Citation Nr: 0001745 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 95-09 516A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lung condition, to include residuals of bronchitis. 2. Entitlement to service connection for bilateral pes planus. 3. Entitlement to a compensable rating for bilateral plantar fasciitis. 4. Entitlement to a compensable rating based on multiple noncompensable service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and B. F. ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from May 1990 to December 1993. This matter initially came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an August 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. When the Board remanded this case in March 1997 the issues were service connection for a lung condition, to include the residuals of bronchitis, and service connection for a bilateral heel condition. Following VA examinations, a rating action in July 1997 granted service connection for bilateral plantar fasciitis, and assigned a noncompensable evaluation for the disorder, and denied service connection for bilateral pes planus. Service connection for bronchitis remanded denied. In a November 1997 Board remand it was noted that in the informal hearing presentation of October 1997 the veteran's service representative indicated that the veteran disagreed with the assignment of a noncompensable evaluation for her service-connected bilateral plantar fasciitis. However, an award of service connection constitutes a full award of benefits of an appeal initiated on that issue, the same RO decision as to the 'compensation' or 'rating' (and as to the effective-date elements) is a separate matter requiring a separate notice of disagreement (NOD) to initiate an appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) and Holland v. Gober, 10 Vet. App. 433 (1997) (per curiam). Accordingly, the matter of whether the informal hearing presentation constituted a notice of disagreement (NOD), initiating an appeal for a compensable evaluation for that disorder, was referred to the RO for appropriate consideration. Additionally, in the veteran's NOD in September 1994 it was stated that she now had disability of the knees due to her now service-connected disability of the feet. The Board remand in November 1997 construed this to be a claim for service-connected for disability of the knees. However, that matter had not then been adjudicated and was referred to the RO for appropriate consideration. A July 1998 rating action denied service connection for bilateral disability of the knees. Thereafter, a July 1998 SOC addressed the issues of a compensable rating for service connected plantar fasciitis and entitlement to a 10 percent rating, under 38 C.F.R. § 3.324 (1999) based on multiple noncompensable service-connected disorders. Received in July 1998 was correspondence from the veteran and a service representative indicated that she wished to file an NOD to the denial of service connection for disability of the knees and to perfect an appeal as to the claim for a compensable rating for bilateral plantar fasciitis, and VA Form 9 as to that issue was received, perfecting the appeal as to this increased rating claim. An SOC was issued latter in August 1998 addressing the issue of service connection for disability of the knees. However, no VA Form 9 was received addressing that issue nor has subsequent correspondence of the veteran or her service representative addressed this matter. Accordingly, the appeal as to that issue has not been perfected and, thus, the Board is without jurisdiction to adjudicate that matter. FINDINGS OF FACTS 1. The veteran had some transitory respiratory complaints during service but a chronic respiratory disorder is not shown. 2. Mild bilateral pes planus which was asymptomatic and which had not required the use of arch supports was detected on examination for service entrance. 3. The pre-existing bilateral pes planus is not shown to have undergone a permanent increase in severity during service. 4. The veteran's bilateral plantar fasciitis is manifested by pain and necessitates the use of foot support. 5. The veteran's service-connected acne is assigned a noncompensable rating but her service-connected plantar fasciitis warrants a compensable rating. CONCLUSIONS OF LAW 1. A chronic lung condition, to include residuals of bronchitis, was not incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). 2. Pre-existing mild bilateral pes planus was found on entrance into active service, rebutting the presumption of soundness upon service entrance but was not aggravated during active service. 38 U.S.C.A. §§ 1111, 1137, 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999). 3. A schedular rating of 10 percent for bilateral plantar fasciitis is warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5279 (1999). 