Citation Nr: 0005366 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-00 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hallux valgus. 2. Entitlement to service connection for gout. 3. Entitlement to an increased rating for postoperative residuals of right foot hammertoe deformities, toes two-five, currently evaluated as 20 percent disabling. 4. Entitlement to an increased rating for postoperative residuals of left foot hammertoe deformities, toes two-five, currently evaluated as 20 percent disabling. 5. Entitlement to an increased rating for residuals of a right knee stress fracture with patellar tendonitis, currently evaluated as 20 percent disabling. 6. Entitlement to an increased rating for residuals of a left heel bone spur, currently evaluated as 10 percent disabling. 7. Entitlement to a total disability rating based upon individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard A. Cohn, Associate Counsel INTRODUCTION The veteran served on active duty from January 1981 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO) as follows: a January 1997 decision which continued a 30 percent evaluation for bilateral postoperative hammertoes, and which continued 10 percent evaluations, respectively for a left heel bone spur and for residuals of a right knee stress fracture with patellar tendonitis; and an August 1998 decision which denied TDIU status and denied service connection for gout and bilateral hallux valgus. The Board addresses the TDIU and service connection issues in the REMAND portion of this decision. During the pendency of this appeal the RO increased the evaluations of the right knee disorder to 20 percent and to the right and left foot hammertoe deformities to 20 percent each. The Board also notes that at the time of his April 1997 RO hearing the veteran asserted a claim of entitlement to service connection for a bilateral elbow disorder and in a letter which the RO received in July 1999 the veteran asserted a claim of entitlement to service connection for arthritis. The record does not show that the RO responded to these claims. Therefore, the Board refers these matters back to the RO for appropriate action. FINDINGS OF FACT 1. The record includes all evidence necessary for the equitable disposition of this appeal. 2. The veteran's service-connected postoperative residuals of right foot hammertoe deformity, toes two-five is manifested by clawfoot, limitation of ankle dorsiflexion and tenderness, but not by ten hammertoes, shortened plantar fascia with or without dropped forefoot, marked varus deformity or very painful callosities. 3. The veteran's service-connected postoperative residuals of left foot hammertoe deformity, toes two-five is manifested by clawfoot, limitation of ankle dorsiflexion and tenderness, but not by ten hammertoes, shortened plantar fascia with or without dropped forefoot, marked varus deformity or very painful callosities. 4. The veteran's service-connected residuals of a right knee stress fracture with patellar tendonitis is manifested by slight limitation of motion, a right patellar bump consistent with a healed stress fracture, some blunting of the lateral meniscus and a small patellar osteophyte, but not by subluxation, lateral instability or pain upon motion. 5. The veteran's service-connected residuals of a left heel bone spur is manifested by no more than tenosynovitis of the peroneal and extensor ankle tendons and range of ankle motion limited to 5 degrees of dorsiflexion and 30 degrees of plantar flexion. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for postoperative residuals of right foot hammertoe deformity, toes two-five have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.44-45, 4.57, 4.59, 4.71a, Diagnostic Codes 5278, 5282 (1999). 2. The criteria for an evaluation in excess of 20 percent for postoperative residuals of left foot hammertoe deformity, toes two-five have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.44- 45, 4.57, 4.59, 4.71a, Diagnostic Codes 5278, 5282 (1999). 3. The criteria for an evaluation in excess of 20 percent for residuals of a right knee stress fracture with patellar tendonitis have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.44-45, 4.57, 4.59, 4.71a, Diagnostic Code 5257 (1999). 4. The criteria for an evaluation in excess of 10 percent for residuals of a left heel bone spur have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.44-45, 4.57, 4.59, 4.71a, Diagnostic Code 5015 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he is entitled to higher evaluations for his service-connected bilateral hammertoes, and his right knee and left heel disorders because they are more disabling than contemplated by the current ratings. A claimant for benefits under a law administered by the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). Because an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating, see Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the Board finds that the veteran's claim for an increased rating based upon an alleged increase in the severity of his service-connected disability is well grounded. Once a claimant presents a well-grounded claim, VA has a duty to assist the claimant in developing facts which are pertinent to the claim. Id. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue on appeal is of record. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1999). If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more nearly the criteria required for that rating. 38 C.F.R. § 4.7. A disability may require reratings in accordance with changes in a veteran's condition. It is therefore essential to consider a disability in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. Nevertheless, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A disability of the musculoskeletal system is primarily a damage- or infection-caused inability of a body part to move with normal excursion, strength, speed, coordination and endurance. A ratings examination must fully describe anatomical damage and functional loss in each of these areas. A functional loss may result from absence of a bone, joint, muscle or associated structure, or to a deformity, adhesion, defective innervation or other pathology, or it may be due to pain, provided claimed pain is supported by evidence of pathology and visible behavior of the claimant while undertaking the motion. Weakness is as effective an indicator of disability as limitation of motion and a body part which becomes painful on use is seriously disabled. 38 C.F.R. §§ 4.40, 4.45. In addition to applying schedular criteria, VA may consider granting a higher rating when the veteran is rated under a code that contemplates limitation of motion and additional functional loss due to pain or weakness is demonstrated. DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). Hammertoes In February 1990 the RO granted service connection for postoperative residuals of right and left foot hammertoe deformities, toes two through five, and assigned a 10 percent disability rating for each foot pursuant to Diagnostic Code (DC) 5282. The Board ordered an increased rating for bilateral postoperative hammertoe deformity to 30 percent in October 1992 and the RO assigned the 30 percent combined rating in November 1992 pursuant to DC 5278. In October 1997 the RO increased the ratings for postoperative residuals of right and left foot hammertoe deformities, toes two through five, (previously rated under DC 5278 as 30 percent combined) to 20 percent each foot pursuant to DCs 5278-5283. Under 38 C.F.R. § 4.71a, DC 5282, a 10 percent rating is warranted for unilateral hammertoe of all toes without clawfoot and a 0 percent rating is warranted for single toes. Under 38 U.S.C.A. § 4.71a, (DC) 5278, acquired claw foot is evaluated as follows: symptoms of marked contraction of plantar fascia with dropped forefoot, all toes hammer toes with very painful callosities and marked varus deformity warrants a 50 percent rating for a bilateral disorder and a 30 percent rating for a unilateral disorder; symptoms of all toes tending to dorsiflexion, limitation of ankle dorsiflexion to right angle, shortened plantar fascia and marked tenderness under the metatarsal heads warrants a 30 percent rating for a bilateral disorder and a 20 percent rating for a unilateral disorder; symptoms of dorsiflexed great toe, some limitation of ankle dorsiflexion and definite tenderness under the metatarsal heads warrants a 10 percent rating for both a bilateral and unilateral disorder. A report of the veteran's February 1994 VA joints examination noted the veteran's report of in-service surgery for bilateral hammertoes. Objective findings included fixed bilateral hammertoe deformities of toes two through four, fixed flexion contractures at the PIP joints and flexible deformities at the DIP joints and well-healed dorsal foot scars. A report of the veteran's December 1994 VA feet examination noted the veteran's report of some occasional soreness as a result of his hammertoe arthroplasties. Objective findings included well-healed incisions in the web spaces from the hammertoe corrections, joint fusion with good deformity correction without callus or abnormal wear and extreme tenderness upon deep palpation of the medial anterior calcaneus. Contemporaneous X-rays of the left foot disclosed degenerative changes of the proximal interphalangeal joints of the third and fourth toes without other fractures or dislocations. A report of the veteran's November 1996 VA general medical examination noted the veteran's complaint of bilateral foot pain. Objective findings included normal carriage, posture and gait, and, except for bilateral arthroplasty scars, normal feet without deformity, pain upon pressure or limitation of active or passive toe motion. Contemporaneous X-rays disclosed normal bony architecture, bilaterally, without evidence of acute fracture, dislocation or subluxation. A report of the veteran's June 1997 VA joints examination noted objective findings including normal gait, bilateral residual claw deformities of the second through fifth toes, old healed hammertoe surgery wounds, significant bilateral tenosynovitis on the lateral and medial aspects of the peroneal and extensor tendons of the ankles, much more on the right than the left, negative bilateral ankle drawer and limitation of bilateral ankle motion to 5 degrees of dorsiflexion and 30 degrees of plantar flexion. A report of the veteran's February 1998 VA feet examination noted the veteran's complaint of bilateral foot pain. Objective findings included normal heel/toe gait, ability to heel and toe walk, absence of inflammation, redness or signs of infection, well-formed arches, fixed flexion contractures of the PIP joints, flexible DIP joints extend to neutral and flex to approximately 20 degrees, and essentially normal MRI and X-ray findings except for bilateral postsurgical changes of small toe proximal phalanxes two through five. The examining physician stated that examination failed to disclose an objectively identifiable cause of the pain the veteran reported. The veteran testified at his April 1998 RO hearing that he has extreme bilateral foot pain relating to the hammertoe disorder, as well as foot cramps and calluses. The veteran also stated that his foot pain precluded him from walking barefoot and required him to wear pads in his shoes so he could walk. The Board finds that, because the medical evidence includes a reference to bilateral clawfoot, evaluation of the veteran's bilateral hammertoes is appropriate under DC 5278. There is also evidence of limitation of ankle dorsiflexion to 5 degrees and tenderness. However all the veteran's toes are not hammertoes and there is no objective evidence of shortened plantar fascia with or without dropped forefoot, marked varus deformity or very painful callositas. Therefore, Board finds that the preponderance of the objective evidence of record supports no more than a 20 percent evaluation for both of the veteran's postoperative residuals of right and left foot hammertoe deformities, toes two through five. The Board also has considered whether a higher rating for the right knee disorder is available under another DC. However, the Board finds that the veteran's bilateral hammertoe disabilities constitute no more than moderately severe malunion or nonunion of the tarsal or metatarsal bones, or moderately severe foot injuries under DCs 5283 or 5284, respectively, for which no more than a 20 percent rating is warranted for each foot. Residuals of a right knee stress fracture with patellar tendonitis The RO granted service connection for residuals of a right knee stress fracture with patellar tendonitis in November 1989 and assigned a 10 percent disability rating pursuant to DC 5257. The Board affirmed the 10 percent rating in October 1992. In October 1996, the RO increased the rating to 20 percent pursuant to the same DC. Under 38 C.F.R. § 4.71a, DC 5257 (1999), a 30 percent rating is warranted for a knee impairment characterized by severe recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability and; a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. The medical evidence associated with the claims file since the Board's October 1992 decision discloses little objective evidence of a right knee disorder. Except for minimal limitation of motion, VA examination and X-rays in February 1994 disclosed an asymptomatic right knee with no evidence of an old healing fracture or a subsurface patella disorder. Medical records from September 1994 revealed that the veteran sought private treatment for a right knee injury. The report of a November 1996 VA examination including X-rays disclosed a normal right knee with no evidence of acute fracture, dislocation, subluxation or effusion. The report of a June 1997 VA examination, including X-rays and magnetic resonance imaging (MRI), noted the veteran's report of right knee pain and objective findings including slight limitation of motion and a right patellar bump consistent with a healed stress fracture. The examining physician also found no patellar hesitation or crepitus, no tenderness over the patellar or quadriceps tendons or the medial or lateral joint lines, negative Lachman and posterior drawer and no McMurray sign. MRIs disclosed a normal right knee except for some blunting of the lateral meniscus and a small patellar osteophyte. The report also noted that there was no evidence of patellar tendonitis and the examining physician opined that the veteran's right knee was essentially normal. The veteran testified at his April 1998 RO hearing that he has right knee subluxation, instability, constant swelling, crepitus, pain upon motion and nightly stiffness. He stated that he would not be able to walk a block without pain and that he could stand for no more than five or ten minutes. The veteran also argued, in essence, that his right knee disorder at least contributed to his losing his employment because of excess sick time. However, the claims file includes virtually no objective medical evidence supporting his assertions. Since 1994, at least three VA physicians have examined the veteran's right knee, which also has been subject to repeated X-rays and an MRI. The only objectively confirmed right knee symptomatology includes slight limitation of motion, a right patellar bump consistent with a healed stress fracture, some blunting of the lateral meniscus and a small patellar osteophyte. There is no medical evidence of subluxation, lateral instability or pain upon motion. Neither is there objective medical evidence of functional loss due to pain or corroborative evidence supporting the veteran's claims of lost work necessitated by a right knee disorder. In consideration of the foregoing, the Board finds that the preponderance of the objective evidence of record supports no more than a 20 percent evaluation for the veteran's right knee disorder. The Board also has considered whether a higher rating for the right knee disorder is available under another DC. However, all other codes pertaining to the knee are inapplicable. Residuals of a left heel bone spur The RO granted service connection for a left heel bone spur in November 1992 and assigned a noncompensable rating pursuant to DC 5015. In July 1995 the RO increased the rating to 10 percent pursuant to the same DC. A bone spur is not specifically listed in the rating schedule. Therefore, the disability must be evaluated by analogy. See 38 C.F.R. § 