosis, subarticular punched out lesions, or osteoarthritis in the affected parts, as required for a higher 20 percent rating. Therefore, a higher 20 percent rating is also not warranted under this code for either hand. Accordingly, the evidence does not show that a disability rating in excess of 10 percent for right and left hand disabilities is warranted during the appellate period. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim must be denied. 3. Entitlement to a rating in excess of 10 percent prior to September 14, 2017 for bilateral pes planus For clarification, this appeal arises from a November 2009 rating decision which granted a temporary total evaluation because of treatment for service-connected bilateral pes planus, effective May 2009 and then a 10 percent rating for bilateral pes planus upon the conclusion of the convalescence period, effective September 2009. Effective September 14, 2017, the Veteran’s service-connected bilateral pes planus is rated as 50 percent disabling pursuant to Diagnostic Code 5276, which is the maximum rating. The Veteran contends that a higher rating was warranted prior to September 14, 2017. For bilateral acquired flatfoot (pes planus), a 10 percent rating is assigned for moderate symptoms of pes planus, to include 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 30 percent rating is assigned for severe pes planus and requires objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A 50 percent rating is assigned for pronounced pes planus and requires marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, and the disability is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, 5276. The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). A review of the evidence shows that prior to September 14, 2017, a rating higher than 10 percent is not warranted for the Veteran’s bilateral pes planus. A December 2015 VA treatment note shows that the Veteran’s bilateral flat feet had pain upon pressure on the posterior plantar aspect on the left heel at the origin of the plantar fascia. An August 2014 VA podiatry treatment record shows that the Veteran’s flat feet had no pain on the inferior heels that day. The physician noted that there were calluses on the big toes and lateral left 5th metatarsal head. X-rays showed inferior heel spurs that were larger on the right foot than the left. An April 2013 VA treatment note shows that the Veteran had pain in the inferior heels with the pain greater in the left than in the right. There were no masses, callus or color changes, and the Veteran denied deformity. A May 2011 VA examination shows that the Veteran’s complained that his pes planus of the right foot was manifest by pain, swelling, heat, redness, stiffness, use of inserts with poor efficacy. There was no redness, fatiguability, weakness, or lack of endurance. He complained that the symptoms of the left foot were the same, except that there was redness of the right foot. The VA examiner noted that in both feet, there was no painful motion, swelling, instability, weakness, or abnormal weigh bearing; however, there was tenderness. During the September 2017 VA examination, the VA examiner noted that the Veteran’s bilateral pes planus was manifest by extreme tenderness of plantar surfaces of the feet; marked pronation; characteristic callosites; indication of swelling on use; and pain on manipulation and use of the feet. The examiner further noted that the symptoms were not improved by orthopedic shoe or appliance. The evidence does not show that a rating higher than 10 percent was warranted prior to September 14, 2017. The medical evidence, to include VA treatments and VA examination show that the Veteran did not have marked deformity, pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities as required by a higher 30 percent rating. The Board considered whether a higher rating is warranted under Diagnostic Code 5284, which evaluates “other foot injuries.” However, the United States Court of Appeals for Veterans Claims (Court) has specifically addressed this question, finding that in cases involving evaluation of diagnosed pes planus, the appropriate Diagnostic Code is 5276 governing the evaluation of pes planus, and that to evaluate service-connected pes planus disabilities under Diagnostic Code 5284 constitutes impermissible rating by analogy. In essence, the Court determined that Diagnostic Code 5284 is not applicable to claims involving the evaluation of pes planus disabilities. Copeland v. McDonald, 27 Vet. App. 333, 338 (2017) (held that where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy). In light of Copeland, the Board finds that Diagnostic Code 5284, governing foot injuries, other, is not applicable in the present case because the Veteran’s service-connected condition, pes planus, is one of the foot conditions specifically listed in 38 C.F.R. § 4.71a, and that to rate his pes planus under Diagnostic Code 5284 would constitute an impermissible rating by analogy. The Board has also considered whether a compensable rating is warranted under 38 C.F.R. § 4.59 for painful motion. The Board notes that 38 C.F.R. § 4.59 specifically provides that, “[i]t is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for a joint.” The Board acknowledges the Veteran’s reports of pain and swelling. However, the medical evidence, to include the May 2011 VA examination report showed no objective evidence of painful motion prior to September 14, 2017. Therefore, prior to September 14, 2017, a rating higher than 10 percent is not warranted under 38 C.F.R. § 4.59. The Board acknowledges the Veteran’s assertions that his bilateral pes planus was more severe than evaluated prior to September 14, 2017, to include his reports of pain. The Veteran is competent to report these symptoms and his reports are found credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the lay nor medical evidence demonstrates that the criteria for higher evaluations have been met. The more probative evidence is that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned noncompensable rating prior to September 14, 2017 is warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel