Citation Nr: 1807274	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-24 992A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES


1. Entitlement to a compensable evaluation for the period prior to July 10, 2015 for service-connected headaches associated with a cervical spine condition.

2. Entitlement to a compensable evaluation for the period prior to July 10, 2015 for service-connected right elbow degenerative joint disease.

3. Entitlement to a compensable evaluation for the period prior to July 10, 2015 for service-connected left elbow degenerative joint disease.

4. Entitlement to a compensable evaluation for the period prior to July 10, 2015 for service-connected bilateral plantar fasciitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

G.C., Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 2002 to May 2013 in the United States Air Force with honorable service.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Portland, Oregon.

In October 2017, the Veteran was afforded a Travel Board hearing before the undersigned. A copy of the hearing transcript has been associated with the record.

The Board notes that the Veteran, through his representative, clarified at the hearing that only the four issues noted above are being appealed, and as such, only those issues will be addressed herein. 


FINDINGS OF FACT

1. Prior to July 10, 2015, the pertinent medical evidence reflects that the Veteran's headaches were not characterized by prostrating attacks occurring on an average once every two months over the last several months.

2. The Veteran's left and right elbow disabilities were manifested at most, by x-ray evidence of mild degenerative arthritis with no evidence of limitation of motion or incapacitating exacerbations for the period prior to July 10, 2015.

3. Prior to July 10, 2015, the Veteran's bilateral plantar fasciitis manifested with no more than mild symptoms.


CONCLUSIONS OF LAW

1. The criteria for a compensable rating for headaches for the period prior to July 10, 2015 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017).

2. The criteria for a single 10 percent disability rating for a bilateral elbow disability were met for the period prior to July 10, 2015. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5003 (2017).

3. The criteria for an initial compensable evaluation for bilateral plantar fasciitis for the period prior to July 10, 2015 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1).

There is no indication in this record of a failure to notify. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. §5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)).

The Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issues on appeal.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded VA medical examinations in December 2013 and July 2015. Based on the examinations and the records, the VA medical examiners were able to provide adequate opinions. Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied.

In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran.

Increased Rating - Laws and Regulations

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When there is a question as to which of two evaluations should 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.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3.

Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999).

Increased Evaluation for Headaches Prior to July 10, 2015

The Veteran's headaches are rated under Diagnostic Code 8100, covering migraine headaches. Under Diagnostic Code 8100, a noncompensable rating is warranted for headaches with characteristic prostrating attacks averaging less than one in two months over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 10 percent rating is warranted for headaches with prostrating attacks averaging one in two months over the last several months. Id. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id.

The Veteran's private treatment records reflect that in June 2013, the Veteran went to the emergency department of a hospital with complaints of a headache accompanied with nausea, dizziness and photophobia. The Veteran reported having had a history of migraines typically with nausea and photophobia, but that this particular headache felt different. He reported having trouble walking and with balance since the headache started. Nausea, photophobia, dizziness and tingling were found on evaluation. The Veteran was diagnosed with a headache and discharged in a stable condition after a CT scan was negative. Indeed, he was noted to be active, alert and stable.  

The Veteran was afforded a VA examination in December 2013. The Veteran reported that since he fell in service, injuring his neck, he has a sharp stabbing pain which radiates to his head and experiences daily aches. He further stated that the worst headache he experienced was in July 2013, when he went to the ER, but a CT scan came back normal. The examiner noted that the Veteran reported daily headaches which last for hours, but less than one day. The Veteran reported treating his headaches with ibuprofen and Norco. The examiner further noted that these headaches were not prostrating, and that there is no interference with the Veteran's ability to work. The examiner opined that the Veteran's headache is related to his cervicalgia and is responsive to Norco and the other medications he takes.

VA treatment records generally reflect complaints of or ongoing treatment for headaches. From May 2014 to June 2015, records note the Veteran's reports of severe headaches. For instance, in a June 2014 treatment note, the Veteran reported having daily headaches and a history of occasional severe headaches. Associated symptoms were noted as photophobia and nausea. The doctor recommended that the Veteran keep a headache diary to better understand patterns and medication use.