4.20, 4.27 (1999). When a disability is not listed in the rating schedule, VA may assign a rating pursuant to a code provision pertaining to a related disorder for which affected functions, anatomical localization and symptomatology are similar. Lendenmann v. Principi, 3 Vet. App. 345, 349- 350 (1992); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the veteran has been diagnosed as having a left heel bone spur, evaluation of which under 38 U.S.C.A. § 4.71a, DC 5015 (1999), pertaining to benign new bone growths, is appropriate because the symptomatology for the two disorders is similar and affects the same functions. Disorders rated under this DC are evaluated on limitation of motion of the affected part, in this case, the left ankle. See 38 C.F.R. § 4.71a DC 5271 (1999), pertaining to limited ankle motion. There is substantial private and VA medical documentation of examination and treatment of the veteran's left heel bone spur in 1994. A report of a February VA joints examination noted that, except for the veteran's hammer-toe deformity, the veteran's foot posture was normal. In June, the veteran sought VA treatment for pain after injuring his left heel. His left heel showed vague fullness and tenderness and he was diagnosed with a left heel contusion. X-ray examination showed a small left heel bone spur but no evidence of traumatic injury. Medical records also show that the veteran sought private treatment for a left heel injury in September. After treatment, a private osteopath wrote a note stating, without explanation or elaboration, that "due to current injury" the veteran should be excused from work requiring use of his feet or lower legs. An October letter from a private podiatrist stated that the veteran had sought treatment for left heel pain. The podiatrist diagnosed plantar fasciitis/heel spur syndrome. Treatment in September and October involved taping, padding and injecting the affected area with medication and the podiatrist opined that most similar disorders usually resolved within three months with conservative treatment. Treatment records disclose that the veteran's reported left heel pain and inability to wear heavy work boots but that he canceled his last appointment after reporting to be "doing great." A VA physician who examined the veteran in December reported the veteran's complaint of discoloration and a recent "tremendous increase" in left heel pain. The examiner found a fairly tight Achilles tendon and limited range of motion. A January 1995 VA X-ray also showed a left heel spur. After a January 1995 notation of an X-ray examination, there is no additional evidence that the veteran continued to have a left heel bone spur. The report of a general VA medical examination in November 1996 noted the veteran's complaint of bilateral foot pain. Objective findings included normal carriage, posture and gait, and normal feet with full range of motion and no pain upon pressure. Contemporaneous X-rays disclosed an asymptomatic left foot. The VA physician who examined the veteran in June 1997 noted the veteran's complaint of a painful left foot heel spur. Objective findings pertaining to the left heel included normal gait, absence of significant pain or tenderness over the plantar surface, significant tenosynovitis of the peroneal and extensor ankle tendons, range of ankle motion limited to 5 degrees of dorsiflexion and 30 degrees of plantar flexion. The examination report noted X-rays showing some residuals of the veteran's bilateral hammer-toe deformity but included no diagnosis of a left heel bone spur. The veteran reported continued foot pain to the VA physician who examined him in February 1998. The examiner noted that a July 1997 MRI examination disclosed some residuals of the veteran's bilateral hammertoe deformity but no other left foot abnormalities. There was no objective evidence of left heel pain. Other objective findings included normal heel/toe gait, ability to heel walk and toe walk, well-formed arch, good foot strength and range of ankle motion limited to 5 degrees of dorsiflexion and 30 degrees of plantar flexion. The veteran has provided his own description of his left foot disability. In a September 1994 written statement, he asserted that his left heel bone spur caused a left foot ligament tear and required him to take pain-killing medications. He also stated that the disorder prevented him from working at his occupation as a laborer because he was unable to withstand prolonged standing, walking or weight- bearing in his steel shank work boots. The veteran testified at his April 1997 RO hearing that his left heel was swollen, discolored and so painful that he was unable to walk barefoot and had to wear two socks, an entire package of commercial foot pads and a heel cup to be able to walk in shoes. The claims file includes virtually no objective medical evidence supporting his assertions concerning his left heel disorder. Repeated VA examinations have disclosed that, since 1994, the veteran's left heel symptoms have included only tenosynovitis of the peroneal and extensor ankle tendons and no more than a moderate limitation of ankle motion. Normal range of ankle motion is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (1999). There is no objective confirmation of left heel pain or functional loss. Moreover, there is no medical documentation of a left heel bone spur diagnosis after January 1995. In consideration of the foregoing, the Board finds that, to the extent that the veteran has a current left heel disorder, the preponderance of the objective evidence supports an evaluation of no more than 10 percent. The Board also has considered whether a higher rating for the left heel disorder is available under another DC. However, review of all other codes pertaining to the ankle and foot discloses no other applicable DCs. Conclusion The Board finds that the veteran's pain has been considered in the assignment of the current, 20 percent evaluations for both the veteran's right and left hammertoe deformities, 10 percent evaluation for the veteran's left heel disorder, and the 20 percent evaluation for right knee disorder. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (1997); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Furthermore, review of the totality of findings of the veteran's latest examinations discloses no evidence of functional loss due to pain in excess of that already contemplated by the codes. Therefore, consideration of pain as evidence of functional loss does not support assignment of higher evaluations. These decisions are based solely upon the provisions of the rating schedule. The Board finds that the record does not establish that schedular criteria are inadequate to evaluate the veteran's disabilities. The Board acknowledges the veteran's repeated claims that his service-connected disorders have had a marked negative effect on his working life and have caused him to lose several jobs. Beyond the veteran's own statements, the only evidence supporting this claim is the September 1994 letter from a private osteopath stating without explanation or elaboration that the veteran was unable to work due to "current injury." The Board also notes an October 1996 letter from the veteran's then-employer ordering him to return to work because the industrial doctor had found that the veteran's injury did not prevent him from working. Therefore, the Board finds no convincing evidence showing that the disabilities under consideration have caused marked interference with employment (i.e., beyond that contemplated in the assigned evaluation) or necessitated frequent periods of hospitalization so as to render the schedular standards inadequate and to warrant assignment of an extra-schedular evaluation. In the absence of this evidence, the Board finds that that remand for compliance with the procedures for assignment of an extra-schedular evaluation is not warranted. See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased rating for postoperative residuals of right foot hammertoe deformities, toes two-five, currently evaluated as 20 percent disabling, is denied. An increased rating for postoperative residuals of left foot hammertoe deformities, toes two-five, currently evaluated as 20 percent disabling, is denied. An increased rating for residuals of a right knee stress fracture with patellar tendonitis, currently evaluated as 20 percent disabling, is denied. An increased rating for residuals of a left heel bone spur, currently evaluated as 10 percent disabling, is denied. REMAND The Board notes that review of the claims file discloses that the RO has not fully responded to certain issues raised by the veteran. In an October 1997 written statement the veteran submitted claims of entitlement to service connection for hallux valgus and gout. In May 1998 the veteran submitted a written TDIU claim. The RO denied all of these claims in August 1998. Later that month the veteran submitted a written statement to the RO requesting a hearing in which to appeal denial of these benefits. The Board construes the veteran's August 1998 statement as a timely filed Notice of Disagreement (NOD). See 38 C.F.R. § 20.201 (1999). Review of the claims file does not disclose that the RO provided the veteran with the required Statement of the Case (SOC) in response to the NOD. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200 (1999). When the Board determines that further evidence or clarification of the evidence, or correction of a procedural defect is essential for a proper appellate decision, the Board must remand the matter to the agency of original jurisdiction. 38 C.F.R. § 19.9 (1999); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (Board determination that RO failure to issue an SOC in response to a veteran's NOD contesting a rating decision is a procedural defect requiring remand to the RO). In consideration of the foregoing, the Board has determined that further development of the case is necessary to provide the veteran due process of law. Accordingly, this case is REMANDED for the following action: The RO should provide the veteran with a SOC addressing all evidence pertaining to the claims of entitlement to service connection for hallux valgus and gout and for TDIU status and with information regarding the appropriate time period within which to submit a substantive appeal. If the veteran files a timely substantive appeal, the RO should process the case and return it to the Board in compliance with the applicable procedures regarding processing appeals. The purpose of this REMAND is to obtain additional development, and the Board does not now intimate an opinion, either favorable or unfavorable, as to the merits of the case. Although the veteran need not take further action until so notified by the RO, the veteran may submit to the RO additional evidence and argument pertaining to this remand. Kutscherousky v. West, 12 Vet. App. 369 (1999). JAMES A. FROST Acting Member, Board of Veterans' Appeals