4. A compensable rating based on multiple noncompensable service-connected disabilities which interfere with employability is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.324 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The examination for service entrance in July 1989 was negative for respiratory disability but found mild bilateral pes planus which was asymptomatic and had not required the use of arch supports. There were no complaints on an adjunct medical history questionnaire (and the veteran has testified that she had no problems with her feet prior to service). When the veteran was seen in February 1990 for, in part, throat pain and congestion. Her lungs were negative and the assessment was bacterial tonsillitis, for which she was given antibiotic medication. She was seen in May 1990 for pain in her feet and heels and in September 1990 she had a right foot infection. The veteran was seen in April 1993 for bronchitis. She was given antibiotics, Prednisone, and an inhaler for bronchitis. On examination she had basilar wheezes and rhonchi in her lungs but after the use of a nebulizer there were no wheezes but there were still rhonchi which were greater in the left lung than the right lung. It was reported that a chest X-ray had revealed questionable air bronchospasm. The assessment was bronchitis with RAD (reactive airway disease). She was given a physical profile limiting her duties for seven days due to acute bronchitis. A subsequent clinical notation reflects that she was informed of "abnormal RAD results" and had been doing somewhat better with medication and inhalers. Another clinical notation several days later indicates she still had some shortness of breath from bronchitis and had a history of pneumonia but that bronchitis had resolved. Nevertheless, she was to continue to use an inhaler. In August 1993 she again complained of bilateral heel pain and after examination and X-rays, which found no heel spurs, the assessment was symptomatic "pes plantar." In September 1993 the assessment was fascial fatigue or fasciitis. The report of an examination at service discharge is not on file but the veteran testified that she was not given an examination at service discharge, because it had been waived (page two of the transcript of that hearing). On VA general medical examination in April 1994 the veteran complained of her heels being sore after weight-bearing and using pads in her shoes because of this. She also complained of congestion and a recurrent non-productive cough. On examination her posture, carriage, and gait were normal. Her respiratory system and feet were also normal. It was recommended that X-rayss of the feet and chest be performed but a review of the claims folder indicates that the recommended films were not taken. The diagnoses included possible tendinitis causing heel pain. Private medical records show treatment for an upper respiratory infection in June 1994 and for bilateral plantar fasciitis in August 1995. In June 1994 Dr. Sprague reported that the veteran had a cough, chest congestion, nasal discharge, fever, and generalized body aches. While her past medical history was benign, she had a family history of asthma. On examination her chest and lungs were completely clear of wheezes, rates or rhonchi. The impression was an upper respiratory infection, for which she was given medication. In August 1995 she complained of discomfort centered at the anterior calcaneus with radiation anteriorly along the lateral aspect of her foot. She was being followed by a podiatrist. She received treatment presumably for plantar fasciitis and arch problems. She was treated with arch supports and padding. She had had some fairly good relief, although it did bother her when she used non-padded shoes or walked barefoot on almost a daily basis. Her right foot was more bothersome than the left. On examination there was some pronation of her right foot, especially when compared to her left foot. She had mild tenderness on palpation over the insertion of the arch. She had fairly good mobility and there was no tenderness of the Achilles tendon. The impression was bilateral plantar fasciitis. She was to purchase new foot supports and to stretch her feet. The veteran testified at the RO in July 1995 the veteran stated that she had no preserivce difficulty breathing but began having such problems during her second year of military service when she got pneumonia and bronchitis, and since that time she had had respiratory problems (page 1 of the transcript of that hearing). She had never really recovered and had been placed on light duty during service and given medication (page 2). Thereafter, and still during service, she had had recurring respiratory attacks requiring the use of an inhaler and since military service she had still had had recurring respiratory attacks and used her sister's asthma machine every two or three months. Otherwise, she had only sought treatment on one occasion, in 1994 (page 3). Her current symptoms were the same as those she experienced during active service and included shortness of breath and congestion (page 4). She had not had problems with her feet prior to service and had first been given supports for her feet during service which afforded some temporary relief (page 5). During service physicians had not detected any heel spurs but she received treatment as if she had had heel spurs and since service she had continued to have constant discomfort in her heels (page 6) even with the use of supports (page 7). At work she did not have to carry heavy weight but just normal walking for a short distance caused pain (pages 7 and 8). She tended to limp, more on the right than the left, because the right foot was more painful (page 8). A witness testifying in behalf of the veteran stated that the veteran was always complaining that her feet hurt when she walked and had problems breathing (page 8). The witness had seen the veteran limp and have difficulty breathing, too such an extent that when at work the veteran had to stop working and rest (pages 8 and 9). The veteran testified that her foot pain was basically at the heels and occasionally at the "flat" of the feet, on the underside (page 9). In April 1997 the RO contacted the veteran and requested that she furnish the names and addresses of all physicians who had treated her for any lung or foot condition since military service. However, no response was received. On VA examination in June 1997 of the veteran's feet she complained of lots of discomfort of both feet, mainly in the heels. She did not report having lost any time from work since discharge from service. Her pain was worse in the left foot. On examination her posture was normal and she had no significant difficulty squatting, performing supination or pronation or arising on her toes and heels, although raising on her toes and heels did create some minor discomfort. Her feet were normal in appearance and function and without deformity. Plantar flexion was to 45 degrees and dorsiflexion was to 10 degrees, bilaterally. Her gait was normal. There were no secondary skin or vascular changes of her feet. X-rays revealed her feet were normal. The diagnosis was mild pes planus with plantar fasciitis. It was felt that the veteran's pre-service pes planus may have been aggravated by her wearing military boots during service. Her asymptomatic pes planus "certainly" was a predisposing cause of her plantar fasciitis. Because her X-rays were normal and her left foot was asymptomatic it was "certainly felt" that her condition was not a debilitating condition. On VA respiratory examination in June 1997 it was recorded that the veteran reported having had pneumonia during service for which she had been treated on an outpatient basis. She currently complained of an occasional cough which was sometimes productive of clear phlegm. Her last episode had been eight weeks ago. On examination her lungs were clear to auscultation and percussion. A chest X-ray was normal. A pulmonary function study was normal. It was indicated that her disease appeared to be in remission. The diagnosis was no evidence of active disease. The examiner commented that she certainly had no condition of a chronic or disabling lung condition at the time of the examination. The claim file was reviewed in February 1998 by the VA examiner that conducted the VA examination in June 1997. It was reported that at the time of the 1997 examination the veteran "certainly [had] no condition of a chronic or disabling lung condition." Law and Regulations Service connection is warranted for disability due to disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Positive medical evidence of nexus between current disability and service may be rebutted by medical evidence demonstrating the significance of a lack of continuity of symptomatology. Rose v. West, 11 Vet. App. 169, 171-72 (1998). Service connection is warranted under 38 C.F.R. § 3.303(b) if a disease manifests itself during service (or in a presumptive period) but is not identified until later and there is a showing of post service continuity of symptoms and medical evidence relates the symptoms to the current condition. Rose v. West, 11 Vet. App. 169, 171-72 (1998) (citing Savage v. Gober, 10 Vet. App. 488, 495-98 (1997)). Not every manifestation of cough, in service will permit service connection for pulmonary disease, first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137 (West 1991). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Disability evaluations are determined by use of a schedule of ratings and are based on average impairment of earning capacity. Separate Diagnostic Codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. All potentially applicable regulations must be applied, Schafrath v. Derwinski, 1 Vet. App. 589 (1991), including 38 C.F.R. §§ 4.1, 4.2, and 4.10 which require that the entire recorded history be reviewed with an emphasis on the effects, particularly, limitation, on ordinary activity and lack of usefulness. Not all disabilities will show all the findings specified in the rating criteria but coordination of the rating with functional impairment is required. 38 C.F.R. § 4.21. The higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Consideration may not be given to factors wholly outside the rating criteria provided by regulation. Massey v. Brown, 7 Vet. App. 204, 208 (1994) (citing Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992)). The present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, this is not applicable in an appeal from a rating assigned by an initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Also, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. Powell v. West, No. 98-1675, slip op. (U.S. Vet. App. Sept. 21, 1999). Under 38 C.F.R. § 4.40 and § 4.45 functional impairment from pain or weakness, with actual pathology, are not "subsumed" in ratings based solely on limited motion and a higher rating than actually demonstrated by limitation of motion alone, even if the limited motion is compensable, is not a form of prohibited pyramiding under 38 C.F.R. § 4.14 (1996). Thus, there may be additional limitation of motion from pain or on repeated use of the joint. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995). With joint pathology painful motion is a disability factor, with behavioral changes on testing being corroborating evidence thereof, and warrants at least the minimum rating. 38 C.F.R. § 4.59. Rating of a disability not listed in the VA Schedule for Rating Disabilities may be done analogously to a listed condition under 38 C.F.R. § 4.20 or by a 'built- up' diagnostic code under 38 C.F.R. § 4.27. This choice, and the choice of past diagnostic criteria, should be explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992); Tedeschi v. Brown, 7 Vet. App. 411, 413-14 (1995); Horowitz v. Brown, 5 Vet. App. 217, 224 (1993). Consideration is given not merely to similarity of symptoms but also to the (1) "functions affected", (2) "anatomical localization", and (3) "symptomatology." Lendenmann v. Principi, 3 Vet. App. 345, 351 (1992) (analogous ratings on the basis of etiology rather than symptoms). 38 C.F.R. § 4.27 provides that the diagnostic code number will be 'built-up' with the first 2 digits being selected from the part of the schedule most closely identifying the bodily part or system, and, following a hyphen, the last 2 digits will be '99' to signify that it is rated as an unlisted condition. Generally see Archer v. Principi, 3 Vet. App. 433 (1992). Here, the veteran's bilateral plantar fasciitis has been rated analogously as metatarsalgia. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5279 (1999) unilateral or bilateral anterior metatarsalgia (Morton's disease) warrants a maximum schedular evaluation of 10 percent. This is the only rating provided for anterior metatarsalgia (Morton's disease). Under 38 C.F.R. § 3.324 (1999) "[w]henever a veteran is suffering from two or more separate permanent service- connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the [Rating Schedule] the rating agency is authorized to apply a 10- percent rating, but not in combination with any other rating." Analysis Lung condition, including Bronchitis As indicated in 38 C.F.R. § 3.303(b) not every cough during in service will permit service connection for pulmonary disease, first shown as a clear-cut clinical entity at some later date. In other words, a mere similarity of symptoms during service with symptoms after service (as the veteran testified) is not sufficient to warrant the conclusion that an inservice disability has continuously existed to the present time. Indeed, in this case the veteran pneumonia or bronchitis during service was acute and eventually resolved. In the opinion of a VA examiner, the veteran does not now have a chronic respiratory disability based on clinical evidence. Further, while the veteran has testified that she experiences some improvement in her respiratory function after using her sister's asthma equipment, it must be noted that she is not currently being treated for respiratory disability. Accordingly, service connection for a lung condition, including bronchitis, is not warranted. Pes Planus The July 1997 rating action which granted service connection for bilateral plantar fasciitis, specifically continued the denial of service connection for bilateral pes planus. The threshold legal question is whether or not bilateral pes planus preexisted service and, if so, whether it was aggravated during his military service. Here, because bilateral pes planus was found on the examination for service entrance the presumption which normally attaches, of a veteran being in sound condition at service entrance, does not apply. The veteran was treated for disability of her feet during active service and this is now shown to have been primarily for the now service-connected bilateral plantar fasciitis. The notation during service of symptomatic "pes plantar" does not equate with "pes planus." Rather, it signifies the onset of her now service-connected plantar fasciitis. The most recent VA medical opinions on file indicate that while the pre-existing bilateral pes planus gave rise to plantar fasciitis during service, these medical opinions suggest that the pes planus did not undergo an increase in severity during service. While the examiner in June 1997 speculated that the veteran's wearing of boots during service might have aggravated her pre-existing bilateral pes planus, the diagnosis was that her bilateral pes planus was only of a mild degree, which is the same level of severity that existed at the time of entrance into service (and the inservice treatment was for the now service-connected plantar fasciitis). Thus, there could be no aggravation of the pes planus disability. Accordingly, service connection for bilateral pes planus is not warranted. Bilateral Plantar Fasciitis The rating schedule provides for only a 10 percent rating for Morton's disease, whether unilateral or bilateral, and is to be assigned whenever such disease is active. While the VA rating examination in 1997 indicated that her plantar fasciitis was not "debilitating" it was also noted that she continued to have active clinical symptoms. Here, in the judgment of the Board, the plantar fasciitis is most closely analogous to Morton's disease and since the plantar fasciitis is active, even if not significantly debilitating, a minimum rating (and only rating assignable under the Rating Schedule) of 10 percent must be assigned. A compensable rating based on multiple noncompensable service-connected disabilities By this decision the veteran is entitled to a 10 percent rating for her service-connected bilateral plantar fasciitis. Accordingly, she no longer meets the minimum criteria for a compensable rating under 38 C.F.R. § 3.324 (i.e., multiple service-connected disabilities, all of which are noncompensable). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case that claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). In this case, for the foregoing reasons and bases, the preponderance of the evidence is against the claims (except for a rating of 10 percent for bilateral plantar fasciitis) and, thus, there is no doubt to be resolved in favor of the veteran. ORDER Service connection for a lung condition, to include residuals of bronchitis, and pes planus is denied and a compensable rating based on multiple noncompensable service-connected disabilities is denied. A rating of 10 percent for bilateral plantar fasciitis is granted subject to applicable laws and regulations governing the award of monetary benefits. JOHN FUSSELL Acting Member, Board of Veterans' Appeals