During the aforementioned time frame, while severe headaches and chronic headache disorder were noted as part of the Veteran's problem list, treatment for his headaches was sporadic. Furthermore, a June 2015 note shows that the Veteran last worked in January 2015. In September 2014, the Veteran reported his hours at work decreased to about 45 a week from 50 a week, citing his posttraumatic stress disorder.

The claims file also contains records from the Social Security Administration (SSA), to which the Veteran applied for disability benefits due in part to his headaches. In an April 2015 determination, the SSA found that the Veteran was not disabled. Specifically, the SSA examiner stated that while the Veteran has some limitations in the performance of certain work activities, these limitations do not prevent the Veteran from performing past relevant work. This determination was based on a review of the Veteran's medical record as well as the Veteran's statements. 
The Board notes that the Veteran reported having had headaches in service and taking Naproxen for his symptoms. However, the medical evaluation also shows that in November 2014, the Veteran was diagnosed with sinusitis, which was noted to cause pain and pressure in the head.

In October 2017, the Veteran was afforded a hearing before the undersigned, and testified as to his headaches. The Veteran testified that he has headaches almost every day. He conveyed that he had headaches in service, but assumed it was a 24 hour flu, until doctors told him that bulging discs in his neck were causing the headaches. He further testified that when 2015 came, he had more headaches, and roughly three days a month, he could not get out of bed. 

Based on the lay and medical evidence of record, the Board finds that a compensable rating for the Veteran's headaches is not warranted for the period prior to July 10, 2015. The Veteran has been assigned a noncompensable evaluation for his headaches, which contemplates headaches characterized by symptomatology other than prostrating attacks occurring with a frequency of at least once in two months during the preceding several months for the period prior to July 10, 2015. In order to warrant a higher evaluation, the headaches must be of a severity comparable to that of headaches characterized by prostrating attacks occurring once in two months during the prior several months. 38 C.F.R. § 4.7.

While the Board recognizes that medical records prior to July 2015 characterize the Veteran's headaches as severe and chronic, the frequency of the headaches are not the only criteria to be considered. Indeed, the medical records do not show that the Veteran's headaches are characterized by prostrating attacks. The July 2013 examiner specifically noted that the Veteran's headaches were not prostrating and that they did not impact his ability to work. VA treatment records, while documenting on-going treatment, are completely silent for any notations or complaints of prostrating or incapacitating headaches of any frequency.

The Board also recognizes that the Veteran had one visit to the emergency room for a headache. However, A CT scan of his head was negative and he was discharged in a stable condition. 

While the Board recognizes that the Veteran has reported that he experiences frequent headaches, endorsing daily headaches during his October 2017 testimony, frequency is not the only factor contemplated by the rating criteria. Instead, a compensable rating for headaches requires that the disability be, with some frequency, prostrating or incapacitating. Despite the frequency of the Veteran's headaches, as well as the other symptoms occasionally noted in the treatment records, there is no evidence that the headaches, as manifested prior to July 10, 2015, caused prostration or incapacitation at least once every two months. Without any evidence of prostrating or incapacitating episodes, the Board finds that the Veteran's overall disability picture does not more nearly approximate the level of severity contemplated by a compensable rating for headaches for the period prior to July 10, 2015. 38 C.F.R. § 4.7, 4.124a, Diagnostic Code 8100.

All potentially applicable diagnostic codes have been considered, and there is no basis to assign a compensable evaluation for the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). As the preponderance of the evidence is against a compensable rating for the Veteran's headaches for the period prior to July 10, 2015, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

Increased Evaluation for Left and Right Elbows Prior to July 10, 2015

The Veteran's service-connected left and right elbow disabilities have been rated as noncompensable prior to July 10, 2015, pursuant to Diagnostic Codes (DCs) 5010-5206.

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2017).

Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned where x-ray evidence shows involvement of two or more major joints or 2 or more minor joint groups. Where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent evaluation is assigned. Note (1) to Diagnostic Code 5003 states that the 20 and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Id.

Under DC 5206, limitation of flexion of the forearm to 110 degrees warrants a non-compensable rating, limitation to 100 degrees warrants a 10 percent rating, limitation to 90 degrees warrants a 20 percent rating, limitation to 70 degrees warrants a 30 percent rating, limitation to 55 degrees warrants a 40 percent rating, and limitation to 45 degrees warrants a maximum 50 percent disabling. These percentages apply to both major and minor arms. 38 C.F.R. § 4.71a, DC 5206.

Under DC 5207, limitation of extension of the forearm to 45 degrees or 60 degrees warrants a 10 percent rating, limitation to 75 degrees warrants a 20 percent rating, limitation to 90 degrees warrants a 30 percent rating, limitation to 100 degrees warrants a 40 percent rating, and limitation to 110 degrees warrants a maximum 50 percent disabling. These percentages apply to both major and minor arms. 38 C.F.R. § 4.71a, DC 5207.

Under DC 5208, when forearm flexion is limited to 100 degrees and extension is limited to 45 degrees, a 20 percent evaluation is assigned. These percentages apply to both major and minor arms. 38 C.F.R. § 4.71a, DC 5208.

In November 2007, the Veteran's elbows were x-rayed. The Veteran reported right elbow pain, worse with supination, which started after blocking another person during flag football. No fracture or dislocation was found. However, a slight degenerative change with slight lipping along the coronoid process was noted.

In December 2013, the Veteran was afforded a VA examination to assess the nature and severity of his bilateral elbow disability. The examiner indicated that the entire claims file was reviewed. The Veteran's diagnosis was confirmed as degenerative joint disease of the bilateral elbows, and the date of diagnosis was noted as 2013. The Veteran reported he had been told he has arthritis in both elbows, and that he has flare-ups with decreased range of motion. Range of motion testing showed flexion of 145 degrees or greater bilaterally with no objective evidence of painful motion. No limitation of extension was noted, nor was any additional limitation in range of motion following repetitive use.  No pain on palpation of the joints was reported, and muscle strength was rated as 5/5 bilaterally on both flexion and extension. The examiner did note that arthritis was shown in imaging studies. However, the Veteran's bilateral elbow condition was found to be mild in its severity and intermittent, as there were no objective findings on examination. Furthermore, the degenerative changes shown on x-rays were deemed very mild. The examiner finally opined that during flare ups, he would expect the Veteran to have 10 degrees of loss of range of motion in all planes, mild weakness, mild fatigability and mild incoordination. Such limitation of motion is noncompensable under DCs 5206, 5207 and 5208.

In an April 2014 primary care note, the Veteran underwent a physical joint exam. Pertinently, the attending physician noted that there was no evidence of synovitis in the elbows.

A review of the Veteran's VA medical records since December 2013 shows that the Veteran has consistently complained of pain in his bilateral elbows.

At his October 2017 hearing, the Veteran testified that he has been in pain every day with regard to both his elbows, and that he failed to mention that during his examination as he was on pain medication. He also confirmed that he was found to have arthritis in both elbows, and that he has had trouble picking up his kids.

While the Board is sympathetic to the Veteran's reports of pain, objective testing failed to show that the Veteran's bilateral elbow limitation of motion warranted assignment of compensable evaluations under DCs 5206, 5207, and 5208 for the period prior to July 10, 2015. 

The Veteran has consistently reported pain in his elbows. The Board finds the Veteran's statements in this regard credible. Additionally, x-rays conducted in 2013 show evidence of early arthritis in the bilateral elbows. However, the Board reiterates that lay reports of painful motion without objective limitation of motion do not warrant compensable evaluations under the applicable diagnostic codes. Here, there is simply no evidence of record that the Veteran's limitation of motion of the elbows was compensable, even during flare-ups, at any point prior to July 10, 2015. Further, separate 10 percent ratings for each elbow are not warranted under Diagnostic Code 5003, which requires objective confirmation of noncompensable levels of limitation of motion such as swelling, muscle spasm, or evidence of painful motion. As noted above, such is not shown here.

