Citation Nr: 0000121 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 95-02 757A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to an initial evaluation in excess of 10 percent for right hammertoes with hallux valgus, plantar fasciitis, and a history of pes planus. 3. Entitlement to an initial evaluation in excess of 10 percent for left hammertoes with hallux valgus, plantar fasciitis, and a history of pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from February 1990 to October 1993. FINDINGS OF FACT 1. The claim for service connection for bilateral defective hearing is not supported by cognizable evidence showing that the disability was present in service, or is otherwise of service origin. 2. The veteran's service-connected pes planus is presently characterized by marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. 3. The veteran currently suffers from mild lateral (valgus) deviation of the toes of his right foot, with no evidence of severe hallux valgus. 4. The veteran currently suffers from mild lateral (valgus) deviation of the digits of his left foot, with no evidence of severe hallux valgus. 5. The veteran currently suffers from hammering of all of the toes of his right foot, without clawfoot. 6. The veteran currently suffers from hammering of all the toes of his left foot, without clawfoot. CONCLUSIONS OF LAW 1. The claim for service connection for bilateral defective hearing is not well grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1998). 2. A separate 30 percent evaluation for service-connected bilateral pes planus is warranted. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. § 4.3 and Part 4, Code 5276 (1998). 3. A separate (compensable) evaluation for hallux valgus of the right foot is not warranted. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. Part 4, Code 5280 (1998). 4. A separate (compensable) evaluation for hallux valgus of the left foot is not warranted. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. Part 4, Code 5280 (1998). 5. A separate 10 percent evaluation for hammertoes of the right foot is warranted. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. § 4.3 and Part 4, Code 5282 (1998). 6. A separate 10 percent evaluation for hammertoes of the left foot is warranted. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. § 4.3 and Part 4, Code 5282 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background On audiometric examination conducted as part of the veteran's service entrance examination in June 1989, pure tone air conduction threshold levels, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 0 0 0 0 15 LEFT 10 0 0 0 0 35 A service audiometric examination conducted in March 1990 revealed pure tone air conduction threshold levels, in decibels, as follows: HERTZ 50 0 1000 2000 3000 4000 6000 RIGHT 10 0 0 -10 5 0 LEFT 15 10 15 0 5 5 On service audiometric examination conducted in November 1991, pure tone air conduction threshold levels, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 25 20 200 25 40 30 35 LEFT 25 20 20 20 30 35 30 The speech reception threshold in each of the veteran's ears was 20 decibels, with speech discrimination ability of 100 percent for both the right and left ears. A service clinical entry dated in January 1992 was significant for the presence of "threshold shift." A service clinical record dated in February 1992 reveals that the veteran was seen at that time for followup of an audiometric "threshold shift." The clinical assessment was mild bilateral high frequency sensorineural hearing loss. It was recommended that the veteran utilize hearing protection, and undergo repeat audiometric evaluation in 4 to 6 months. In a Report of Medical Board Proceedings dated in December 1992, it was noted that, with the exception of the plantar surface of the veteran's feet, a physical examination of his extremities was unremarkable. Reportedly, the posterior portion of the plantar fascia was mildly edematous bilaterally, and there was evidence of mild pes planus. At the time of evaluation, the plantar fascia of the veteran's feet were not tender to palpation. On a relevant specialist examination, there was a moderate decrease in the longitudinal arch of the veteran's feet bilaterally, accompanied by pain in the medial plantar foot. Soft tissue tenderness was present bilaterally, and strength was described as "5 of 5." At the time of evaluation, the veteran's orthoses appeared to fit well. In an addendum to the aforementioned Medical Board Proceedings, apparently dated in June 1993, it was noted that the veteran had developed progressive bilateral heel pain with strenuous activity and prolonged standing. He was diagnosed with symptomatic pes planus, and prescribed arch supports and nonsteroidal antiinflammatory medication, in conjunction with limited duty. Apparently, this treatment failed to provide the veteran