Citation Nr: 0007083 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 97-13 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation for a right foot disorder, post-operative status, currently rated 10 percent disabling. 2. Entitlement to an increased (compensable) evaluation for sinusitis. 3. Entitlement to service connection for a back disorder. 4. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran served on active duty from August 1976 to August 1996. The appeal arises from the October 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, granting service connection for right heel neuroma, plantar fasciitis, status post excision of heel neuroma and excision of plantar fascia with Steindler fasciotomy; and granting service connection for sinusitis. The RO by that decision assigned noncompensable ratings for both those disorders. By that rating action, in pertinent part, the RO also denied entitlement to service connection for back and left knee disorders. In the course of appeal, the veteran testified before a hearing officer at the RO in July 1997. A transcript of the hearing is included in the claims folder. By a November 1997 rating decision, in pertinent part, the RO granted an increased rating for the veteran's right foot disorder, post operative status, to 10 percent disabling. The Board remanded the appealed claims in April 1999 for further development. Following development, the case was returned for further appellate review. FINDINGS OF FACT 1. The veteran's right foot disorder, post operative status, is productive of no more than moderate foot disability. 2. The veteran's sinusitis is less than moderate in degree, does not produce one or two incapacitating episodes per year or three to six non-incapacitating episodes per year, and is not currently detectable on X-ray examination. 3. A back disorder developed in service. 4. A left knee disorder developed in service. CONCLUSIONS OF LAW 1. The schedular requirements for a rating in excess of 10 percent for a right foot disorder, post operative status, have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, Part 4, Diagnostic Code 5284 (1999). 2. The schedular requirements for a compensable rating for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.2, 4.10, Part 4, Diagnostic Code 6513 (effective prior to and since October 7, 1996) (1999). 3. A back disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1999). 4. A left knee disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Increased Rating Claims Initially, the Board finds the appellant's claims well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that her claims are plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This determination is based on the appellant's evidentiary assertions that her service-connected disabilities have increased in severity. Proscelle v. Derwinski, 1 Vet.App. 629 (1992); King v. Brown, 5 Vet.App. 19 (1993). Once it has been determined that the claims are well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claims. 38 U.S.C.A. § 5107. The Board is satisfied that all available evidence necessary for an equitable disposition of the appeal has been obtained. Under applicable criteria, disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. It is essential that each disability be viewed in relation to its history, and that medical examinations are accurately and fully described emphasizing limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1 (1999). In evaluating service- connected disabilities, the Board looks to functional impairment. The Board attempts to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (1999). 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). 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 (1999). 1. a. Right heel disorder 1. a. 1) Factual Background Service medical records show numerous treatments for the veteran's right heel neuroma and plantar fasciitis, status post excision of both with Steindler fasciotomy. Post service at an October 1996 VA general examination, the veteran had full range of motion of all extremities. She had a well-healed scar on the right foot. The veteran reported that her plantar fasciitis of the right foot with neuroma bothered her daily, though she had learned to live with the pain. The examiner noted only that the condition was post operative. In a VA Form 9 submitted in February 1997, the veteran emphasized that over the years she had undergone 41 treatments and two surgeries for her right foot disorder, and she was in constant pain from her right foot disorder. She stated that as a result of the foot disorder, it always felt like she was walking on concrete without shoes. At a hearing before a hearing officer at the RO in July 1997, the veteran testified that she had difficulties with the right foot disorder on numerous occasions in service, adding that the foot had been casted in excess of eight to ten times: twice post operatively, and the remaining times to afford the muscles of the foot an opportunity to recover. She testified that she currently worked full-time at the Post Office in automation, and stood eight hours per day at her job. Despite this, she testified to not having lost any time from her work due to her right foot disorder. She testified that there was tenderness in the surgical scar of her right foot which "comes and goes," adding that when the scar hurt there was pain, and there was also itching. She testified that currently she had chronic pain. She explained that if she stood for long periods of time she would shift her weight so that her foot wouldn't hurt her. The veteran also testified that she suffered from a "charley horse" on the bottom of the right foot when she arose in the morning, which would be present until she stretched the foot. She testified that the right foot disorder affected the way she walked, explaining that she walked on the outside of her feet. Also in testimony, she vaguely described self-treatment for her right foot, including icing the foot and taking Tylenol and anti-inflammatory medications, though she did not specify with what frequency she required any of these treatments. She testified that she might tape the foot, which greatly diminished pain that might otherwise result from walking. In February 1999 the veteran received VA outpatient treatment for complaints of a painful right foot, and requesting shoe inserts. A history of a partial right plantar fascia release and heel neuroma excision was noted. The examiner noted a scar in the medial right heel, and a good arch, though less than that of the unoperated left foot. There was some discomfort over the metatarsal head with squeezing. No Morton's neuroma was felt. The examiner diagnosed a post- operative status, and prescribed inserts. In April 1999 the veteran again received VA outpatient treatment for right foot complaints. She reported foot pain and work at a Post Office involving standing for six hours per day. Tenderness to pressure was found at the plantar- medial heel and along the metatarsal heads. Strain was expressed with dorsiflexion of the ankle joint. The examiner diagnosed plantar fasciitis. Prescriptions included stretching, shoes, ice, and taping. The veteran reported relief with use of heel lifts. At a VA joints examination in June 1999, the veteran's history of onset of right foot pain in service with surgical correction of plantar fasciitis was noted. The veteran reported constant pain in the affected area of the foot, worse with activity, but improved with rest. The examiner found active range of motion within normal limits in all joints of the right foot, sensation intact in the foot, and muscle strength 5/5 in the foot. Deep tendon reflexes were present at the Achilles tendon. There was pain on palpation over the medial and lateral surfaces of the foot. However, there were no bony or soft tissue abnormalities. The examiner assessed right foot pain with focal findings limited to pain on palpation, as noted above. VA X-rays of the right foot in June 1999 showed a small spur along the inferior aspect of the distal first metatarsal and a mild hallux valgus deformity. There was no evidence of fracture, abnormal soft tissue swelling, or dislocation. The examiner assessed mild hallux valgus and first metatarsophalangeal joint osteoarthritis. 1. a. 2) Analysis Under Diagnostic Code 5279, the existence of metatarsalgia (Morton's disease) unilaterally or bilaterally, warrants a 10 percent rating. There is no higher rating under this diagnostic code. Under Diagnostic Code 5284, a foot disability, including residuals of a foot injury, is rated 10 percent when moderately disabling, 20 percent when productive of moderately severe disability, and 30 percent when productive of severe foot disability. In this case, it is not clear whether the osteoarthritis at the first metatarsal joint of the right foot is due to the prior right foot surgery or exists as a separate condition. However, the Board will not attempt here to differentiate between pain and functional impairment due to the service- connected right foot disorder and that due to arthritis of the right foot. All right foot impairment will be attributed to the service-connected right foot disorder. The appropriate Diagnostic Code for evaluating the service- connected right foot disorder is Diagnostic Code 5284. Clinical findings in February 1999 revealed some discomfort over the right metatarsal head on squeezing. There was no postoperative recurrence of the Morton's neuroma. In April 1999 some tenderness of the right foot was noted on pressure. On VA examination in June 1999 there was normal motion of the foot, no impairment of sensation, and no impairment of muscle strength. The only functional impairment was pain on palpation. The veteran has testified as to pain in her right foot at the RO hearing. However, it is also indicated that the pain is amenable to medication and other treatment and it has not resulted in any significant time being lost from the veteran's full time employment. Upon consideration of all the evidence presented, the Board concludes that the veteran's right foot disorder, post operative status, has not been shown to be productive of more than moderate foot disability. Impairment of functioning, including due to pain, is not productive of moderately severe foot disability. Accordingly, the preponderance of the evidence is against entitlement to a higher evaluation than the 10 percent rating already assigned. Diagnostic Code 5284. Therefore, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. b. Sinusitis 1. b. 1) Factual Background In service in March 1988 the veteran complained of chills, nausea, scratchy eyes, and headaches. The examiner assessed mild sinus congestion and prescribed Drixoral and forced fluids. In service in April 1988 the veteran was treated for one day of symptoms including sore throat and coughing brown mucous, moderate headache, no ear ache, chills and fever, sinus congestion, and no chest congestion. The examiner found the throat, lungs, and tympanic membranes clear, but the sinuses tender. The examiner assessed sinusitis and prescribed amoxicillin as well as over-the-counter medication for treatment of symptoms. In service in July 1988 the veteran was treated for one day of head congestion, runny nose, and cough. There was tenderness over the maxillary sinuses bilaterally. The examiner diagnosed and treated the veteran for sinusitis. In service in February 1991 the veteran received outpatient treatment for multiple complaints including sinus difficulties, with pain around the eyes for the prior two weeks. The examiner found mild tenderness around the right eye. The examiner assessed and treated the veteran for possible sinusitis. In service in January 1993 the veteran was treated for complaints of facial pressure, ear pain, and congestion for the prior two weeks, with Motrin not helpful. The examiner found nose congestion and bilateral maxillary tenderness. The examiner assessed sinusitis and prescribed Bactrim, Humibid, and Tylenol #3. At the veteran's service separation examination in March 1996, no sinus disorder was found. At a VA general examination in October 1996, the veteran was noted to have seasonal sinus problems and to take over-the- counter medications with relief. In a VA Form 9 submitted in February 1997, the veteran stated that she went to bed with a headache three to four nights per week due to her sinus disorder. At an RO personal hearing in July 1997, the veteran testified that she had been on sick call from work over 10 times for her sinus disorder, and that she was taking over-the-counter medications for the past few years for the disorder. She testified that she had no ear aches or sore throats due to her sinus disorder, but she did have at least one or two headaches per week due to her sinus disorder. She added that her sleep was disturbed by the sinus problem due to drainage. The claims file contains a medical record of VA outpatient treatment for sinusitis in August 1998, wherein the veteran complained of sinus problems "on and off" for several years. She complained of currently having sinus pain for over a week, with post nasal drip, sore throat, and headaches. She complained that she was unable to sleep due to sinus pain. The examiner found right maxillary tenderness, and assessed acute or chronic sinusitis. A sinus computerized tomography (CT) scan of the veteran's sinuses was obtained in September 1998 which ruled out sinus abnormalities. The maxillary, ethmoid, sphenoid, and frontal sinuses were all well-aerated and without evidence of air fluid levels, or mucosal or bony thickening. The examiner assessed no evidence of acute or chronic sinusitis. In November 1998 the veteran again received VA treatment including for sinus problems. She was noted to be treating the disorder with Flonase. At a VA examination for the veteran's sinusitis in June 1999, the veteran reported that her most bothersome symptom was headaches, which occurred three days per week, worse in the evening and afternoon, involving the frontal area of the face and behind the eyes. She reported having been on multiple medical therapies, including a number of antibiotics, without improvement. She also reported having sneezing and nasal congestion year-round. The examiner noted that the veteran had a deviated nasal septum with complete left side nasal obstruction. There was also tenderness and pain over the maxillary and ethmoid sinuses to palpation. The lungs were clear. The examiner diagnosed chronic rhinal sinusitis, deviated nasal septum, nasal deformity, and chronic allergic rhinitis. 1. b. 2) Analysis The veteran's sinusitis was assigned a noncompensable rating by the RO. The veteran's claim for an increased rating for sinusitis dates from September 1, 1996, the day following the veteran's separation from service. During the pendency of the appeal, the criteria for evaluating respiratory disorders in the VA Schedule for Rating Disabilities, 38 C.F.R. § Part 4 (1996), was amended, effective October 7, 1996. See 61 Fed. Reg. 46720 through 46731 (September 5, 1996). The rating criteria for sinusitis have been modified. See 38 C.F.R. § 4.97, Diagnostic Code 6513. From the effective date of the revised regulations, the VA must apply the version of 38 C.F.R. Part 4 that is more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The veteran is currently rated as zero percent disabled for maxillary sinusitis under 38 C.F.R. § 4.97, Diagnostic Code 6513. As the veteran has been diagnosed with maxillary sinusitis, the Board finds this to be the appropriate Diagnostic Code. Under the rating criteria for maxillary sinusitis in effect prior to October 1996, a 30 percent rating is warranted for severe sinusitis, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence; a 10 percent evaluation is warranted for moderate chronic maxillary sinusitis manifested by discharge, crusting or scabbing and infrequent headaches; with x-ray manifestations only, mild or occasional symptoms, a noncompensable rating is assigned. Diagnostic Code 6513 (effective prior to October 7, 1996). Under the general rating criteria for sinusitis effective from October 1996, a noncompensable disability rating is assigned for sinusitis detected by x-rays only. A 10 percent disability rating is warranted where there are one or two incapacitating episodes of sinusitis per year that require prolonged (lasting four to six weeks) antibiotic treatment; or, three to six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent disability rating is warranted where there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or more than six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The current symptoms of sinusitis have included headaches, sinus tenderness, and complaints of a post nasal drip. There has been no clinical documentation of a purulent discharge or crusting reflecting purulence. The September 1998 VA CT examination found no evidence of either acute or chronic sinusitis. Without such X-ray findings of acute or chronic sinusitis, the veteran's sinusitis cannot be considered moderate in degree. Nor is it reasonable to conclude, considering the rating criteria, that sinusitis which is not visible on X-ray is productive of one or two incapacitating episodes per year or three to six non- incapacitating episodes per year. The requirements for a compensable rating for sinusitis under both the old and new criteria have not been met. 1. c. Fenderson v. West The Board has reviewed the entire record and finds that the 10 percent rating assigned for the veteran's right foot disorder, post operative status, and the noncompensable rating assigned for the veteran's sinusitis reflect the most disabling these disorders have been since the veteran was discharged from service and filed her claim for service connection, which is the beginning of the appeal period. Thus, the Board has concluded that staged ratings for these disorders are not warranted. Fenderson v. West, 12 Vet. App Vet. App. 119 (1999). 2. Service Connection Claims 2. a. Factual Background 2. a. 1) Left Knee Disorder In service in September 1976 the veteran was treated, in pertinent part, for left knee pain. With no focal findings referable to the knee, the examiner assessed a left muscle strain. In April 1987 the veteran complained of five days of pain in the left knee. The examiner assessed mild chondromalacia patella, and prescribed anti-inflammatory medication and two weeks of immobilization of the knee. The veteran was fitted with a left knee immobilizer. Upon two follow-ups two weeks later in April 1987, the veteran had a click in the left knee at one visit but no pain to McMurray's sign. There was a question of a meniscal tear. At the other visit she had slight tenderness with patellar manipulation. Chondromalacia patella was assessed. The veteran was placed on a limited duty profile in April and May, 1987, for chondromalacia patella. In service in May 1987 the veteran received outpatient treatment for complaints of left knee pain, worse with stairs and running. X-rays were negative. The examiner assessed chondromalacia patella. At the veteran's service separation examination in March 1996, the lower extremities were normal. At a post-service general VA examination in October 1996, the veteran had full range of motion in all extremities. However, upon performing deep knee bends her left knee tended to pop. In reference to the knee, the examiner assessed only an occasional popping sound. At a July 1997 hearing before a hearing officer at the RO, the veteran testified that her left knee problems began approximately 10 to 12 years prior, in service in Mississippi when she wrenched the knee, with much pain resulting. She testified that her difficulties with her right foot have led to difficulties with the left knee, as a result of altered gait. She testified that current symptoms included constant popping of the knee, stiffness, and soreness. At a VA examination of the veteran's joints in June 1999, a history of pain in the left knee with onset upon an accident in service in 1987 was noted. Upon examination, active range of motion of the knee was within normal limits and muscle strength pertaining to the joint was 5/5. Left patellar apprehension test and Apley grind test of the left knee were negative. There was no crepitus on range of motion of the knee and no mediolateral or anteroposterior instability of the knee. There was also no evidence of edema or erythema of the left knee. However, there was mild pain on palpation of the medial and lateral compartments of the knee. Gait was completely non-antalgic. The examiner assessed left knee pain with positive focal findings as noted above. June 1999 VA X-rays of the left knee showed a normal knee, with joint space well-preserved, and no evidence of fracture, effusion, or significant osteophyte development. In an October 1999 addendum to the June 1999 VA examination, the examiner added that the only focal finding was a positive apprehension test for the left knee. 2. a. 2) Back disorder In service in December 1979 the veteran was treated for back pain with no history of trauma. Bilateral lower paraspinal tenderness was found, right greater than left. Straight leg raising was positive bilaterally above 40 degrees. The examiner diagnosed muscle strain and treated this with Parafon Forte, rest, heat, a firm mattress, and lifting instructions. In service in February 1984 the veteran was treated for back pain since the night prior. There was tenderness over the scapular area. The examiner assessed musculoskeletal spasms and prescribed Parafon Forte. In service in January 1986 the veteran was treated for low back pain which appeared the morning she sought treatment, with no onsetting prior activity. The pain was greater on the right. The examiner found mild to moderate paraspinal spasm on the left at L5-S1. The examiner assessed and treated lumbosacral paraspinal spasm. At the veteran's service separation examination in March 1996, the spine was normal. However, subsequent treatment