However, the Board is able to assign a single 10 percent rating under DC 5003 for arthritis of the elbows, as x-rays have shown evidence of early arthritis. See 38 C.F.R. § 4.45 (f); see also 38 C.F.R. § 4.71a, DC 5003 (providing, in relevant part, that a 10 percent rating is warranted for two major joints shown by x-ray to have arthritis). To that extent, the Veteran's claim is granted. See 38 U.S.C. § 5107 (a); 38 C.F.R. §§ 3.102, 4.3.

In sum, after review of the evidence of record, the evidence shows that a 10 percent rating is warranted for his bilateral elbow disability for the period prior to July 10, 2015, but not higher, since the award of service connection. See Fenderson, 12 Vet. App. at 126-127 (1999). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against an even higher initial rating, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56.

Increased Evaluation for Bilateral Plantar Fasciitis Prior to July 10, 2015.

Service connection for bilateral plantar fasciitis was granted by the December 2013 rating decision on appeal, and an initial noncompensable evaluation was assigned. The Veteran asserts his service-connected plantar fasciitis warrants a compensable evaluation for the period prior to July 10, 2015.

Plantar fasciitis has been evaluated under Diagnostic Code 5276, for acquired flat foot. 38 C.F.R. § 4.71 (2017). Under Diagnostic Code 5276, mild flatfoot with symptoms relieved by built-up shoe or arch support is rated noncompensable. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, and pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the Achilles tendon on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. Again, because the analogy is imprecise, the primary question is whether the plantar fasciitis causes moderate, severe, or pronounced disability.

In April 2012, the Veteran's VA treatment record shows that he had x-rays of both feet taken. Pertinently, the x-rays showed that the Veteran's feet appear to be intact.

The Veteran was afforded a VA examination in December 2013. The examination is shown to have been based on a review of the entire claims file. The Veteran's diagnosis was confirmed as bilateral plantar fasciitis, resolved. The Veteran reported pain along the plantar aspects of both feet just distal to calcaneous, which has resolved since the wearing of orthotics. On evaluation, the Veteran did not have pain on use of the feet or on manipulation of the feet. There was no indication of swelling on use, no characteristic calluses, and no extreme tenderness was shown. Imaging studies were conducted, and reflect no degenerative or traumatic arthritis. All other physical testing was negative. The examiner indicated that the Veteran's bilateral foot condition does not impact his ability to work. In fact, the examiner stated that the bilateral foot condition has resolved as there are no objective findings on examination, and zero impact on his usual daily and occupational activities. The examiner further noted that he would not expect any additional degrees of loss of range of motion, weakness, fatigability, or incoordination during painful flare up episodes, as the Veteran does not have painful flare up episodes. 

In May 2015, the Veteran reported to a VA primary care provider that he had pain in his feet. The Veteran's bilateral foot x-rays of April 2012 were reviewed, and both feet were essentially unremarkable.

In June 2015, the Veteran was deemed on physical examination to be able to heel and toe walk and squat without difficulty, though he reported his walking ability as 3/10.

In his September 2015 VA Form 9, the Veteran stated that he believes the rating for his bilateral plantar fasciitis, which was evaluated as noncompensable prior to July 10, 2015, and as 50 percent disabling thereafter, should reflect the same disability rating of 50 percent throughout the entire rating period. Specifically, the Veteran argues that his bilateral foot condition has not changed since the original filing of his foot disability claim.