with any relief. Noted at the time was that the veteran's bilateral foot condition was ratable at 10 percent disabling, analogous to moderate bilateral acquired flatfoot, with a weightbearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. Severe pes planus was not present, and there was no marked deformity or evidence of characteristic callosities. Noted at the time was that the veteran's diagnosis of plantar fasciitis could not be separated from pes planus symptomatically, and was therefore to be "bracketed" with pes planus. Physical examination of the veteran's feet revealed a moderate decrease in the longitudinal arches, with mildly edematous posterior plantar fascia, and no tenderness. Further noted was that the medical record of ongoing care did not document the presence of heel or arch complaints. On service podiatric examination conducted in early June 1993, the veteran presented with a chief complaint of painful bunions, flat feet, and lumps on the dorsum of his feet. Reportedly, these had been painful for approximately two years. Physical examination revealed a prominent medial eminence of the first metatarsal head, as well as a laterally deviated hallux. There were digital contractures at the interphalangeal joints on digits 2 through 5, more so off weight bearing than on weight bearing. These were described as "flexible deformities." There was a mild hyperkeratosis on the plantar medial aspect of the right hallux interphalangeal joint, as well as a prominence at the first metatarsal cuneiform articulation dorsally, all of which were present bilaterally. Also noted was a decreased medial longitudinal arch, and increased pronation during gait. At the time of evaluation, there was evidence of mild edema at the proximal arch. Radiographic studies revealed a prominence to the first metatarsal head, with the hallux laterally deviated at the first metatarsophalangeal joint. At the time of evaluation, the hallux abductus angle was increased. The clinical impression was of bilateral hallux abducto valgus; bilateral hammertoes for digits 2 through 5; bilateral first metatarsal cuneiform exostoses; and bilateral pes planus. On Department of Veterans Affairs (VA) general medical examination in February 1994, the veteran gave a history of severe foot pain which had developed while he was in the Marine Corps. Reportedly, while stationed at Tripler Air Force Base, he was evaluated by a civilian podiatrist, who told him that he had plantar fasciitis, corresponding to the severe pain present in the plantar aspect of his heel. Since his discharge from the Marine Corps, the veteran had taken to wearing cowboy boots, which reportedly decreased his pain. In this manner, he was able to walk slowly, though were he to walk more quickly, he would experience increased pain. At the time of evaluation, the veteran additionally complained of muscle cramps in his arches bilaterally. On physical examination, there was no evidence of cyanosis, clubbing, or edema of the veteran's extremities. Hammertoes were present on the 2nd through 5th digits bilaterally, and there was a mild lateral (valgus) deviation of the same digits, accompanied by mild bunions. Radiographic studies of the veteran's feet showed evidence of mild bilateral hallux valgus, though the planus of the plantar arch was somewhat difficult to evaluate due to the absence of weightbearing films. The clinical assessment was of hammertoes, with a clinical history consistent with plantar fasciitis. Noted at the time of examination was that the presence or absence of pes planus could not be determined. On VA audiometric examination in February 1994, the veteran gave a history of exposure to helicopter noise, and a SCUD missile explosion. Audiometric examination revealed pure tone air conduction threshold levels, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 5 15 LEFT 15 10 10 10 5 At the time of evaluation, the pure tone average for the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz in the veteran's right ear was 10 decibels, with speech discrimination ability of 98 percent. The corresponding pure tone average for those same four frequencies in the veteran's left ear was 8 decibels, with speech discrimination ability of 100 percent. It was noted at the time of examination that, utilizing current VA criteria, the veteran's hearing acuity was within normal limits bilaterally. In March 1996, a private podiatric examination was accomplished. At the time of evaluation, the veteran complained of considerable pain, cramping, and discomfort throughout his lower extremities with even moderate levels of activity. Objective evaluation revealed an intact neurovascular status. Orthopedically, however, the veteran demonstrated a very significant degree of collapse and excessive pronation of the midtarsal and subtalar joints in stance and in gait. In stance, his calcanei were noted to be everted, which was somewhat worsened by late midtarsal pronation at toe-off. Further noted was that the veteran demonstrated an early heel-off quite consistent with significant gastrocnemius equinus. Subtalar joint range of motion was 15-16 degrees of inversion bilaterally, with 6 degrees of eversion, giving a neutral position of negative 1 degree. Of great significance was the presence of severe gastrocnemius equinus which was clearly demonstrated with bilateral measurements indicating negative 1 degree of ankle dorsiflexion with the knee extended, increasing to approximately 5 degrees with the knee flexed. Orthopedic evaluation of the veteran's feet revealed hammertoe deformities of all digits including the hallux, and there was hyperkeratosis present on the dorsal distal interphalangeal joints of the 2nd and 3rd toes bilaterally. Further noted was the presence of hyperkeratosis under metatarsals 2-5, which were tender to palpation. In the midfoot area, there was a protuberant painful early exostosis formation of the first metatarsal cuneiform joint, quite indicative of the onset of early degenerative joint disease and the presence of severe pes planus. This pes planus was also documented on X-ray, where there was a significant break in the cyma line, and decrease in the calcaneal inclination and talar declination angle. This was additionally evidenced by a radiographic navicular cuneiform fault. The presence of the first metatarsal cuneiform clinical exostosis, in conjunction with a radiographic navicular cuneiform fault, was felt to be significant for a marked degree of excessive pronation of the foot and ankle, as well as abduction of the forefoot secondary to that pronation. Following review of the 1992 Schedule of Ratings for the musculoskeletal subsection describing acquired flatfoot (i.e., Diagnostic Code 5276), the examiner was of the opinion that the veteran's foot deformities clearly demonstrated objective evidence of severe bilateral acquired flatfoot which was quite symptomatic, and which limited his ability to perform daily routine and occupational activities. To date, the veteran had not responded well to conservative care, and, therefore, surgery might be necessary at some point in the future to correct his problem. On VA podiatric examination in May 1996, the veteran complained of "pain all over" his feet, the exact location of which "varied at different times." The veteran additionally voiced complaints of hammertoes. Reportedly, the veteran's pain began at his heel, and was now present mostly on the lateral sides of the feet in the metatarsal area. According to the veteran, in 1993, he was seen by a civilian podiatrist, who informed him that he had "plantar fasciitis." At the time of evaluation, the veteran stated that he had received no treatment by either military or private sources, nor had he experienced any acute trauma. On physical examination, neurological and vascular evaluations were within normal limits. Examination of the veteran's skin revealed slight maceration under the right hallux, but no calluses, fissures, ulcers, edema, or other skin lesions. The texture of the veteran's skin, as well as its turgor and temperature, were within normal limits. Musculoskeletal examination revealed a tight medial slip of plantar fascia. Mild bunions were present, without symptoms of skin lesions, and muscle strength appeared normal. Range of motion was likewise normal, and the veteran was able to both heel and toe walk. The veteran exhibited a normal- appearing arch with his lower legs perpendicular to the ground, with bisection of the heels perpendicular to the ground, and with forefoot parallel to the rear foot (all normal). Flexible hammertoes were present bilaterally, though there was no evidence of any muscle, tendon, ligament, or joint contractures. Radiographic studies showed alignment within normal limits, with bone mineralization normal, and no evidence of definite abnormalities. The clinical impression at the time of examination was of flexible hammertoes without contractures or lesions. The physical finding of a tight medial slip of plantar fascia was felt to be consistent with the veteran's previous diagnosis of plantar fasciitis, though the veteran's current complaints were not consistent with that diagnosis. Further noted was that pes planus was not present. On VA audiometric examination, likewise conducted in May 1996, the veteran gave a history of noise exposure during combat in the Persian Gulf. Pure tone air conduction threshold levels, in decibels, obtained at that time were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 10 20 LEFT 20 15 15 15 10 The pure tone average for the frequencies 1,000, 2,000, 3,000, and 4,000 hertz in the veteran's right ear was 16 decibels, with speech discrimination ability of 96 percent. The pure tone average for those same four frequencies in the veteran's left ear was 13 decibels, with speech discrimination ability of 94 percent. At the time of evaluation, it was noted that the veteran's hearing was within normal limits bilaterally. Analysis Service Connection for Bilateral Defective Hearing. As to the issue of service connection for bilateral defective hearing, the threshold question which must be resolved is whether the veteran's claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim, meaning a claim which appears to be meritorious. See Murphy, 1 Vet. App. 81. A mere allegation that a disability is service connected is not sufficient; the veteran must submit evidence in support of his claim which would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91, (1993). The second and third elements of this equation may also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during an applicable presumptive period; (b) evidence showing post service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. See 38 C.F.R. § 3.303(b) (1998); Savage v. Gober, 10 Vet. App. 488 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumptive period and (ii) present manifestations of the same chronic disease. Ibid. For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim is presumed. See Robinette v. Brown, 8 Vet. App. 69 (1995). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1998). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113,1137 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1998). For the purpose of applying the laws administered by the VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies, 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies, 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1998). The veteran in this case argues that, while in service, he was exposed to noise from helicopters, Humvees, and a SCUD missile, as a result of which he presently suffers from a chronic hearing loss. While it is true that, at service entrance, and on various other occasions in service, the veteran exhibited a clinically identifiable hearing loss [see Hensley v. Brown, 3 Vet. App. 155 (1993)], on subsequent VA audiometric examination in February 1994, the veteran's hearing was entirely within normal limits bilaterally, with no evidence of "hearing loss disability" as defined by pertinent regulation. 38 C.F.R. § 3.385(1998). The Board observes that, on more recent VA audiometric examination in May 1996, the veteran's hearing was once again within normal limits, and there was no evidence of "hearing loss disability." See 38 C.F.R. § 3.385 (1998). Absent evidence of such disability, the veteran's claim for service connection for defective hearing is not well grounded, and must be denied. Increased Evaluations for Right and Left Hammertoes, with Hallux Valgus, Plantar Fasciitis, and a History of Pes Planus Turning to the issues of increased evaluations for the veteran's service-connected foot disorders, the Board notes that disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. § Part 4, (1998). In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2 (1998). However, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Though a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Finally, it is the intent of the Schedule for Rating Disabilities to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. §§ 4.45, 4.59 (1998). This is to say that, even absent a definable limitation of motion, where there is functional disability due to pain, supported by adequate pathology, compensation may be warranted. 38 C.F.R. § 4.40 (1998); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). In the present case, service connection is in effect for right and left hammertoes, with hallux valgus, plantar fasciitis, and a history of pes planus. Service connection and an initial 10 percent evaluation for each of the veteran's feet was made effective October 30, 1993, the date following the veteran's discharge from service. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In Fenderson, the United States Court of Appeals for Veterans Claims also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found in the appeal period. However, evaluation of the same disability under varying diagnoses must be avoided. 38 C.F.R. § 4.14 (1995); Esteban v. Brown, 6 Vet. App. 259 (1994). In determining whether a separate rating is appropriate, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other. In the present case, the veteran argues that he should be afforded "separate and distinct" ratings for his various service-connected foot pathologies. In that regard, at the time of the aforementioned addendum to Medical Board proceedings in December 1992, it was noted that the veteran's diagnosis of plantar fasciitis "could not be separated" symptomatically from pes planus. Clearly then, the veteran's pes planus and plantar fasciitis must be rated as "one and the same" disability. In that same addendum, the veteran's bilateral foot condition was described as analogous to a "moderate" bilateral acquired flatfoot, with the weightbearing line over or medial to the great toe, and inward bowing of the tendo achillis accompanied by pain on manipulation and use of the feet. While at the time of evaluation, severe pes planus was felt not to be present, on private podiatric examination in March 1996, there was noted the onset of "early degenerative joint disease and the presence of severe pes planus." Reportedly, this pes planus was documented on radiographic studies, where there was a significant break in the cyma line, as well as decrease in the calcaneal inclination and talar declination angle. In the opinion of the examiner, the veteran's foot deformities "clearly demonstrated" objective evidence of "severe bilateral acquired flatfoot" which was quite symptomatic, and which limited the veteran's ability to perform daily routine and occupational activities. The Board notes that, in order to warrant an increased evaluation for service-connected pes planus, there must be demonstrated the presence of severe bilateral acquired flatfoot (pes planus) manifested by marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. 38 C.F.R. § Part 4, Code 5276 (1998). While it is true that, on recent VA podiatric examination in May 1996, pes planus was felt not to be present, the weight of the evidence appears to be that the veteran does, in fact, suffer from service-connected bilateral acquired flatfoot which is, at least arguably, severe. Under such circumstances, the Board is of the opinion that a separate 30 percent evaluation for bilateral acquired flatfoot (pes planus) is in order. 38 C.F.R. § 4.3 (1998). Turning to the issue of a "separate and distinct" compensable evaluation for the veteran's service-connected hallux valgus, the Board notes that, on VA general medical examination in February 1994, there was present only a mild lateral (valgus) deviation of the 2nd through 5th digits of each of the veteran's feet. Subsequent private and VA podiatric examinations fail to demonstrate the presence of severe unilateral hallux valgus equivalent to amputation of the great toe requisite to the assignment of an increased evaluation. Under such circumstances, a "separate and distinct" compensable evaluation for service-connected hallux valgus of the right or left foot is not in order. Finally, turning to the issue of a separate compensable evaluation for hammertoes of each foot, the Board notes that such an evaluation is warranted where there is hammering of all toes of a given foot, without evidence of clawfoot. 38 C.F.R. § Part 4, Code 5282 (1998). In the present case, at the time of the aforementioned VA general medical examination in February 1994, hammertoes were present on the 2nd through 5th digits of each of the veteran's feet. Private podiatric examination in March 1996 revealed hammertoe deformities of all of the digits, including the hallux, as well as hyperkeratosis on the dorsal distal interphalangeal joints of the 2nd and 3rd toes bilaterally. As of the time of a recent VA podiatric examination in May 1996, there was once again noted the presence of flexible hammertoes bilaterally. Based upon such findings, and with the resolution of all reasonable doubt in the veteran's favor, the Board is of the opinion that a separate 10 percent evaluation for hammertoes of each foot is in order. 38 C.F.R. § 4.3 and Part 4, Code 5282 (1998). In reaching the above determinations, the Board has given due consideration to the veteran's testimony given at the time of a Regional Office (RO) hearing in March 1996. Such testimony, however, as regards the issues of service connection for defective hearing, and separate compensable evaluations for service-connected plantar fasciitis or hallux valgus, is not probative when taken in conjunction with the entire objective medical evidence presently on file. The Board does not doubt the sincerity of the veteran's statements. Those statements, however, in and of themselves, do not provide a persuasive basis for a grant of the benefits sought in light of the evidence as a whole. ORDER Service connection for bilateral defective hearing is denied. A 30 percent evaluation for bilateral acquired flatfoot (pes planus) with plantar fasciitis is granted, subject to those regulations governing the award of monetary benefits. A 10 percent evaluation for right hammertoes is granted, subject to those regulations governing the award of monetary benefits. A 10 percent evaluation for left hammertoes is granted, subject to those regulations governing the award of monetary benefits. A separate (compensable) evaluation for hallux valgus of the right foot is denied. A separate (compensable) evaluation for hallux valgus of the left foot is denied. S. F. Sylvester Acting Member, Board of Veterans' Appeals