in April 1996 was for complaints of localized right-side back pain. The examiner found muscle spasm on the right side of the back. The examiner assessed low back pain and prescribed Flexeril. At a post-service general VA examination in October 1996, the veteran complained of occasional low back pain which would come and go without radiation. However, she had no pain on the day of examination. At a July 1997 hearing before a hearing officer at the RO, the veteran testified that she injured her back at least three times in service, with one of these injuries due to improper lifting. She added that she had treatment for her back in service, including heat and ultrasound. She testified that her back slowed her down in her work at the Post Office. She added that she loved to walk recreationally, but sometimes could not do so due to back and foot pain. At a VA examination of the veteran's joints in June 1999, a history was noted of low back difficulties beginning in 1985 after an accident in service, with a physician then diagnosing a strain. The veteran complained low back pain. Straight leg raising was negative bilaterally, but there was mild pain on palpation of the lumbosacral spine at L4-L5 and L5-S1. There was no evidence of muscle spasm or fasciculation of the lumbosacral paraspinal muscles. Active range of motion of the lumbosacral spine was within normal limits in all planes. Gait was completely non-antalgic, and there were no focal neuromuscular deficits. The examiner assessed low back pain. At a VA examination of the veteran for sinusitis in June 1999, the examiner noted stiffness in the back with some limitation of motion. X-rays of the lumbosacral spine in June 1999 showed minimal narrowing and a vacuum disc at L5-S1, and an otherwise unremarkable lumbosacral spine. 2. b. Analysis Initially, the Board finds the veteran's claims well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that her claims are plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Once it has been determined that the claims are well grounded, the VA has a statutory duty to assist the veteran in the development of evidence pertinent to the claims. 38 U.S.C.A. § 5107. The Board is satisfied that the RO has made all reasonable efforts to obtain all available evidence pertinent to the claims and that proper appellate development, including appropriate notice to the veteran, has been made. The Board is satisfied that all available evidence necessary for an equitable disposition of the appeal has been obtained. The Board therefore finds that the duty to assist has been met. The Board notes that in order to establish service connection for a disability, there must be objective evidence that establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 314 (1993). In this case, the veteran was treated in service on more than one occasion for a left knee disorder, diagnosed in service as chondromalacia patella. While such a diagnosis has not been ascribed to the veteran's left knee disorder post service, the June 1999 VA examiner did assess left knee pain as evidenced by pain on palpation, and, as noted in an October 1999 addendum to that examination, a positive apprehension test. The October 1996 VA examiner noted a clicking sound in the knee. The veteran submitted her claim for service connection for a left knee disorder the month following her separation from service, strongly suggesting that any claimed disorder then present had been present since service. She has testified to an ongoing left knee disorder manifested by pain. While a left knee disorder was not identified at the veteran's service separation examination, the Board nonetheless finds that the preponderance of the evidence favors the conclusion that the veteran suffers from a left knee disorder dating from service, as manifested by clicking and pain in that joint. As the evidence favors the claim, a grant of service connection for a left knee disorder is in order. The veteran has also testified that she suffers from a back disorder characterized by localized pain. She submitted a claim for entitlement to service connection for that disorder within a month of service separation. Service medical records show more than one instance of treatment for low back pain, including in April 1996, shortly before separation from service, when muscle spasm was identified and low back pain was assessed. While the veteran stated at the October 1996 VA examination that her low back pain was intermittent, and indeed was not present on the day of that examination, there was low back pain on palpation at the VA examination of the veteran's joints in June 1999, and that examiner diagnosed chronic low back pain. Some stiffness and limitation of motion of the back was noted upon a VA sinusitis examination in June 1999. Further, VA X-rays in June 1999 plainly showed a vacuum disc at L5-S1, which is evidence of possible disc degeneration. In sum, the Board concludes that the preponderance favors the veteran's claim that she suffers from a back disorder which developed in service. Accordingly, a grant of service connection is also warranted for a back disorder. ORDER 1. Entitlement to an increased rating above the 10 percent currently assigned for a right foot disorder, post operative status, is denied. 2. Entitlement to an increased (compensable) rating for sinusitis is denied. 3. Service connection for a left knee disorder is granted. 4. Service connection for a back disorder is granted. BRUCE E. HYMAN Member, Board of Veterans' Appeals