In July 2015, the Veteran was afforded a VA examination. The examination is shown to have been based on a review of the entire claims file. The diagnosis was confirmed as bilateral plantar fasciitis. The Veteran reported his plantar fasciitis comes and goes and is sore and stiff daily with arch pain. He reported treating his condition with over the counter insoles. The Veteran reported that he had pain on examination, and specifically reported tender arches with pain in the morning and evening. He also reported flare ups which include decreased standing due to pain. The Veteran did not report any functional loss due to his foot condition. The examiner observed that the Veteran had bilateral pain on use, bilateral pain on manipulation, but no swelling, callouses, marked deformity, pronation, "inward" bowing of the Achilles tendon, or marked inward displacement. The examiner did not review or order diagnostic testing. He opined that the Veteran's foot condition is stable, does not affect activities of daily living. The examiner further stated that flare ups are consistent with physical use, not with a systemic disease.

In October 2017, the Veteran was afforded a hearing before the undersigned. The Veteran testified that he had his bilateral foot issue for a long time. He further stated that he told the 2013 VA examiner that his insoles provided only very minimal relief.  Pertinently, the Veteran testified that his feet may have gotten worse since 2015.

Upon review of the evidence, the Board finds that an initial compensable rating for bilateral plantar fasciitis is not warranted prior to July 10, 2015.

At his December 2013 VA examination, the Veteran did not have any flare-ups, and a physical examination showed that his bilateral foot condition was resolved. Specifically, the examiner indicated that there were no objective findings and zero impact on his usual daily and occupational activities. The VA treatment notes of record are almost silent with regard to the Veteran's feet. The only complaints of record show reports of pain in 2015.  The Board takes note of the Veteran's testimony that he conveyed that his orthotics only provided very minimal relief. However, the Board finds that the 2013 examination is more probative than the Veteran's statements as it was based on a physical examination and testing. 

The July 2015 VA examiner noted bilateral pain on use and manipulation, but no swelling, callouses, marked deformity, pronation, "inward" bowing of the Achilles tendon, and marked inward displacement. It was based on the 2015 VA examination that the Veteran's disability rating was increased to 50 percent from July 10, 2015. Indeed, the Board notes that there is scant medical evidence of complaints or treatment for a foot condition between 2013 and 2015. 

In fact, the Board finds persuasive the Veteran's own statements that his condition has worsened since 2015. See 2017 hearing. Furthermore, the 2015 VA examination reflects that the Veteran's condition did worsen since the 2013 examination, as new symptoms including swelling, not previously identified in the medical record, were noted. That worsening was recognized by the assignment of the 50 percent rating effective July 10, 2015.

The Board reiterates that the most probative evidence of record for the period prior to July 10, 2015, is the December 2013 VA examination of record, as it is based on a review of the claims file, a physical examination and contains findings supported by an adequate rationale. Indeed, no objective findings are of note.

The Board has considered whether a higher rating is warranted under any other code or a separate rating for either foot and finds that the medical evidence of record does not reflect weak foot (DC 5277), pes cavus (DC 5278), Morton's disease (DC 5279), hallux valgus (DC 5280), hallux rigidus (DC 5281), hammer toes (DC 5282), or malunion or nonunion of the tarsal or metatarsal bones (DC 5283). Thus, evaluation under these rating codes is not warranted. Further, a higher rating is not warranted under DC 5284, governing other foot injuries, as that diagnostic code requires at least moderate symptoms to warrant a 10 percent rating. Here, as discussed above, the evidence suggests that the Veteran's bilateral plantar fasciitis was no more than mild during the period prior to July 10, 2015. Thus, the Board finds that a higher rating under DC 5284 is not warranted.

For all the foregoing reasons, the Board finds that an initial compensable evaluation for bilateral foot plantar fasciitis prior to July 10, 2015 is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276.


ORDER

Entitlement to a compensable evaluation for the period prior to July 10, 2015 for service-connected headaches associated with a cervical spine condition is denied.

Entitlement to a single compensable evaluation of 10 percent for the period prior to July 10, 2015 for service-connected bilateral elbow arthritis is granted.

Entitlement to a compensable evaluation for the period prior to July 10, 2015 for service-connected bilateral plantar fasciitis is denied.



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs